^iil 


mimi 


JOSEPH 

LEO 
HY/AAN 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


■% 


THE 


CIVIL  CODE. 


THE 

CIVIL  CODE 

OP  THE 

STATE  OF  CALIFOKNIA. 

ADOPTED  MARCH  21,  1872. 

WITH  AMENDMENTS  UP  TO  AND  INCLUDING  THOSE 

OF  THE  FORTY-FIRST  SESSION  OF  THE 

LEGISLATURE,  1915. 

EDITED  BY 

JAMES  H.  DEEEING, 

Of  the  San  Francisco  Bar. 

LEGISLATIVE  HISTORY  BY 
CHARLES    H.    FAIRALL, 

AUTHOR  OF  FAIRALL'S   CRIMINAL  LAW  AND   PROCEDURE. 


SAN  FRANCISCO: 
BANCROFT-WHITNEY  COMPANY, 

1915. 


/, 


Copyright,  1915 

BY 

BANCROFT-WHITXEY  COMPANY 


Sax  Fraxcisco 

The  Filmer  Brothers  Electrotype  Company 

Typogeaphebs  and  Stereotypebs 


SUMMARY  OF  CONTENTS. 

TITLE  OF  THE  ACT.     §  1. 
PRELIMINARY  PROVISIONS.     §§  2-21. 

DIVISION  FIRST.  PERSONS.     §§  25-653zb. 

SECOND.  PROPERTY.     §§  654-1426s. 

THIRD.  OBLIGATIONS.     §§1427-3268." 

FOURTH.  GENERAL  PROVISIONS.     §§  3274-3543. 


DIVISION  FIE  ST. 

Part    I.  Persons.     §§  25-42. 

II.  Personal  Rights.     §§  43-54. 

III.  Personal  Relations.     §§  55-276. 

IV.  Corporations.     §§  2S3-653zb. 


PART  I. 

PERSONS.     §§  25-42. 

PART  II. 

^  PERSONAL  RIGHTS.     §§  43-54. 


V 


PART  III. 


PERSONAL  RELATIONS. 

Title  I.     Marriage.     §§  55-181. 

II.     Parent  and  Child.     §§  193-230, 
III.     Guardian  and  Ward.     §§  236-258. 
"H  \        IV.     Master  and  Apprentice.     §§264-276. 


TITLE  I. 

MARRIAGE. 

Chapter  I.     The   Contract   of  Marriage.     Articles   I-III.     §§55-80. 
IL     Divorce.     Articles  I-IV.     §§  82-148. 
in.     Husband  and  Wife.     §§  155-181. 

(V) 


768178 


VI 


SUMMARY    OF  CONTENTS, 


TITLE  II. 

PARENT  AND  CHILD. 

Chapter  I.     Children  bv  Birth.     §§  193-215. 

II.     Children  by  Adoption.     §§  221-230. 

TITLE  III. 

GUARDIAN  AND  WARD.     §§236-258. 

TITLE  IV. 

MASTER  AND  APPRENTICE.     §§264-276. 


PART  IV. 
CORPORATIONS. 


Title  I.     General  Provisions  Applicable  to  All  Corporations.     §§  283- 
410. 
II.     Insurance  Corporations.     §§414-453hh. 
III.     Railroad  Corporations.     §§454-494. 
rv.     Street-railroad  Corporations.     §§  497-511. 
V.     Wagon -ROAD  Corporations.     §§  512-524. 
VI.     Bridge,  Ferry,  Wuarf,  Chute,  and  Pier  Corporations.     §§  528- 

531. 
VII.     Telegraph  and  Telephone  Corporations.     §§  536-541. 
VIII.     Water  and  Canal  Corporations.     §§  548-552. 
IX.     Homestead  Corporations.     §§  557-566. 
X.     Savings  and  Loan  Corporations.     §§  571-583b. 
XL     Mining  Corporations.     §§  584-590. 

XIa.     Corporations  for  the  Formation  of  Chambers  of  Commerce, 
Boards  op  Trade,  Mechanics'  Institutes,  and  Other  Kindred 
AS.SOCIATIONS.     §§  591-592e. 
XII.     Religious,  Social,  and  Benevolent  Corporations     §§  593-605. 
Xlla.     Societies  for  the  Prevention  of  Cruelty  to  Children  and  Ani- 
mals.    §§  607-607g. 
XIII.     Cemetery  Corporations.     §§  608-616. 
XIV.     A<;ricultural  Fair  Corporations.     §§  620-622.  ' 
XV.     Corporations  to  Furnish  Light  for  Public  Use.     §§  628-632. 
XVI.     Land  and  Building  Corporations.     §§  633-648a. 
XVII.     Colleges  and  Seminaries  of  Learning.     §§649-651. 
XVIII.     Consolidation  of  Colleges  and  Institutions  of  Higher  Edu- 
cation.    §§  652,  653. 
XIX.     Co-operative  Business  Corporations.     §  653a. 
XX.     Co-operative  Business  Associations.     §§653b-6531. 
XXI.     Non-profit  Co-operative  Agricultural,  Viticultural  and  Hor- 
ticultural AS.SOCIATIONS.      §§  653m-653s. 
-     XXTT.     Non-profit  Co-operative  Corporations.     §§  653t-653zb. 


SUMMARY   OF   CONTENTS.  Vll 

TITLE  I. 

GENEEAL  PROVISIONS  APPLICABLE  TO  ALL  CORPORATIONS. 

Cha|1fer  I.  Formation   of  Corporations.     Articles  I,  11.     §§  283-321b. 

IL  Corporate  Stock.     Articles  I,  II.     §§  322-349. 

III.  Corporate  Powers.     Articles  I-IV.     §§  354-393. 

IV.  Extension  and  Dissolution  of  Corporations.     §§  399-403. 

V.  General  Provisions  Affecting  Corporations.     §§  403,  404. 

VI.  Foreign  Corporations.     §§  405-410. 

TITLE  II. 

INSURANCE  CORPORATIONS. 

Chapter  I.     General  Provisions.     §§  414-422. 

II.     Fire,  Marine,  and  Title  Insurance  Corporations.     §§424-432. 
III.     Mutual  Life,   Health,   and   Accident    Insurance    Corporations. 

§§  437-452. 
IV.     Mutual  Benefit  and  Life  Associations.     §§  452a,  453. 
V.     Corporations  to  Discover  Fire  and  Save   Property  and  Human 
Life  from  Destruction  Thereby.     §§  453a-453c. 
VI.     Life,  Health,  Accident,  and  Annuity  or  Endowment  Insurance 
on  the  Assessment  Plan.     §§  453d-453p. 
VII.     Title  Insurance  Corporations.     §§  453s-453z. 
VIII.     Mortgage  Insurance.     §§  453aa-453hh. 

TITLE  III. 

RAILROAD  CORPORATIONS. 

Chapter  I.     OflBcers  and  Corporate  Stock.     §§  454-459. 
II.     Enumeration  of  Powers.     §§465-478. 
III.     Business,    How   Conducted.     §§  479-494. 

TITLE  IV. 

STREET-RAILROAD  CORPORATIONS.     §§497-511. 

TITLE  V. 

WAGON-ROAD  CORPORATIONS.     §§  512-524. 

TITLE  VI. 

BRIDGE,    FERRY,    WHARF,    CHUTE,    AND    PIER    CORPORATIONS. 

§§  528-531. 

TITLE  VII. 

TELEGRAPH   AND   TELEPHONE    CORPORATIONS.     §§  536-541. 

TITLE  VIII. 

WATER  AND  CANAL  CORPORATIONS.     §§  548-552. 

TITLE  IX. 

HOMESTEAD   CORPORATIONS.     §§557-566. 


vm  SUMMAKV    OF   CUNTKNTS. 

TITLE  X. 

SAVINGS  AND  LOA.X    (  ( )  IJl'OK'ATlONy.     S§571-r)S3b. 

TITLE  XL 

MINING  COKM'OKWTIONS.     §§  584-590. 

TITLE  Xln. 

CORPORATION'S  FOR  TIIP]  RliniATION  OF  CHAMBERS  OF  COM- 
MERCE, BOARDS  OF  TRADE,  MECHANICS'  INSTITUTES,  AND 
OTHER  KINDRED  ASSOCIATIONS.     §§  591-592e. 

TITLE  XIL 

RELIGIOUS.  SOCIAL.  AND  BENEVOLENT  CORPORATIONS.     §§593- 

605. 

TITLE  Xlla. 

SOCIETIES  FOR  THE  PREVENTION  OF  CRUELTY  TO   CHILDREN 
AND  ANIMALS.     §§  fi07-607g. 

TITLE  XIII. 

CEMETERY  CORPORATIONS.     §§  608-616. 

TITLE  XIV. 

AGRICI'LTURAL  FAIR  CORPORATIONS.     §§620-622. 

TITLE  XV. 

CORPORATIONS   TO   FURNISH   LIGHT   FOR  PUBLIC   USE.     §§628- 

632. 

TITLE  XVI. 

LAND  AND  BUILDING  CORPORATIONS.     §§  633-648a. 

TITLE  XVII. 

COLLEGES  AND  SEMINARIES  OF  LEARNING.     §§  649-651. 

TITLE  XVIII. 

CONSOLIDATION  OF  COLLFGES  AND  INSTITUTIONS  OF  HIGHER 
EDUCATION.     §§  652,  653. 

TITLE  XIX. 

CO-OPERATIVE  BUSINESS  CORPORATIONS.     §  653ji. 


SUMMARY   OF   CONTENTS.  IX 

TITLE  XX. 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS.     §§  653b-653  1. 

TITLE  XXI. 

NON-PROFIT     CO-OPERATIVE     AGRICULTURAL,     VITICULTURAL 
AND  HORTICULTURAL  ASSOCIATIONS.     §  653m-653s. 

TITLE  XXIL 

NON-PROFIT    CO-OPERATIVE   CORPORATIONS.     §§  6o3t-653zb. 


DIVISION  SECOND. 

Part  I.  Property  in  General.     §§  654-749. 

II.  Real  or  Immovable  Property.     §§  755-940. 

III.  Personal  or  Movable  Property.     §§  946-995. 

IV.  Acquisition  of  Property.     §§  1000-1426s. 


PART  I. 
PROPERTY  IN  GENERAL. 

Title  I.     Nature   of   Property.     §§  654-663. 
II.     Ownership.     §§  669-742. 
III.     General  Definitions.      §§  748,  749. 

TITLE  I. 

NATURE   OF  PROPERTY.        §§  654-663.     " 

TITLE  11. 

OWNERSHIP. 
Chapter  I.     Owners.     §§  669-672. 

II.     Modifications   of    Ownership.     Articles    I-IV.     §§  678-726. 

III.  Rights  of  Owners.     §§  732,  733. 

IV.  Termination  of  Ownership.     §§  739-742. 

TITLE  III. 

GENERAL  DEFINITIONS.     §§  748,  749. 


SUMMARY    OF   CONTENTS. 

PART  II. 

REAL  OR  IMMOVABLE  J'ROPHRTY. 

Title  I.  General  Provisions.     §  TS."). 

H.  Estates  IN  Real  Property.     §§7(51-811. 

III.  RiuHTs  AND  Obligations  of  Owners.     §§  818-843. 

rv.  Uses  and  Trusts.     §§  847-871. 

V.  Powers.     §§878-940.     [Repealed.] 

TITLE  I. 

GENERAL  PROVISIONS.     §  755. 

TITLE  IT. 

ESTATES  IN  REAL  PROPERTY. 

\  Chapter  I.     Estates  in  General.     §§  761-781. 
I  IL     Termination  of  Estates.     §§  789-793. 

III.     Servitudes.     §§  801-811. 

TITLE  TIL 

RIGHTS  AND  OBLIGATIONS  OF  OWNERS. 
Chapter  L     Rights  of  Owners.     Article's  T,  IL     §§818-834. 
I  IL     Obligations  of  Owners.     §§  840-843. 

TITLE  IV. 

USES  AND  TRUSTS.     §§  847-871. 

TITLE  V. 

POWERS.     §§878-940.     [Repealed.] 

PART  III. 
PERSONAL  OR  MOVABLE  PROPERTY. 

Title  I.     Personal  Property  in  General.     §§  946,  94J. 

IL     Particular  Kinds  of  Personal  Property.     §§  953-995. 

TITLE  I. 

PERSONAL  PROPERTY  IN  GENERAL.  §§946,  947. 


SUMMAEY  OP  CONTENTS.  XI 

TITLE  II. 

PARTICULAE  KINDS  OF  PERSONAL  PROPERTY. 

Chapter  I.  Things  in  Action.     §§  953,  955. 

II.  Shipping.     Articles  I,  II.     §§  960-973. 

III.  Products  of  the  Mind.     §§  980-985. 

IV.  Other  Kinds   of   Personal   Property.     §§  991-995. 

PAET  IV. 
ACQUISITION  OF  PROPERTY. 

Title  I.  Modes  in  Which  Property  may  be  Acquired.     §§  1000,  1001. 

I  II.  Occupancy.     §§  1006,  1007. 

III.  Accession.     §§  1013-1033. 

IV.  Transfer.     §§  1039-1231. 

V.  Homesteads.     §§  1237-1269c. 

VI.  Wills.     §§  1270-1377. 

VII.  Succession.     §§  1383-1409. 

VIII.  Water  Eights.     §§  1410-1422. 

IX.  Hydraulic  Mining.     §§  1424,  1425. 

X.  Mining  Claims,   Tunnel  Rights,   and  Mill   Sites.     §§  1426- 
1426s. 

TITLE  I. 

MODES  IN  WHICH  PROPERTY  MAY  BE  ACQUIRED.     §§  1000,  1001. 

TITLE  II. 

OCCUPANCY.     §§  1006,  1007. 

TITLE  III. 

ACCESSION. 

Chapter  I.     To  Real  Property.     §§  1013-1019. 

II.     To  Personal  Property.     §§  1025-1033. 

TITLE  IV. 

TRANSFER. 

Chapter  I.  Transfer  in  General.     Articles  I-V.     §§  1039-1085. 

II.  Transfer  of  Real  Property.     Articles  I,  II.     §§  1091-1115. 

III.  Transfer  of  Personal  Property.     Articles  I-III.     §§  1135-1153. 

IV.  Recording      Transfers      of      Real      Property.     Articles      I-IV. 

§§  1158-1218. 
V.     Unlawful  Transfers.     §§  1227-1231. 

TITLE  V. 

HOMESTEADS. 

Chapter  I.  General  Provisions.     §§  1237-1261. 

II.  Homestead  of  the  Head  of  a  Family.     §§  1262-1265. 

III.  Homestead  of  Other  Persons.     §§  1266-1269. 

rV.  Alienation  of  Homesteads  of  Insane  Persons.     §§  1269a-1269c. 


Xn  SUMMARY    OF  CONTENTS. 

TITLE  VI. 

WII-LS. 

Chapter   I.     ExiH'iitimi  niid    Kovocation  of  Wills.     §§  1270-1313. 

II.     Iiitor|)n'tati(ni    of    Wills,    and    Effect    of    Various    Provisions. 
§§  1317-13r)l. 
111.     General  Provisions  Kciatinjf  to  Wills.     §§  13r)7-1377. 

]  TITLE  VII. 

SUOCESSTOX.     §§1383   1109. 
I 

TITLE  VIII. 

W.VTER  RIGHTS.     §§  1410-1422. 

TITLE  IX. 

HYDRAULIC  MINING.     §§  1424,   1425. 

TITLE  X. 

MINING   CLAIMS,   TUNNEL   RIGHTS,   AND    MILL   SITES.     §§  1426- 

1426s. 


DIVISION  THIRD. 

Part  I.     Obligations  in  General.     §§  1427-1543. 
II.     Contracts.     §§  1549-1701. 
III.     Obligations  Imposed  by  Law.     §§  1708-1715. 
rv.     Obligations  Arising  from  Particul^vr  Transactions.     §§  1721- 
3268. 

PART  I. 

OBLIGATIONS  IN  GENERAL. 

Title  I.  Definition  of  Obligations.     §§  1427,  1428. 

II.  Interpretation  of  Obligations.     §§  1429-1451. 

III.  Transfer  op  Obligations.     §§  1457-1468. 

IV.  Extinction  op  Obligations.     §§  1473-1543, 

TITLE  I. 

DEFINITION  OF  OBLTCATTONS.     §§1427,   1428. 


SUMMARY    OF   CONTENTS.  XUi 

TITLE  II. 

INTERPRETATION  OF  OBLIGATIONS. 

Chapter  I.  General  Rules  cf  Intorpretation.     §  1429. 

II.  Joint  or  Several  Obligations.     §§  1430-1432. 

III.  Conditional  Obligations.     §§  1434-1442. 

IV.  Alternative  Obligations.     §§  1448-1451. 

TITLE  III. 

TRANSFER  OF  OBLIGATIONS.     §§  1457-1468. 

TITLE  IV. 

EXTINCTION  OF  OBLIGATIONS. 

Chapter  I.  Performance.     §§  1473-1479. 

11.  Offer  of  Performance.     §§1485-1505. 

III.  Prevention  of  Performance  or  Offer.     §§  1511-1515. 

IV.  Accord  and  Satisfaction.     §§  1521-1524. 
V.  Novation.     §§  1530-1533. 

VL     Release.     §§  1541-1543.  v 

PART  II. 

CONTRACTS. 

Title.  I.  Nature  of  a  Contract.     §§  1549-1615. 

II.  Manner  of  Creating  Contracts.     §§  1619-1629. 

in.  Interpretation  of  Contracts.     §§  1635-1661. 

IV.  Unlawful  Contracts.     §§  1667-1676. 

V.  Extinction  of  Contracts.     §§  1682-1701. 

TITLE  I. 

NATURE  OF  A  CONTRACT. 

Chapter  I.  Definition.     §§  1549,  1550. 

II.  Parties.     §§  1556-1559. 

IIL  Consent.     §§  1565-1589. 

IV.  Object.     §§  1595-1599. 

V.  Consideration.     §§  1605-1615. 

TITLE  II. 

MANNER  OF  CREATING  CONTRACTS.     §§  1619-1629. 

TITLE  III. 

INTERPRETATION   OF   CONTRACTS.     §§  1635-1661. 

TITLE  IV. 

UNLAWFUL  CONTRACTS.     §§  1667-1676. 


xiv  SUMMARY    OP   CONTENTS. 

TITLE  V. 

EXTINCTION  OF  CONTRACTS. 

Chaptor  I.     Contracts,  How  Extinguished.     §  1682. 
ir.     Rescission.     §§1088-1691. 
111.     Alteration  and  Cancellation.     §§  1697-1701. 

PART  III. 

OBLIGATIONS  IMPOSED  BY  LAW.     §§  1708-1715. 


PART  IV. 

OBLIGATIONS    ARISING    FROM    PARTICULAR    TRANS- 
ACTIONS. 

Title  L  Sale.     §§ 1721-1798. 

IL  Exchange.     §§1804-1807. 

in.  Deposit.     §§  1813-1878. 

rV.  Loan.     §§  1884-1920. 

V.  Hiring.     §§  1925-1959. 

VI.  Service.     §§  1965-2079. 

VIL  Carriage.     §§  2085-2209. 

VIIL  Trust.     §§  2215-2289. 

IX.  Agency.     §§  2295-2389. 

X.  Partnership.     §§  2395-2520. 

XL  Insurance.     §§  2527-2766. 

XIL  Indemnity.     §§  2772-2781. 

XIIL  Guaranty.     §§  2787-2866. 

XIV.  Lien.     §§  2872-3080. 

XV.  Negotiable  Instruments.     §§  3086-3262. 

XVI.  General  Provisions.     §  3268. 

TITLE  I. 

SALE. 

Chapter  I.     General   Provisions.     Articles  I-IIT.     §§  1721-1741. 

II.     Rights  and  Obligations  of  the  Seller.     Articles  I-III.    §§  1748- 
1778. 
UL     Rights  and  Obligations  of  the  Buyer.     §§  1784-1786. 
rV.     Sale  by  Auction.     §§  1792-1798. 

TITLE  IL 

EXCHANGE.     §§  1804-1807. 


SUMMARY   OF   CONTENTS.  XV 

TITLE  III. 

DEPOSIT. 

Chapter  I.     Deposit  in  General.     Articles   I,   II.     §§  1813-1828. 
II.     Deposit  for  Keeping.     Articles  I-V.     §§  1833-1872. 
III.     Deposit  for  Exchange.     §  1878. 


TITLE  IV. 

LOAN. 

Chapter  T.     Loan  for  Use.     §§  1884-1896. 

II.     Loan  for  Exchange.     §§  1902-1906. 
in.     Loan  of  Money.     §§  1912-1920. 

TITLE  V. 

HIRING. 

Chapter  I.     Hiring  in  General.     §§  1925-1935. 

IL     Hiring  of  Real  Property.     §§  1941-1950. 
in.     Hiring  of  Personal  Property.     §§  1955-1959. 

TITLE  VL 

SERVICE. 

Chapter  I.     Service   with  Employment.     Articles  I-IV.     §§  1965-2003. 
II.     Particular  Employments.     Articles  I-VL     §§  2009-2072. 
III.     Service  without  Employment.     §§  2078,  2079. 


TITLE  VIL 

CARRIAGE. 

Chapter  L  Carriage  in  General.     §§  2085-2090. 

IL  Carriage  of  Persons.     Articles  I,  II.     §§  2096-2104. 

III.  Carriage   of  Property.     Articles   I-V.     §§  2110-2155. 

IV.  Carriage  of  Messages.     §§  2161,  2162. 

V.     Common  Carriers.     Articles  I-IV.     §§  2168-2209. 


TITLE  VIII. 

TRUSTS. 

Chapter  I.     Trusts  in  General.     Articles  I-IIL     §§  2215-2244. 

IL-   Trusts    for    the    Benefit    of    Third    Persons.     Articles    I- VI. 
§§  2250-2289. 

TITLE  IK. 

AGENCY. 

Chapter  I.     Agencv  in  General.     Articles  I-VL     §§  2295-2356. 
IL     Particular   Agencies.     Articles   I-IV.     §§  2362-2389. 


XVI  SU.MMAKV    OF    CONTENTS. 

TITLE  X. 

rABTNERSlllP. 

I     Chapter   I.  I'artnorshi|.  in  Goiur.il.      Articlps   I-IV.      §§  2:?0.1-241S. 

I  li.  (ioncral    Pa.rtnorsliip.     Articles   I-VII.     §§  Ii424-1'472. 

\  III.  Spocial    rartnorship.     Articles   I-IV.     §§2477-2510. 

\  rV.  :\Iiniiig  PartiHM-sliip.     §§  2.')ll-2rv_>0. 

TITLE  XL 

INSURANCE. 

Chapter  L  Insurance  in  General.     Articles  I-XIT.     §§  2527-2649. 

II.  Marine  Insurance.     Articles  I-IX.     §§  2(555-2746. 

ITT.  Fire  Insurance.     §§  2752-2757. 

IV.  Life  and  Health  Insurance.     §§  2762-2766. 

TITLE  Xll. 
INDEMNITY.     §§  2772-2781. 

TITLE  XIII. 

GUARANTY. 

Chapter  T.     Guaranty  in  General.     Articles  I-VI.     §§  2787-2825. 
II.     Suretyship.     Articles  I-V.     §§  2831-2866. 

TITLE  XIV. 

LIEN. 

Chapter  I.  Liens   in   General.     Articles   I-VI.     §§  2872-2913. 

II.  Mortgage.     Articles  I-III.     §§  2920-2973. 

III.  Pledge.     §§2986-3011. 

rV.  Bottomry.     §§  3017-3029. 

V.  Respondentia.     §§  3036-3040. 

VL  Other  Liens.     §§3046-3065. 

VII.  Stoppage  in  Transit.     §§  3076-3080. 

TITLE  XV. 

NEGOTIABLE  INSTRUMENTS. 

Chapter  I.     Negotiable  Instruments  in  General.     Articles  I-VII.     §§  3086- 
3165. 
II.     Bills  of  Exchange.     Articles  I-VIII.     §§3171-3228. 
III.     Promissory  Notes.     §§3244-3248. 
IV.     Checks.     §§3254,  3255. 
V.     Bank  Notes  and  Certificates  of  Deposit.     §§  3261,  3262. 

TITLE  XVI. 

GENERAL  PROVISIONS.     §  3268. 


SUMMARY   OF   CONTENTS. 


XVll 


DIVISION  FOURTH. 


Part    I.  Relief.     §§  3274-3423. 

II.  Special  Relations  of  Debtor  and  Creditor. 

III.  Nuisance.     §§  3479-3503. 

rv.  Maxims  OF  Jurisprudence.     §§3509-3543. 


§§  3429-3473. 


PART  I. 
RELIEF. 

Title  T.     Relief  in  General.     §§  3274,  3275. 
II.     Compensatory  Relief.     §§  3281-3360. 
in.     Specific  and  Preventive  Relief.     §§  3366-3423. 

TITLE  I. 

RELIEF  IN  GENERAL.     §§  3274,  3275. 

TITLE  II. 

COMPENSATORY  RELIEF. 

Chapter  L     Damages   in    General.     Articles    I-ITT.     §§  3281-3294. 
IL     Measure  of  Damages.     Articles  I-IV.     §§  330U-3360. 

TITLE  III. 

SPECIFIC  AND  PREVENTIVE  RELIEF. 

Chapter  I.     General  Principles.     §§  3366-3369. 

II.     Specific  Relief.     Articles  I-VL     §§  3375-3415. 
IIL     Preventive  Relief.     §§3420-3423. 


PART  II. 

SPECIAL  RELATIONS  OF  DEBTOR  AND  CREDITOR. 

Title  L     General  Principles.     §§  3429-3433. 

II.     Fraudulent  Instruments  and  Transfers.     §§  3439-3442. 
III.     Assignments  fob  the  Benefit  of  Creditors.     §§  3449-3473. 

TITLE  I. 

GENERAL  PRINCIPLES.     §§  3429-3433. 

TITLE  II. 

FRAUDULENT   INSTRUMENTS   AND   TRANSFER.     §§3439-3442. 

TITLE  III. 

ASSIGNMENT  FOR  THE  BENEFIT  OF  CREDITORS.     §§3449-3473. 


PART  III. 
NUISANCE. 

Title  T.     Generai,  Principles.     §§  3479-3484. 
II.     I'l'Bi.ic  Nuisances.     §§  3490-;i49;"). 
III.     Private  Nuisances.     §§3501-3503. 

TITLE  I. 

GENERAL  PRINCIPLES.     §§  3479-3484. 

TITLE  TL 

PUBLIC  NUISANCES.     §§  3490-3495. 

TITLE  III. 

PRIVATE  NUISANCES.     §§  3501-3503. 

PART  IV. 

MAXIMS  OF  JURISPRUDENCE.     §§  3509-3543. 

APPENDIX. 

Pajie 

Acknowledgments   839 

Animals 840 

Banking    842 

Bonds  940 

Corporations 941 

Deeds   950 

g ijardians 951 

Homesteads   951 

Infancy 952 

Insurance  953 

Irrigation   964 

Liens 964 

Master  and  Servant 967 

Mines  and  Mining 967 

Orphans    968 

Railroads 969 

INDEX. 


THE 

CIVIL  CODE 

OF  THE 

STATE  OF  CALirOKNIA. 

IN  FOUR  DIVISIONS. 

Title  of  the  Act.     §  1. 
^     Preliminary   Provisions.     §§  2-21. 
Division  First.        Persons.     §§  25-653zb. 
Second.     Property.     §§  654-1426s. 
Third.       Obligations.     §§  1427-3268. 
Fourth.     General  Provisions.     §§  3274-3543. 

Civ.  Code — 1  (1) 


THE 

CIVIL  CODE 

OF  THE 

STATE  OF  CALIFORNIA. 

AN  ACT 
TO  ESTABLISH  A  CIVIL  CODE. 

[Approved  March  21,  1872.] 

The  People  of  the  State  of  California,  represented  in  Senate  and 
Assembly,  do  enact  as  follows: 

TITLE  OF  THE  ACT. 
§  1.     Title  and  divisions  of  this  act. 

§  1.  Title  and  divisions  of  this  act.  This  act  shall  be 
known  as  The  Civil  Code  of  the  State  of  California,  and  is  in 
four  divisions,  as  follows: 

I.     The  first  relating  to  persons. 
II.     The  second  to  property. 

III.  The  third  to  obligations. 

IV.  The  fourth  contains  general  provisions  relating  to  the 

three  preceding  divisions. 
This  act,  how  cited;  See  post,  §  21. 
Legislation  §  1.     Enacted  March  21,  1872. 

THE  CIVIL  CODE  OF  THE  STATE  OF  CALIFORNIA. 

PRELIMINAEY  PROVISIONS. 

§    2.  When  this  code  takes  effect. 

§    3.  Not  retroactive. 

§    4.  Rules  of  construction. 

§    5.  Provisions   similar   to   existing   laws,   how   construed. 

§    6.  Actions,  etc.,  not  affected. 

§    7.  Holidays.     Saturday  half -holiday.     Public  schools. 

§    8.  Same.     [Repealed.] 

§    9.  Business  days. 

§  10.  Computation  of  time. 

§  11.  Certain  acts  not  to  be  done  on  holidays. 

§  12.  Joint  authority  construed. 

§  13.  Words  and  phrases,  how  construed. 

§  14.  Words.     Definition.     Signification  of  words. 

§  15.  Good  faith,  what  constitutes.     [Repealed.] 

§  16.  Degrees  of  care  and  diligence.     [Repealed.] 

(3) 


§  4  CIVIL    CODE.  4 

§  17.  Pojjroos  of  nogligcnce.     [Repealed.] 

§  IS.  Notii'e,  iu'tiial  ami  constructive. 

§  19.  (.'oust ructive  notice,  when  deemed. 

§  20.  Effect  of  repeal. 

§  21.  This  aet,  how  cited. 

§  2.  When  this  code  takes  effect.  This  code  takes  effect 
at  twi'lvi'  o'clock  noon,  on  the  lirst  chiy  ol"  January,  eighteen 
liundred  and  seventy-tliree. 

Effect  of  codes.     Generally:  Soo  Pol.  Code,  §§  4478  et  seq. 

Similar  provision  in  other  codes:  See  Code  Ci^:  Proc,  §  2;  Pen.  Code, 
§  2;  Pol.  Codo,  §  2. 

Publication  of  the  codes:  See  Pol.  Code,  §  4494. 

Legislation  §  2.  Euaclo.l  ^raroh  21,  1872;  based  on  ImcUI's  Draft, 
N.  Y.  Civ.  Code,  §  2034. 

§3.  Not  retroactive.  No  part  of  it  is  retroactive,  unless 
expressly  so  declared. 

Legislation  §  3.     Enacted  March  21,  1872. 

§  4.  Rules  of  construction.  The  rule  of  the  common  law^, 
that  statutes  in  derouation  thereof  are  to  be  strictly  construed, 
has  no  application  to  this  code.  The  code  estal)lishes  the  law 
of  this  state  respecting  the  subjects  to  which  it  relates,  and  its 
provisions  are  to  be  liberally  construed  with  a  view  to  effect 
its  objects  and  to  promote  justice. 

Effect  of  codes.     Generally:  See  Pol.  Code,  §§  4478  et  seq. 
Legislation  §  4.     1.  Enacted  March  21,  1872;  based  on   Field's  Draft. 
N.  Y.  Civ.  Code,  §2032. 

2.  Amendment  by  Stats.  1901,  p.  332,  and  held  unconstitutional,  in 
Lewis  V.  Dunne,  134  Cal.  291;  Mr.  .Justice  McFarland  saying,  "The 
said  act  ...  is  unconstitutional,  and  void  for  all  purposes,  and  is  in- 
operative to  change  or  in  any  way  affect  the  law  of  the  state  as  it 
stood  immediately  before  the  approval'  of  said  act.  .  .  .  The  act  covers 
one  hundred  and  fifty  pages  of  the  published  statutes  of  1901;  it 
amends  over  four  hundred  sections;  it  repeals  nearly  one  hundred  sec- 
tions; it  changes  the  numbers  of  other  sections;  it  adds  a  great  many 
new  sections;  and  it  contains  this  clause,  'Certain  title  and  chapter 
headings  .  .  .  are  hereby  inserted,  changed,  and  amended,'  and  then 
follow  several  pages  of  insertions,  changes,  and  amendments  of  such 
headings.  .  .  .  We  are  forced  to  the  conclusion  that  this  act  is  a  re- 
vision, and  void  for  want  of  re-enactment  and  publication  at  large 
of  the  revised  law."  Thus  the  attempted  repeals  or  attempted  amend- 
ments of  the  Civil  Code  as  embodied  in  the  act  of  the  legisla- 
turef  of  1901  were  declared  unconstitutional  and  void.  This  act  was 
the  result  of  an  act  approved  March  2.5,  189.5  (Stats.  189.5,  p.  345), 
whereby  the  legislature  created  and  established  "a  commission  for 
revising,  S3'stematizing,  and  reforming  the  laws  of  this  state,"  and 
provided  that  "said  commission,  to  be  known  as  'The  Commissioners 
for  the  Revision  and  Reform  of  the  Law,'"  should  be  appointed  by  the 
governor.  This  commission  was  duly  appointed,  and  thereafter  filed 
with  the  secretary  of  state  a  report  reicommending,  among  other  things, 
a  revision  of  the  Civil  Code,  and  the  legislature  (Stats.  1901,  p.  117) 
embodied  their  recommendations  in  the  act  declared  "unconstitutional, 
and  void  for  all  purposes." 


5  PRELIMINARY   PROVISIONS.  §  7 

§5.    Provisions   similar  to   existing  laws,   how  construed. 

The  provisions  of  this  code,  so  far  as  they  are  substantially  the 
same  as  existing  statutes  or  the  common  law,  must  be  con- 
strued as  continuations  thereof,  and  not  as  new  enactments. 
Legislation  §  5.     1.  Enacted   March   21,   1872;   based  on  Mass.   Rev. 
Laws  1858,  c.  clxxxii,  §  9;  the  code  commissioners  saying  of  this  section, 
that  it  "is  of  doubtful  propriety,  though  drawn  from  high  authority." 
2.  Amendment   by   Stats.   1901,   p.   332;   unconstitutional.     See  note, 
§  4,  ante. 

§  6.  Actions,  etc,  not  affected.  No  action  or  proceeding 
commenced  before  this  code  takes  effect,  and  no  right  accrued, 
is  affected  by  its  provisions. 

Similar  provisions:  See  Code  Civ.  Proc,  §  8;  Pol.  Code,  §  8. 

Amendments  to  the  Civil  Code.  The  amendatory  act  of  March  30, 
1874  (Code  Amdts.  1873-74,  pp.  181-269),  from  which  most  of  the 
amendments  and  new  sections  of  the  Civil  Code  are  taken,  contained 
the  three  following  sections  (sees.  286,  287,  288): 

"Sec.  286.  Eepeals,  limitations,  etc.  All  provisions  of  law  incon- 
sistent with  the  provisions  of  this  act  are  hereby  repealed,  but  no 
rights  acquired  or  proceedings  taken  under  the  provisions  repealed  shall 
be  impaired  or  in  any  manner  affected  by  this  repeal,  and  whenever  a 
limitation  or  period  of  time  is  prescribed  by  such  repealed  provisions 
for  acquiring  a  right  or  barring  a  remedy,  or  for  any  other  purpose,  has 
begun  to  run  before  this  act  takes  effect,  and  the  same  or  any  other 
limitation  is  prescribed  by  this  act,  the  time  of  limitation  which  shall 
have  run  when  this  act  takes  effect  shall  be  deemed  part  of  the  time 
prescribed  by  this  act." 

"Sec.  287.  Effect  of  amendatory  act  of  1873-74.  With  relation  to  the 
laws  passed  at  the  present  session  of  the  legislature,  this  act  must  be 
construed  as  though  it  had  been  passed  on  the  first  day  of  the  present 
session.  If  the  provisions  of  any  law  passed  at  the  present  session  of 
the  legislature  contravenes  or  is  inconsistent  with  the  provisions  of  this 
act,  the  provisions  of  such  law  must  prevail." 

"Sec.  288.  Time  of  taking  effect.  This  act  shall  take  effect  on  the 
first  day  of  July,  eighteen  hundred  and  seventy-four." 

Legislation  §  6.     Enacted  March  21,  1872. 

§  7.  Holidays.  Saturday  half -holiday.  Public  schools.  Holi- 
days within  the  meaning  of  this  code,  are  every  Sunday,  the 
first  day  of  January,  the  twelfth  day  of  February  to  be  known 
as  Lincoln  day,  twenty-second  day  of  February,  thirtieth 
day  of  May,  fourth  day  of  July,  ninth  day  of  September,  first 
Monday  in  September,  twelfth  day  of  October,  to  be  known 
as  "Columbus  day,"  tAventy-fifth  day  of  December,  every  day 
on  which  an  election  is  held  through  the  state,  and  every  day 
appointed  by  the  President  of  the  United  States  or  by  the 
governor  of  this  state  for  a  public  fast,  thanksgiving  or  holi- 
day. 

If  the  first  day  of  January,  twelfth  day  of  February,  twenty- 
second  day  of  February,  the  thirtieth  day  of  May,  the  fourth 
day  of  July,  the  ninth  day  of  September,  the  twelfth  day  of 


i;   /  CIVIL    CODE.  b 

Octobof   ov   tlu>   Iwi'iity-lil'tli   day   of  December  falls  upon  a 
Siimlay,  tlio  Motulay  ioilowiii^:  is  a  holiday. 

Every  Saturday  from  twelve  o'eloek  uoou  till  twelve  o'clock 
midnight  is  a  holiday  as  regai'ds  the  trausaetiou  of  business 
ill  the  i)ul)lio  ofdees  of  this  state,  and  also  in  political  divisions 
tiieret)l"  where  laws,  ordinanees  or  charters  provide  that  public 
ollrtces  shall  be  closed  on  holidays;  this  shall  not  be  construed 
to  prevent  or  invalidate  the  issuance,  filing,  service,  execu- 
tion or  recording  of  any  legal  process  or  written  instrument 
whatever  on  such  Saturday  afternoons;  and  provided  further, 
that  the  public  schools  of  this  state  shall  close  on  Saturday, 
Sunday,  the  first  day  of  January,  the  thirtieth  day  of  May, 
the  fourth  day  of  July,  the  twenty-fifth  day  of  December  and 
on  every  day  appointed  by  the  President  of  the  United  States 
or  the  governor  of  this  state  for  a  public  fast,  thanksgiving  or 
holiday.  Said  public  schools  shall  continue  in  session  on  all 
other  legal  holidays  and  shall  hold  proper  exercises  com- 
memorating the  day.  Boards  of  school  trustees  and  city 
hoards  of  education  shall  have  power  to  declare  a  holiday  in 
the  public  schools  under  their  jurisdiction  when  good  reason 
exists  therefor.  [Amendment  approved  1911;  Stats.  1911, 
p.   520.] 

Legislation  §  7.  1.  Enapted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §2017;  Stats.  1851,  p.  523;  Stats.  1861,  p.  310),  and 
then  roail:  "Iloiidays,  within  the  meaning  of  this  code,  are:  every 
Sunday,  the  first  day  of  January,  the  twenty-second  day  of  February, 
the  fourth  day  of  -Tuly,  the  twenty-fifth  day  of  December,  every  day 
on  which  an  election  is  held  throughout  the  state,  and  every  day 
appointed  by  the  President  of  the  United  States  or  by  the  governor 
of  this  state  for  a  public  fast,  thanksgiving,  or  holiday." 

2.  Amended  by  Code  Amdts.  1880,  p.  9,  adding  (1)  "the  thirtieth 
(30th)  day  of  May,"  and  (2)  at  the  end  of  the  section,  "If  the  first 
day  of  January,  the  twenty-second  day  of  February,  the  thirtieth  day 
of  May,  the  fourth  day  of  July,  or  the  twenty-fifth  day  of  December, 
fall  upon  a  Sunday,  the  Monday  following  is  a  holiday." 

3.  Amended  by  Stats.  1889,  p.  47,  adding  "the  ninth  day  of  Sep- 
tember" in  both  places. 

4.  Amended  by  Stats.  1893,  p.  186,  adding  "the  first  Monday  of  Octo- 
ber." 

5.  Amended  by  Stats.  1897,  p.  14,  changing  "the  first  Monday  of 
October"  to  "the  first  Monday  of  September." 

6.  Amended  by  Stats.  1907,  p.  565,  adding  "Every  Saturday  from 
twelve  o'clock  noon  until  twelve  o'clock  midnight  is  a  holiday  as  re- 
gards the  transaction  of  business  in  the  public  oflHces  of  this  state, 
and  also  in  political  divisions  thereof  where  laws,  ordinances,  or  char- 
ters provide  that  [lublic  offices  may  be  closed  on  holidays;  provided, 
this  shall  not  be  construed  to  prevent  or  invalidate  the  issuance,  filing, 
service,  execution,  or  recording  of  any  legal  process  or  written  instru- 
ment whatever  on  such  Saturday  afternoons';  the  code  commissioner 
saying,  "Merely  adds  the  Saturday  half-holiday  to  the  section  so  as 
to  make  it  conform  to  §  10  of  the  Code  of  Civil  Procedure,  as  amended 
in  1907." 


7  PRELIMINARY   PROVISIONS.  §  10 

7.  Amended  by  Stats.  Extra  Sess.  1907,  p.  5,  (1)  adding  (a)  "and 
such  days  as  the  governor  may  declare  as  special  holidays"  before  "If 
the  first  day  of  January,"  and  (b)  "Provided  further,  that  the  gov- 
ernor of  the  state  may  declare  special  holidays  and  he  may  in  one 
proclamation  designate  one  or  any  number  of  consecutive  days  as 
special  holidays  and  during  any  such  special  holidays  no  public  duty 
shall  be  suspended  or  prohibited  except  such  as  affect  the  adminis- 
tration of  justice  in  the  courts  of  this  state  as  prescribed  by  section 
135  of  the  Code  of  Civil  Procedure." 

8.  Amended  by  Stats.  1909,  p.  23,  to  read:  "Holidays,  within  the 
meaning  of  this  code,  are  every  Sunday,  the  first  day  of  January,  the 
twenty-second  day  of  February,  the  thirtieth  day  of  May,  the  fourth 
day  of  July,  the  ninth  day  of  September,  the  first  Monday  in  Sep- 
tember, the  twelfth  day  of  October  to  be  known  as  'Discovery  Day,' 

■  the  twenty-fifth  day  of  December,  every  day  on  which  an  election 
is  held  throughout  the  state,  and  every  day  appointed  by  the  Presi- 
dent of  the  United  States  or  by  the  governor  of  this  state  for  a  public 
fast,  thanksgiving  or  holiday.  If  the  first  day  of  January,  the  twenty- 
second  day  of  February,  the  thirtieth  day  of  May,  the  fourth  day  of 
July,  the  ninth  day  of  September,  the  twelfth  day  of  October  or  the 
twenty-fifth  day  of  December  fall  upon  a  Sunday,  the  Monday  follow- 
ing is  a  holiday.  Every  Saturday  from  twelve  o'clock  noon  until 
twelve  o'clock  midnight  is  a  holiday  as  regards  the  transaction  of 
business  in  the  public  ofiiees  of  this  state,  and  also  in  political  divisions 
thereof  where  laws,  ordinances  or  charters  provide  that  public  offices 
may  be  closed  on  holidays;  provided,  this  shall  not  be  construed  to 
prevent  or  invalidate  the  issuance,  filing,  service,  execution  or  record- 
ing of  any  legal  process  or  written  instrument  whatever  on  such  Sat- 
urday afternoons." 

9.  Amended  by  Stats.  1911,  p.  520. 

§8.     Same.     [Repealed  1905;  Stats.  1905,  p.  11.] 

Legislation  §  8.     1.  Enacted  March  21,  1872. 

2.  Eepeal  by  Stats.  1901,  p.  332;  unconstitutional.  See  note,  § -i, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  11. 

§9.     Business  days.     All  other  days  than  those  mentioned 
in  section  seven  are  to  be  deemed  business  days  for  all  pur- 
poses.    [Amendment  approved  1905;  Stats.    1905,  p.  11.] 
Holidays,  etc.:  See  post,  §  11. 

Iiegislation  §  9.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  2019. 

2.  Amendment  by  Stats.  1901,  p.  332;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  11,  changing  "the  last  two  sections" 
to  "section  seven." 

§10.  Computation  of  time.  The  time  in  which  any  act 
provided  by  law  is  to  be  done  is  computed  by  excluding  the 
first  day  and  including  the  last,  unless  the  last  day  is  a  holiday, 
and  then  it  is  also  excluded. 

Time,  how  computed.     Year,  week,  and  day,  defi.ned:  See  Pol.  Code, 
§§3255  et  seq. 
Legislation  §  10.     Enacted  March  21,  1872. 


§  14  civil,  cDnK. 


8 


§  11.  Certiiin  acts  not  to  be  done  on  holidays.  Whenever 
any  aet  of  a  seeular  niitiire.  other  than  a  work  ol:  neeessity 
or  nierey,  is  appointed  hy  law  or  eonlraet  to  be  performed 
upon  a  partieuhir  (.lay,  whieh  day  falls  upon  a  holiday,  it  may 
be  performed  upon  the  next  business  day,  with  the  same  effect 
as  if  it  had  been  performed  upon  the  day  appointed. 

Legislation  §  11.     Enat-totl  I^Iaroh  21,   1872;   based   on   Field's   Drari, 

X.  Y.  Civ.  Co.lc,  §  201^0. 

§  12.  Joint  authority  construed.  Words  j^iving  a  joijit  au- 
thority to  three  or  more  public  oflicers  or  other  persons  are  con- 
strued as  giving  such  authority  to  a  majority  of  them,  unless 
it  is  otherwise  expressed  in  the  act  giving  the  authority. 

Similar  provisions;  Code  Civ.  Proc,  §  15;  Pol.  Code,  §  15. 

Legislation  §  12.      Kiiacted  Marcli  '21,  1872. 

§  13.  Words  and  phrases,  how  construed.  Words  and 
phrases  are  construed  according  to  tin;  context  and  the  ap- 
proved usage  of  the  language;  but  technical  woi-ds  and  phrases, 
and  such  others  as  may  have  ac(iuired  a  })eculiar  and  appro- 
priate meaning  in  law,  or  are  defined  in  tlui  succeeding  section, 
are  to  be  construed  according  to  such  peculiar  and  appro])riate 
meaning  or  definition. 

Similar  provisions:  Scm'  Code  Civ.  Prop.,  §  IG;  Pol.  Code,  §  10. 
Technical  words,  how  construed:   See  i)ost,  §S  11527,  1645. 
Words  and  phrases.     How  construed.     The  above  is  the  geucial  rule 
with  re^^ard  to  the  coiistnietioii  of  words,  whether  in  contracts,  statutes, 
or  constitutions.     The  meaning  to  be  given  to  words  in  contracts  is  pro- 
vided for  post,  §§  1644,  1645,  and  in  Code  Civ.  Proc,  §  1861. 

Legislation  §  13.     Enacted  March  21,  1872;   based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1999,  enlarged  from  the  Massachusetts  statute. 

§  14.     Words.     Definition.     Signification  of  words.     Words 

used  ill  this  code  in  the  [)i'e,sent  tense  include  the  future  as 
well  as  the  present;  words  used  in  the  masculine  gender  in- 
clude the  feminine  and  neuter;  the  singular  number  includes 
the  plural,  and  the  plural  the  singular;  the  w^ord  person  in- 
cludes a  corporation  as  well  as  a  natural  person;  county  in- 
cludes city  and  county;  writing  includes  printing  and  type- 
writing: oath  includes  affirmation  or  declaration;  and  every 
mode  of  oral  statement,  under  oath  or  affirmation,  is  endn-aced 
by  the  term  "testify,"  and  eveiy  written  one  in  the  term 
"depose"';  signature  or  subscription  includes  mark,  Avhen  the 
I)eri5on  cannot  write,  his  name  being  written  near  it,  by  a 
person  who  writes  his  own  name  as  a  witness;  provided,  that 
when  a  signature  is  by  mark  it  must  in  order  that  the  same 
may  be  acknowledged  or  may  serve  as  the  signature  to  any 
sworii  .statement  be  witnes.sed  by  two  persons  who  must  sub- 
Bciibe  their  own   names  as  witnesses  thereto.     The   following 


9  PRELIMINARY    PROVISIONS.  §  14 

words  have  in  this  code  the  signification  attached  to  them  in 
this  section,  unless  otherwise  apparent  from  the  context: 

1.  The  word  "property"  includes  property  real  and  personal; 

2.  The  words  "real  property"  are  coextensive  with  lands, 
tenements,  and  hereditaments; 

3.  The  words  "personal  property"  include  money,  goods, 
chattels,  things  in  action,  and  evidences  of  debt; 

4.  The  word  "month"  means  a  calendar  month,  unless  other- 
wise expressed ; 

5.  The  word  "will"  includes  codicil ; 

6.  The  word  "section"  whenever  hereinafter  employed  re- 
fers to  a  section  of  this  code,  unless  some  other  code  or  statute 
is  expressly  mentioned.  [Amendment  approved  1903;  Stats. 
1903,  p.  407.] 

Similar  provisions:  Pol.  Code,  §  17;  Code  Civ.  Proc,  §  17;  Pen.  Code, 
§7. 

Words  used  in  boundaries,  defined:  Pol.  Code,  §§  3903-3907. 

Legislation!  14.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §§  2000-2005,  2013-2016,  2023-2030),  and  then  read: 
"Whenever  the  terms  mentioned  in  this  section  are  employed  in  this 
code,  they  are  employed  in  the  senses  hereafter  afSxed  to  them,  except 
where  a  different  sense  plainly  appears:  1.  The  term  'signature'  in- 
cludes any  name,  mark,  or  sign  written  with  intent  to  authenticate 
any  instrument  or  writing.  2.  The  words  'writing'  and  'written'  in- 
clude 'printing'  and  'printed,'  except  in  the  case  of  s-ignatures,  and 
where  the  words  are  used  by  way  of  contrast  to  printing.  Writing 
may  be  made  in  any  manner,  except  that  when  a  person  entitled  to 
require  the  execution  of  a  writing  demands  that  it  be  made  with  ink 
it  must  be  so  made.  3.  The  word  'paper'  means  any  flexible  material 
upon  which  it  is  usual  to  write.  4.  The  term  'writing'  includes  both 
printing  and  writing.  5.  The  term  'land'  and  the  phrases  'real  estate' 
and  'real  property'  include  lands,  tenements,  and  hereditaments,  and 
all  rights  thereto  and  interests  therein.  6.  The  words  'personal  prop- 
erty' include  money,  goods,  chattels,  evidence  of  debt,  and  'things  in 
action.'     7.  The   word   'property'   includes   personal   and   real  property. 

8.  The  words  'compound  interest'  mean  interest  added  to  the  prin- 
cipal as  the  former  becomes  due,  and  thereafter  made  to  bear  interest. 

9.  The  word  'year'  means  a  calendar  year,  and  'month'  a  calendar 
month,  unless  otherwise  expressed.  Fractions  of  a  year  are  to  be  com- 
puted by  the  number  of  months — thus,  half  a  year  is  six  months. 
Fractions  of  a  day  are  to  be  disregarded  in  computations  which  include 
more  than  one  day,  and  involve  no  questions  of  priority.  10.  The 
abbreviation  'A.  D.'  is  equivalent  to  the  expression  'year  of  our  Lord.' 
11.  The  word  'oath'  includes  'aflSrmation'  in  all  cases  where  an  affirma- 
tion may  be  substituted  for  an  oath;  and  in  like  cases  the  word  'swear' 
includes  the  word  'af3Srm.'  Every  mode  of  oral  statement  under  oath 
or  affirmation  is  embraced  by  the  term  'testify,'  and  every  written  one 
in  the  term  'depose.'  12.  "The  word  'state,'  when  applied  to  the  dif- 
ferent parts  of  the  United  States,  includes  the  District  of  Columbia 
and  the  territories,  and  the  words  'United  States'  include  the  District 
and  territories.  13.  Where  the  term  'person'  is  used  to  designate  the 
party  whose  property  may  be  the  subject  of  any  offense,  action,  or  pro- 
ceeding, it  includes  this  state,  any  other  state,  government,  or  country 


§  l{\  CIVIL    CDDK.  10 

whi.h  may  lawfully  own  any  pioiiorty  witliiii  this  state,  and  all  public 
and  privato  coriiorations.  or  joint   associations,  as  well  as  individuals. 
14.  The  word  'pi'ison,'  oxcopt  wlion  used  by  way  of  t-ontrast,  includes 
not    only    luitnan    boinjjs,    but    bodies    politic    or    corporate.      If).  The 
phrase  'third  persons'  includes  all  who  are  not  parties  to  the  obligation 
or    transaction    concerninfj;   which   the  jihrase   is   used.     IG.  The   phrase 
'persons  of  un.sound  mind'  includes  idiots,  lunatics,  imbeciles,  and  habit- 
ual drunkards.     17.  The  term  'children'  includes  children  by  birth  and 
bv    adoption.     IS.   Words    used    in    the    singular    number    include    the 
plural,  and  the  plural  the  singular.     19.  The  word  'several,'  as  used  in 
relation   to  number,  means  two  or  more.     20.   Words  used  in  the  mas- 
culine gender  comiirehend  as  well  the  feminine  and  neuter.     21.  Words 
used  in  the  present  tense  include  the  future,  but  e.xcludo  the  past.     22. 
The  word  'will'  includes  'codicils.'     2^^.  The  word  'writ'  signifies  an  order 
or  precept  in  writing  issued  in  the  name  of  the  people  or  of  a  court  or 
judicial   otticer.     'Process'  is  a  writ  or  summons  issued  in   the  course 
of  judicial  ])roceediugs.     24.  Except  as  used  in  Part  II  of  Division  IV 
of  this  code,  the  word  'debtor'  includes  within  its  meaning  every  one 
who  owes  to  another  the  performance  of  an  obligation,  and  the  word 
'creditor'  every  one  to  whom  the  performance  is  due.     25.  The  words 
•usual'  and  'customary'  mean  according  to  usage.     26.  The  word  'usage' 
means  a  reasonable  and  lawful  public  custom,  concerning  transactions 
of  the  same  nature  as  those  which  are  to  be  affected  thereby  existing 
at  the  place  where  the  obligation  is  to  be  performed,  and  cither  known 
to  the  parties  or  so  well   established,  general,  and  uniform,  that  they 
must  be  presumed  to  have  acted  with  reference  thereto.     27.  The  word 
'verdict'   includes  not   only  the  verdict  of  a  jury,  but  also  the  finding 
upon  the  facts  by  a  judge  or  of  a  referee  appointed  to  try  the  case. 
28.  The   word   'value'   or  the   phrase   'valuable   consideration'   means  a 
thing  of  value  parted  with  or  a  new  obligation  assumed  at  the  time 
of   obtaining   a   thing   which   is   a   substantial   compensation   for   that 
which  is  obtained  thereby.     29.  When  the  seal  of  a  court,  public  officer, 
or  officer  is  required  by  law  to  be  affixed  to  any  paper,  the  word  'seal' 
includes  an  impression  of  such  seal  upon  the  paper  alone,  as  well  as 
upon  wax  or  a  wafer  affixed  thereto." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  181,  to  read  as  at  present, 
except  for  the  amendments  of  1903. 

3.  Amendment  by  Stats.  1901,  p.  332;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1903,  p.  407,  (1)  in  introductory  paragraph,  (a) 
adding  "countv  includes  city  and  county,"  and  "and  typewriting"  after 
"printing,"  (b)  omitting  "and  written"  before  "by  a  person,"  (c)  add- 
ing the  i)roviso,  an<l  (d)  omitting  "also"  after  "words"  in  final  sen- 
tence; (2)  in  subd.  4,  omitting  "and"  from  end  of  subdivision;  (3) 
adding  subd.  6. 

§  15.     Good  faith,  what  constitutes.     [Repealed  1874 ;  Code 
Amdts.   LS7::;^74.  p.  182.] 

Legislation  §  15.     1.  p:nacted  March  21,  1872. 
2.    Hrpealed  by  Code  Amdts.  1873-74,  p.  182. 

§  16.     Degrees  of  care  and  diligence.     [Repealed  1874;  Code 
Amdts.  187;i-74,  p.  182.] 

Legislation  §  16.     1.  Enacted  March  21,  1872. 
2.   Kep.aled  by  Code  Amdts.  1873-74,  p.  182. 


11  PRELIMINARY    PROVISIONS.  §  20 

§  17.     Degrees  of  negligence.     [Repealed  1874 ;  Code  Amdts. 
1873-74,  p.  182.] 

Legislation  §  17.     1.  Enacted  March  2],  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  182. 

§  18.     Notice,  actual  and  constructive.     Notice  is : 

1.  Actual — which  consists  in  express  information  of  a  fact; 
or, 

2.  Constructive — vv^hich  is  imputed  l^y  law. 

Legislation  §  18.     Enacted  March  21,  1872;   based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §§  2008,  2010. 

§  19.     Constructive    notice,    when    deemed.     Every    person 
who  has  actual  notice   of   circumstances   sufficient   to   put   a 
prudent  man  upon  inquiry  as  to  a  particular  fact,  has  con- 
structive notice  of  the  fact  itself  in  all  cases  in  which,  by 
prosecuting   such  inquiry,   he  might  have  learned   such  fact. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  182.] 
Constructive  notice.     Recording  instruments:  See  post,  §  1213. 
Legislation  §  19.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  2011),  and  then  read:  "Every  person  who  has  actual 
notice  of  circumstances  sufficient  to  put  a  prudent  man  upon  inquiry 
as  to  a  particular  fact,  and  who  omits  to  make  such  inquiry  with  rea- 
sonable   diligence,   has    constructive    notice    of   the    fact    itself."     The 
code  commissioners  say:  "If  the  party  who  receives  information  of  cir- 
cumstances suggesting  an  inquiry  for  the  principal  fact,  makes  that 
inquiry  with  due  diligence,  the  result  must  be  either  that  he  will  ascer- 
tain the  fact,  or  that  he  will  be  prevented  from  doing  so  by  causes 
for  which  he  is  not  to  blame,  and  from  which  he  ought  not  to  suffer. 
If  he  ascertains  it,  he  then  has  actual  notice,  and  the  doctrine  of  con- 
structive notice  does  not  apply.     If,  notwithstanding  due  diligence,  he 
fails  to  ascertain  it,  notice  ought  not  to  be  imputed  to  him.     The  com- 
missioners, therefore,  as  respects  circumstances  putting  a  person  upon 
inquiry,  have  limited  the  doctrine  of  constructive  notice  to  cases  in 
which  there  is  a  failure  to  make  diligent  inquiry:  See  Foster  v.  Beals, 
21  N.  Y.  247;  Williamson  v.  Brown,  15  N.  Y.  354;  Fassett  v.  Smith, 
23  N.  Y.  252.     The  decision  in  Kellogg  v.  Smith,  26  N.  Y.  18,  is  put 
upon  the  ground  that  there  was  a  duty  of  inquiry,  both  for  the  bond 
and  the  mortgage;  but  the  inquiry  made  was  only  as  to  the  mortgage." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  182. 

§  20.  Effect  of  repeal.  No  statute,  law,  or  rule  is  continued 
in  force  because  it  is  consistent  with  the  provisions  of  this  code 
on  the  same  subject;  but  in  all  cases  provided  for  by  this 
code,  all  statutes,  laws,  and  rules  heretofore  in  force  in  this 
state,  whether  consistent  or  not  with  the  provisions  of  this 
code,  unless  expressly  continued  in  force  by  it,  are  repealed  or 
abrogated. 

This  repeal  or  abrogation  does  not  revive  any  former  law 
heretofore  repealed,  nor  does  it  affect  any  right  already  exist- 
ing or  accrued,  or  any  action  or  proceeding  already  taken, 
except  as  in  this  code  provided. 


§  21  CIVIL    CODE.  12 

Similar  provisions;  Pol.  Code,  §  18;  Code  Civ.  Proc,  §  IS. 
Statutes  coutiuued  in  force:  Pol.  Co.lo,  §  19;  Pen.  Code,  §  23. 
Vested  rights:  See  ante,  §  0. 
Iiegislation  §  20.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  333;  unconstitutional.     See  note,  §  4, 
ante. 

§  21.  This  act,  how  cited.  This  act,  whenever  cited, 
onumorated,  referred  to,  or  amended,  may  be  desiunated  sinl- 
ply  as  "The  Civil  Code,"  adding,  when  necessary,  the  number 
of  the  section. 

Title  of  this  act:  See  ante,  §  1. 
Legislation  §  21.     Enacted  March  21,  1872. 


DIVISION  IlKST. 

-Part  I.  Persons.     §§25-42, 

II.  Personal  Rights.     §§  43-54, 

III.  Personal   Eelations,     §§  55-276. 

IV.  Corporations.     §§  283-653zb, 

(13) 


15  PERSONS.  §  28 

PAET  I. 
PERSONS. 

§  25.  Minors,  who  are. 

§  26.  Periods  of  minority,  how  calculated. 

§  27.  Adults,  who  are. 

§  28.  Status  of  minors,  how  changed.      [Repealed.] 

§  29.  Unborn  child. 

§  30.  Persons   made   adults  by  other  states,  considered  as   such   in  this 

state,  when  domiciled  herein.     [Repealed.] 

§  31.  Minors  by  the  laws  of  other  state  or  country,  how  considered  in 

this  state.     [Repealed.] 

§  32.  Custody  of  minors. 

§  33.  Delegation  of  powers.     Minors. 

§  34.  Contracts  by  minors. 

§  35.  When  minor  may  disaflSrm. 

§  36.  Minor  cannot  disaffirm  contract  for  necessaries. 

§  37.  Minor  cannot  disaffirm  certain  obligations. 

§  38.  Contracts  by  persons  without  understanding. 

§  39.  Contracts  by  persons  of  unsound  mind. 

§  40.  Powers  of  persons  whose  incapacity  has  been  adjudged. 

§  41.  Minors  liable  for  wrongs,  but  not  liable  for  exemplary  damages. 

§  42.  Minors  may  enforce  their  rights. 

§  25.     Minors,  who  are.     Minors  are : 

1.  Males  under  twenty-one  years  of  age; 

2.  Females  under  eighteen  years  of  age. 

Legislation  §  25.  Enacted  March  21,  1872;  based  on  Stats.  1854, 
p.  155;  Field's  Draft,  N.  Y.  Civ.  Code,'§  10.  See  also  Cooley  Bl.  Comm., 
I,  463. 

§  26.  Periods  of  minority,  how  calculated.  The  periods 
specified  in  the  preceding  section  must  be  calculated  from 
the  first  minute  of  the  day  on  which  persons  are  born  to  the 
same  minute  of  the  corresponding  day  completing  the  period  of 
minority. 

Legislation  §  26.  1.  Enacted  March  21,  1872;  the  code  commission- 
ers saying,  "The  first  second  of  the  preceding  day  is  the  common-law 
rule:  Shars.  Bl.  Comm.,  I,  463,  and  note  11." 

2,  Amendment  by  Stats.  1901,  p.  333;  unconstitutional.  See  note,  §  4, 
ante. 

§  27.     Adults,  who  are.     All  other  persons  are  adults. 

Legislation  §  27.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  11. 

§28.  Status  of  minors,  how  changed.  [Repealed  1874; 
Code  Amdts.  1873-74,  p.  182.] 

Legislation  §  28.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  182. 


5;  :U  CIVIL   CODE.  16 

§  29.  Unborn  child.  A  i-liild  conceived,  but  not  yet  born, 
is  to  bi-  ileomoil  an  existing  person,  so  far  as  may  be  necessary 
lor  its  interests  in  the  event  oi'  its  snbse(iiient  birth. 

Posthumous  children.     Rights  of:  ycc  post,  §§  U98,  739,  WM),  1403. 
Legislation  §  29.     Knacli'd   Atarch   21,   1872;   basod   on   Fiol.l's   Draft, 
N.  V.  (.  L\ .  Cudi',  §  12;  I'ooley  Bl.  C'onuu.,  1,  12!>. 

§  30.  Persons  made  adults  by  other  states,  considered  as 
such  in  this  state,  when  domiciled  herein,  [ixepealed  1874; 
Code  Anults.  187o-74,  p.  182. J 

Legislation  §  30.     1.  Enacted  March  21,  1872. 

2.   1^'iH'alod  by  Cude  Anults.  1873-74,  p.   182. 

§  31.  Minors  by  the  laws  of  other  state  or  country,  how  con- 
sidered in  this  state.      [Kcpealed  1874;  Code  Amdts.  1873-74, 

p.  182.  j 

Legislation  §  31.     1.  Enacted  March  21,  1872. 
2.  Kcpealed  by  Code  Amdts>  1873-74,  p.  182. 

§  32.  Custody  of  minors.  The  custodj'  of  minors  and  per- 
sons of  unsound  mind  is  regulated  by  part  three  of  this 
division. 

Legislation  §  32.     Enacted  March  21,  1872;   based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  14. 

§  33.  Delegation  of  powers.  Minors.  A  minor  cannot  give 
a  delegation  of  power,  nor,  under  the  age  of  eighteen,  make 
a  contract  relating  to  real  property,  or  any  interest  therein, 
or  relating  to  any  personal,  property  not  in  his  immediate  pos- 
session or  control.  [Amendment  approved  1874 ;  Code  Amdts. 
1873-74,  p.  182.] 

Legislation  §  33.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  15),  and  then  read:  "A  minor  cannot  give  a  delega- 
tion of  power." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  182. 

§  34,  Contracts  by  minors.  A  minor  may  make  any  other 
contract  tlian  as  above  specified,  in  the  same  manner  as  an 
adult,  subject  only  to  his  power  of  disaffirmance  under  the 
provisions  of  this  title,  and  subject  to  the  provisions  of  the 
titles  on  marriage,  and  on  master  and  servant.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  183.] 

Marriage:  See  post,  §§  56  et  seq. 

Master  and  servant:  See  post,  §§  264  et  seq. 

Legislation  §  34.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §16;  Magee  v.  Walsh,  18  Cal.  155),  and  then  read: 
"A  minor  may  make  a  conveyance  or  other  contract  in  the  same  man- 
ner as  any  other  pcr.son,  subject  only  to  his  power  of  disaffirmance 
under  the  provisions  of  this  title,  and  to  the  provisions  of  the  title  on 
marriage." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  183. 

3.  Amendment  by  Stats.  1901,  p.  333;  unconstitutional.  See  note, 
§  4,  ante. 


17  PERSONS. 


38 


§35.  When  minor  may  disaffirm.  In  all  cases  other  than 
those  specified  in  sections  thirty-six  and  thirty-seven,  the  con- 
tract of  a  minor,  if  made  whilst  he  is  under  the  age  of  eighteen, 
may  be>~disaffirmed  by  the  minor  himself,  either  before  his 
majority  or  within  a  reasonable  time  afterwards;  or,  in  case 
of  his  death  within  that  period,  by  his  heirs  or  personal  repre- 
sentatives; and  if  the  contract  be  made  by  the  minor  whilst 
he  is  over  the  age  of  eighteen,  it  may  be  disaffirmed  in  like 
manner  upon  restoring  the  consideration  to  the  party  from* 
whom  it  was  received,  or  paying  its  equivalent.  [Amendment 
approved  1874;  Code  Amdts.  1873^74,  p.  183.] 

Legislation  §  35.  1.  Enacted  March  21,  1872  (based  on  Field's -yraft, 
N.  Y.  Civ.  Code,  §  17;  Hastings  v.  Dollarhide,  24  Cal.  195),  and  then 
read:  "In  all  eases  other  than  those  specified  by  sections  36  and  37, 
the  contract  of  a  minor  may,  upon  restoring  the  consideration  to  the 
party  from  whom  it  was  received,  be  disatSrmed  by  the  minor  himself, 
either  before  his  majority  or  within  a  reasonable  time  afterwards,  or, 
in  case  of  his  death  within  that  period,  by  his  heirs  or  personal  rep- 

TGSGntcltlVGS. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  183. 

§36.    Minor  cannot  disaffirm  contract  for  necessaries.    A 

minor  cannot  disaffirm  a  contract,  otherwise  valid,  to  pay  the 
reasonable  value  of  things  necessary  for  his  support,  or  that 
of  his  family,  entered  into  by  him  when  not  under  the  care 
of   a  parent   or   guardian   able   to   provide   for  him   or  them. 
[Amendment  approved  1874;  Code  Amdts.  18/3-74,  p.  183.] 
Legislation  §  36.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  IS),  and  then  read:  "A  minor,  or  a  person  of  unsound 
mind  of  whatever  degree,  cannot  disaflSmi  a  contract,  otherwise  valid, 
to  pay  the  reasonable  value   of  things   necessary  for  his  support,   or 
for  that  of  his  family,  entered  into  by  him  when  not  under  the  care 
of  a  parent  or  guardian  able  to  provide  for  him." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  183. 

§  37.    Minor  cannot  disaffirm  certain  obligations.    A  minor 
cannot  disaffirm  an  obligation,   otherwise  valid,  entered  into 
by  him  under  the  express  authority  or  direction  of  a  statute. 
Legislation  §  37.     Enacted  March  21,  1872;   based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  19. 

§  38.  Contracts  by  persons  without  understanding.  A  per- 
son entirely  without  understanding  has  no  power  to  make  a 
contract  of  any  kind,  but  he  is  liable  for  the  reasonable  value 
of  things  furnished  to  him  necessary  for  his  support  or  the 
support  of  his  family.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  183.] 

Contracts  of  insane  persons:  See  post,  §§  1556,  1557. 
Legislation  §  38.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §20),  and  then  read:   "A  person  entirely  without  uu- 
Civ.  Code — 2 


§  42  civiii  CODE.  18 

(iorstaudiug  has  uo   power   to  ooiitract,  except  in   tlio  case   mentioned 
iu  section  31),  unless  expressly  authorized  by  statute." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  183. 

§  39.  Contracts  by  persons  of  unsound  mind.  A  couvey- 
auce  or  otlier  coutrad  oL'  a  i)ersoii  ol"  unsound  mind,  but  not 
entirely  without  iinderstandinij:,  made  before  his  incapacity 
has  been  judieially  determined,  is  subject  to  rescission,  as  pro- 
vided in  the  chapter  on  rescission  oi"  this  code.  [Amendment 
•  approved  1874;  Code  Amdts.  lS73'-74,  p.  184.] 

Rescission  of  contracts:  See  post,  §§  1G88-1691,  3406-3408. 
Legislation  §  39.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  21),  and  then  read:  "A  person  of  unsound  mind,  but 
not  entirely  without  understanding,  may  make  a  conveyance  or  other 
contract  before  his  incapacity  has  been  judicially  determined,  subject 
to  rescission,  as  provided  in  the  chapter  on  rescission." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  184. 

§  40.  Powers  of  persons  whose  incapacity  has  been  ad- 
judged. After  liis  incai)acily  has  been  judicially  determined, 
a  person  of  unsound  mind  can  make  no  conveyance  or  other 
contract,  nor  delegate  any  power  or  waive  any  right,  until  his 
restoration  to  capacity.  But  a  certificate  from  the  medical 
superintendent  or  resident  physician  of  the  insane  asylum  to 
which  such  person  may  have  been  committed,  showing  that 
such  person  had  been  discharged  therefrom,  cured  and  restored 
to  reason,  shall  establish  the  presumption  of  legal  capacity  in 
such  person  from  the  time  of  such  discharge.  [Amendment 
approved  1878;  Code  Amdts.  1877-78,  p.  75.] 

Legislation  §  40.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  22),  and  then  read:  "After  his  incapacity  has  been 
judicially  determined,  a  person  of  unsound  mind  can  make  no  convey- 
ance or  other  contract,  nor  delegate  any  power,  nor  waive  any  right, 
until  his  restoration  to  capacity  is  judicially  determined.  But  if  actu- 
ally restored  to  capacity,  he  may  make  a  will,  though  his  restoration 
is  not  thus  determined." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  75. 

3.  Amendment  by  Stats.  1901,  p.  333;  unconstitutional.  See  note, 
§  4,  ante. 

§  41.  Minors  liable  for  wrongs,  but  not  liable  for  exemplary 
damages.  A  uiinoi-.  or  person  of  unsound  )iiiiid,  of  whatever 
degree,  is  civilly  liable  for  a  wrong  done  by  him,  but  is  not 
Liable  in  exemplary  damages  unless  at  the  time  of  the  act  he 
was  capable  of  knowing  that  it  was  wrongful. 

Legislation  §  41.     Enacted  March  21,  1872;  based  on  l<"ield's  Draft, 

N.  Y.  Civ.  Code,  §  23. 

§  42.  Minors  may  enforce  their  rights.  A  minor  may  en- 
force his  riglits  Ijy  '-ivil  action,  or  other  legal  proceedings,  in 
the  same  manner  as  a  person  of  full  age,  except  that  a  guard- 
ian must  conduct  the  same. 

Legislation  §  42.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  25. 


19  PERSONAL   RIGHTS.  §  46 

PART  II. 
PERSONAL  RIGHTS. 

§  43.  General  personal  rights. 

§  44.  Defamation,  what. 

§  45.  Libel,  what. 

§  46.  Slander,  what. 

§  47.  Privileged  publication  is  what. 

§  48.  Malice  not  inferred. 

§  49.  Personal  relations  forbid  abduction  and  seduction,  and  injury  to 

-  servant. 

§  50.  Eight  to  use  force. 

§  51.  Personal  rights,  all  persons  have  equal. 

§  52.  Violation  of  personal  rights.     Damages. 

§  53,  Admittance  to  places  of  amusement,  etc.,  on  presentation  of  ticket, 

or  price  of  ticket.     Exceptions. 

§  54.  Violation  of  right  of  admission  to  places  of  amusement.     Damages. 

§  43.  General  personal  rights.  Besides  the  personal  rights 
mentioned  or  recognized  in  the  Political  Code,  every  person 
has,  subject  to  the  qualifications  and  restrictions  provided  by 
law,  the  right  of  protection  from  bodily  restraint  or  harm, 
from  personal  insult,  from  defamation,  and  from  injury  to  his 
personal  relations. 

Political  rights  and  duties:  See  Pol.  Code,  §§  50-60. 
Legislation  §  43.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  27. 

§  44.  Defamation,  what.  Defamation  is  affected  [effected] 
by: 

1.  Libel; 

2.  Slander. 

Legislation  §  44,  Enacted  March  21,  1872;  based  on  Field's  Diaft, 
N.  Y.  Civ.  Code,  §  28. 

§  45.  Libel,  what.  Libel  is  a  false  and  unprivileged  publi- 
cation by  writing,  printing,  picture,  effigy,  or  other  fixed 
representation  to  the  eye,  which  exposes  any  person  to  hatred, 
contempt,  ridicule,  or  obloquy,  or  which  causes  him  to  be 
shunned  or  avoided,  or  which  has  a  tendency  to  injure  him 
in  his  occupation. 

Pleading  libel:  See  Code  Civ.  Proc,  §§  460,  461. 

Privileged  publication:  See  post,  §§  47,  48. 

Legislation  §  45.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  29. 

§46.  Slander,  what.  Slander  is  a  false  and  unprivileged 
publication  other  than  libel,  which: 

1.  Charges  any  person  with  crime,  or  with  having  been  in- 
dicted, convicted,  or  punished  for  crime; 


§  47  CIVIL   CODE.  20 

2.  linputfs  ill  liiiii  tile  piTsciit  cxislciico  of  an  iiifootious, 
coutaiiious.  or  loatlisoiiK^  diseasi'; 

."k  TtMuls  (liroi'tly  to  injure  liini  in  i-cspcct  to  liis  office,  pro- 
tVssion.  tradi'.  or  hiisinoss,  either  ])y  impiitiny:  to  liim  sc»ci'al 
(lisipialilieatioii  in  lliosc  vcspects  Avliich  the  offiee  or  otlier  occu- 
pation peculiarly  requires,  or  by  imputing:  something  with 
reference  to  his  office,  profession,  trade,  or  business  that  has 
a  natural  tendency  to  lessen  its  profits; 

4.  Imputes  to  him  impotence  or  a  Avant  of  chastity;  or, 

5.  Which,  by  natural  consequence,  causes  actual  damaj^e. 
Legislation  §  46,     Enacted  March   21,   1872;   based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  30. 

§  47.  Privileged  publication  is  what.  A  privileged  publica- 
tion is  one  made — 

1.  In  the  proper  discharge  of  an  official  duty. 

2.  In  any  legislative  or  judicial  proceeding,  or  in  any  other 
official  proceeding  authorized  by  law. 

3.  In  a  communication,  without  malice,  to  a  person  inter- 
ested therein,  by  one  Avho  is  also  interested,  or  by  one  who 
stands  in  such  relation  to  the  person  interested  as  to  afford  a 
reasonable  ground  for  supposing  the  motive  for  the  communi- 
cation iiHiocent.  or  who  is  requested  by  the  person  interested 
to  give  the  information. 

4.  By  a  fair  and  true  report,  Avithout  malice,  in  a  public 
journal,  of  a  judicial,  legislative,  or  other  public  official  pro- 
ceeding, or  of  anything  said  in  the  course  thereof,  or  of  a 
verified  chai"ge  or  complaint  made  by  any  person  to  a  public 
official,  upon  which  complaint  a  warrant  shall  have  been 
issued. 

5.  By  a  fair  and  true  report,  without  malice,  of  the  pro- 
'oedings  of  a  public  meeting,-  if  such  meeting  was  lawfully 
convened  for  a  lawful  purpose  and  open  to  the  public,  or  the 
publication  of  the  matter  complained  of  was  for  the  public 
benefit.     [Amendment  approved  1895;  Stats.  1895,  p.  167.] 

Legislation  §  47.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  31),  and  then  read:  "A  privileged  publication  is  one 
made:  1.  In  the  proper  discharge  of  an  official  duty;  2.  In  testifying 
as  a  witness  in  any  proceeding  authorized  by  law  to  a  matter  pertinent 
and  material,  or  in  reply  to  a  question  allowed  by  the  tribunal.  3.  In 
a  communication,  without  malice,  to  a  person  interested  therein,  by 
one  who  was  also  interested,  or  who  stood  in  such  a  relation  to  the 
former  as  to  afford  a  reasonable  ground  for  supposing  his  motive  inno- 
cent, or  who  was  requested  by  him  to  give  the  information;  4.  By  a 
fair  and  true  report  in  a  newspaper,  without  malice,  of  a  judicial,  legis- 
lative, or  other  public  official  proceeding,  or  of  anything  said  in  the 
course  thereof." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  184,  to  read  as  at  present, 
except  that  (1)  it  did  not  contain  subd.  o,  and  (2)  subd.  4,  read:  "By  a 


51.  Persona!  Rights;  All  Persons  Have  Equal.  All  citizens 
within  the  jurisdiction  of  this  state  are  entitled  to  the  full  and 
equal  accommodations,  advantages,  facilities  and  privileges  of 
inns,  restaurants,  hotels,  eating  houses,  barber  shops,  bath 
houses,  theaters!,  skating  rinks,  [public  conveyances],  and  all 
other  places  of  public  accommodation  or  amusement,  subject 
only  to  the  conditions  and  limitations  established  by  law,  and 
applicable  alike  to  all  citizens.  (In  effect  90  days  from  and 
after   April   22,    1919.     Stats.    1919,    Chap.    210.)  Civil    Code,    1919. 


21  PERSONAL   RIGHTS.  §  51 

fair  and  true  report,  without  malice,  of  a  .iudieial,  legislative,  or  other 
public  official  proeeediug,  or  of  anything  said  in  the  course  thereof." 

3.  Amended  by  Stats.  1895,  p.  167,  (1)  adding  subd.  5,  and  (2)  chan- 
ging subd.  4  to  read  as  at  present. 

4.  Amendment  by  Stats.  1901,  p.  334;  unconstitutional.  See  note, 
§  4,  ante. 

§  48.     Malice  not  inferred.     In  the   cases  provided  for  in 
subdivisions  three,   four,   and   five,   of  the  preceding   section, 
malice  is  not  inferred  from  the  communication  or  publication. 
[Amendment  approved  1895;  Stats.  1895,  p.  167.] 
Legislation  §  48.     1.  Enacted  March  21,  1872, 

2.  Amended  by  Stats.  1895,  p.  167,  changing  "3  and  4"  to  "three, 
four,  and  five." 

§49.  Personal  relations  forbid  abduction  and  seduction, 
and  injury  to  servant.     The  rights  of  personal  relations  forbid : 

1.  The  abduction  of  a  husband  from  his  wife,  or  of  a  parent 
from  his  child. 

2.  The  abduction  or  enticement  of  a  wife  from  her  husband, 
or  a  child  from  a  parent,  or  from  a  guardian  entitled  to  its 
custody. 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or 
servant. 

4.  Any  injury  to  a  servant  which  affects  his  ability  to  serve 
his  master.     [Amendment  approved  1905;  Stats.  1905,  p.  68.] 

Action  for  seduction:  See  Code  Civ.  Proc,  §§  374,  375. 
Legislation  §  49.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  32. 

2.  Amendment  by  Stats.  1901,  p.  334;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  68,  in  subd.  2,  (1)  changing  "of"  to 
"or"  before  "a  child,"  and  (2)  omitting  "or  of  a  servant  from  his 
master"  at  end  of  subdivision. 

§  50.  Right  to  use  force.  Any  necessary  force  may  be  used 
to  protect  from  wrongful  injury  the  person  or  property  of 
oneself,  or  of  a  wife,  husband,  child,  parent,  or  other  relative, 
or  member  of  one's  family,  or  of  a  ward,  servant,  master,  or 
guest.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  184.] 

Lawful  resistance  to  commission  of  offenses:  See  Pen.  Code,  §§  692- 
694. 

Legislation  §  50.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §33),  and  then  read:  "Any  necessary  force  may  be 
used  to  protect  from  wrongful  injury  the  person  or  property  of  one- 
self, or  of  a  wife,  husband,  child,  parent,  or  other  relative  to  the  third 
degree,  a  ward,  servant,  or  master." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  184. 

§  51.  Personal  rights,  all  persons  have  equal.  All  citizens 
within  the  jurisdiction  of  this  t,tate  are  entitled   to  the  full 


§  53  CIVIL   CODE.  22 

Mild  i'(|ual  iit'coiiuiKxIntioiis.  iidvanta^os,  I'acilitios,  and  privi- 
loiios  of  inns,  i-i'staui-aiits,  liotcls.  eatinu-houses,  barber-sliops, 
liath-hoiisos,  tlu>ators,  skatiim-rinks,  and  all  other  places  of 
public  acooniniodation  or  amusoniont,  subject  only  to  the  con- 
ditions and  limitations  ostablisliod  by  law  and  applicable  alike 
to  all  citizens. 

Legislation  §  51.  1.  Addition  by  Stats.  1901,  p.  334;  unconstitutional. 
See  note.  §  -1.  ante. 

2.  Added  by  Stats.  1905,  p.  553.  See  post,  Legislation  §  52,  for  code 
commissioner's  note. 

§  52.  Violation  of  personal  rights.  Damages.  Whoever 
violates  any  oi"  the  provisions  of  the  last  preceding,'  section,  by 
denying  to  any  citizen,  except  for  reasons  applicable  alike  to 
every  race  or  color,  the  full  accommodations,  advantages, 
facilities,  and  privileges  in  said  section  enumerated,  or  by  aid- 
ing or  inciting  such  denial,  or  whoever  makes  any  discrimina- 
tion, distinction,  or  restriction  on  account  of  color  or  race,  or 
except  for  good  cause,  applicable  alike  to  all  citizens  of  every 
color  or  race  whatever,  in  respect  to  the  admission  of  any 
citizen  to.  or  his  treatment  in,  any  inn,  hotel,  restaurant, 
eating-house.  ])arber-shop,  bath-house,  theater,  skating-rink, 
or  other  public  place  of  amusement  or  accommodation,  whether 
such  place  is  licensed  or  not,  or  whoever  aids  or  incites  such 
discrimination,  distinction,  or  restriction,  for  each  and  every 
such  offense  is  liable  in  damages  in  an  amount  not  less  than 
fifty  dollars,  which  may  be  recovered  in  an  action  at  law 
broutrht  for  that  purpose. 

Legislation  §  52.     1.  Addition  by  Stats.  1901,  p.  334;  unconstitutional. 

See  note.  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  553;  the  code  commissioner  saying  in  his 

note  to  §§  51,  52,  "The  statute  of  1897,  p.  137,  relating  to  the  rights  of 

persons,  is  codified  in  the  two  sections  above  named." 

§  53.  Admittance  to  places  of  amusement,  etc.,  on  presenta- 
tion of  ticket,  or  price  of  ticket.  Exceptions.  It  is  unlawful 
for  any  coipoiation.  person,  or  association,  or  the  proprietor, 
lessee,  or  the  agents  of  either,  of  any  opera-house,  theater, 
melodeon,  museum,  circus,  caravan,  race-course,  fair,  or  other 
place  of  public  amusement  or  entertainment,  to  refuse  admit- 
tance to  any  person  over  the  age  of  twenty-one  years,  who 
presents  a  ticket  of  admission  acquired  by  purchase,  or  who 
tenders  the  price  thereof  for  such  ticket,  and  who  demands 
admission  to  such  place.  Any  person  under  the  influence  of 
liquor,  or  who  is  guilty  of  boisterous  conduct,  or  any  person 
of  lewd  or  immoral  character,  may  be  excluded  from  any  such 
place  of  amusement. 

Legislation  §  53.     1.  .Addition  by  Stats.  1901,  p.  335;  unconstitutional. 

See  note,  §  4,  ante. 


512.  Violation  of  Personal  Rights;  Damages.  Whoever  [denies 
to  any  citizen,]  except  for  reasons  applicable  alike  to  every  race 
or  color,  the  full  accommodations,  advantages,  facilities,  and 
privileges  I  enumerated  in  section  fifty-one  of  this  code,  or  who 
aids,  or  incites,]  such  denial,  or  whoever  makes  any  discrim- 
ination, distinction  or  restriction  on  account  of  color  or  race, 
or  except  for  good  cause,  applicable  alike  [to  citizens]  of  every 
color  or  race  [whatsoever],  in  respect  to  the  admission  of  any 
citizen  to,  or  his  treatment  in,  any  inn,  hotel,  restaurant,  eat- 
ing house,  barber  shop,  bath  house,  theater,  skating  rink, 
(public  conveyance,]  or  other  public  place  of  amusement  or  ac- 
cominodatiim,  whether  such  place  is  licensed  or  not,  or  whoever 
aids  or  incites  such  discrimination,  distinction  or  restriction,  for 
each  and  every  such  offense  is  liable  in  damages  in  an  amount 
not  less  than  [one  hundred]  dollars,  which  may  be  recovered 
in  an  action  at  law  l)rou«lit  lor  that  purpose.  (In  effect  90  days 
from    and    after    April    22,    llUii.     Statsi.    1919,    Cliap.    210.) 

Civil    Code,    1919. 


23  PERSONAL.   RIGHTS.  §  54 

2.  Added  by  Stats.  1905,  p.  554.     See  post,  Legislation,  §  54,  for  code 
commissioner's  note. 

§  54.  Violation  of  right  of  admission  to  places  of  amuse- 
ment. Damages.  Any  person  who  is  refused  admission  to 
any  place  of  amusement  contrary  to  the  provisions  of  the  last 
preceding  section,  is  entitled  to  recover  from  the  proprietor, 
lessee,  or  their  agents,  or  from  any  such  person,  corporation, 
or  association,  or  the  directors  thereof,  his  actual  damages,  and 
one  hundred  dollars  in  addition  thereto. 

Legislation  §  54.     1.  Addition  by  Stats.  1901,  p.  335;  unconstitutional. 

See  note,  §  4,  ante. 

2.  Added  by   Stats.   1905,   p.   554;   the   code   commissioner   saying  in 

his  note  to  §§  53,  54,  "The  statute  of  1893,  p.  220,  relating  to  the  rights 

of  persons,  is  codified  in  the  sections  above  named." 


§  55  CIVIL   CODE.  24 

PAET  III. 

PERSONAL  RELATIONS. 

Title  I.  Marriage.     §§55-181. 

II.  Parent  AND  Child.     §§193-230. 

III.  Guardian  and  Ward.     §§  236-258. 

IV.  Master  and  Apprentice.     §§  264-276. 

TITLE  I. 

Marriage. 

Chapter  I.,    The  Contract  of  Marriage.    Articles  I-III.     §§  55-80. 
II.     Divorce.     Articles   I-IV.     §§  S2-14S. 
III.     Husband  and  Wife.     §§  155-181. 

CHAPTER  I. 

The  Contract  of  Marriage. 

Article  I.     Validity  of  Marriage.     §§  55-03. 

II.     Authentication  of  Marriage.     §§  68-79a. 
III.     Judicial  Determination  of  Void  Marriages.     §  80. 

AETICLE  I. 

Validity  of  Marriage. 

§  55.  What  constitutes  marriage. 

§  56.  Minors  capable  of  contracting  marriage. 

§  57.  Marriage.     How  proved. 

§  58.  Certain  marriages  voidable.     [Repealed.] 

§  59.  Incompetency  of  parties  to  marriage. 

§  60.  Marriages.     Illegal. 

§  61.  Subsequent  marriage.     When  illegal  and  void. 

§  62.  Released  from  marriage  contracts  when. 

§  63.  Marriages  contracted  without  the  state. 

§  55.  What  constitutes  marriage.  Marriage  is  a  personal 
relation  arising  ont  of  a  civil  contract,  to  which  the  consent 
of  parties  capable  of  making  that  contract  is  necessary.  Con- 
sent alone  will  not  constitute  marriage;  it  must  be  followed  by 
a  solemnization  authorized  by  this  code.  [Amendment  ap- 
proved 1895;  Stats.  1895,  p.  m.] 
Necessity  of  solemnization:  Post,  §  68. 

Legislation  §  55.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  424,  §  1. 

2.  Amended  by  Stats.  1895,  p.  121,  changing  the  final  words,  "'author- 
ized by  this  code,"  from  "or  by  a  mutual  assumption  of  marital  rights, 
duties,  or  obligations." 


56.  Minors  Capable  of  Contracting  iVIarriage.  Any  unmar- 
ried male  of  the  age  of  [twenty-one]  years  or  upwards  and  any 
unmarried  female  of  the  age  of  [eighteen]  years  or  upwards  and 
not  othei-wise  disqualified,  is  capable  of  consenting  to  and  con- 
summating marriage[;  provided,  that  any  male  under  the  age 
of  twenty-one  years  and  over  the  age  of  eighteen  years  and  any 
female  under  the  age  of  eighteen  years  and  over  the  age  of 
sixteen  years,  with  the  consent  in  writing  of  the  parents  of  the 
person  under  age,  or  one  of  such  parents,  or  of  his  or  her  guard- 
ian, where  such  written  consent  is  filed  by  the  clerk  issuing  the 
marriage  license,  as  provided  In  section  sixty-nine  of  the  Civil 
Code,  is  capable  of  consenting  to  and  consummating  marriage  J 
(In  effect  90  days  from  and  after  April  29,  1921  Stats  1921 
^^^^-    233.)  Civ.    Code',    192i: 


25  VALIDITY  OF   MARRIAGE.  §  60 

§  56.  Minors  capable  of  contracting  marriage.  Adj  im- 
married  male  of  the  age  of  eighteen  years  or  upwards,  and 
any  unmarried  female  of  the  age  of  fifteen  years  or  upwards, 
and  not  otherwise  disqualified,  are  capable  of  eousenting  to 
and  consummating  marriage. 

Legislation  §  56.     Enacted  March   21,   1872,  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  36;  Cooley  Bl.  Conim.,  I,  43.5. 

§  57.  Marriage.  How  proved.  Consent  to  marriage  and 
solemnization  thereof  may  be  proved  under  the  same  general 
rules  of  evidence  as  facts  are  proved  in  other  cases.  [Amend- 
ment approved  1895;  Stats.  1895.  p.  121.] 

Legislation  §  57.  1.  Enacted  March  21,  1872,  and  then  read,  "Con- 
sent to  and  subsequent  consummation  of  marriage  may  be  manifested 
in  any  form,  and  may  be  proved  under  the  same  general  rules  of  evi- 
dence as  facts  in  other  cases";  the  code  commissioners  saying,  "Sec.  35, 
New  York  Civil  Code,  is  as  follows:  'Consent  to  a  marriage  may  be 
manifested  in  any  form,  and  may  be  proved  like  any  other  fact.'  " 
2.  Amended  by  Stats.  1895,  p.'  121. 

§  58.  Certain  marriages  voidable.  [Repealed  1905 ;  Stats. 
1905,  p.  554.] 

Penalty  for  false  personation  in  marital  relations:  Pen.  Code,  §  528. 
Grounds  for  annulment:   See  post,  §  82,  subd.  4. 
Legislation  §  58.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  185. 

3.  Eepeal  by  Stats.  1901,  p.  335;  unconstitutional.     See  note,  §  4,  ante. 

4.  Repealed  by  Stats.  1905,  p.  554;  the  code  commissioner  saying, 
"The  provisions  of  this  section  are  contained  in  the  present  §  82.  The 
section  is  therefore  unnecessary." 

§  59.     Incompetency  of  parties  to  marriage.     Marriages  be- 
tween   parents    and    children,    ancestors    and    descendants    of 
every  degree,  and  between  brothers  and  sisters  of  the  half  as 
well  as  the  whole  blood,  and  between  uncles  and  nieces  or 
aunts  and  nephews,  are  incestuous,  and  void  from  the  begin- 
ning, whether  the  relationship  is  legitimate  or  illegitimate. 
Penalty  for  incestuous  marriages:  Pen.  Code,  §§  285,  359. 
Legislation  §  59.     Enacted  March  21,  1872;   based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  38;  Stats.  1850,  p.  424,  §  2. 

§  60.  Marriages.  Illegal.  All  marriages  of  white  persons 
with  negroes,  Mongolians,  or  mulattoes  are  illegal  and  void. 
[Amendment  approved  1905;  Stats.  1905,  p.  554.] 

Marriages  between  whites  and  negroes,  mulattoes  or  Mongolians:  See 
post,  §  69. 

Legislation  §  60.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  424,  §  3. 

2.  Amendment  by  Stats.  1901,  p.  335;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amcnfled  by  Stats.  1905,  p.  554,  inserting  "Mongolians";  the  code 
commissioner  saying,  "The  change  consists  in  the  insertion  of  the  word 
'Mongolians'  after  the  word  'negroes.'  " 


§  62  CIVIL   CODE.  26 

§  61.     Subsequent    marriage.    When    illegal    and    void.    A 

subsequent  marriage  contracted  by  any  person  during  the  life 
of  a  former  husband  or  wife  of  such  person,  with  any  person 
other  than  such  former  husband  or  wife,  is  illegal  and  void 
from  the  beginning,  unless : 

1.  The  former  marriage  has  been  annulled  or  dissolved.  In 
no  case  can  a  marriage  of  either  of  the  parties  during  the  life 
of  the  other,  be  valid  in  this  state,  if  contracted  within  one 
year  after  the  entry  of  an  interlocutory  decree  in  a  proceeding 
for   divorce. 

2.  Unless  such  former  husband  or  wife  is  absent,  and  not 
known  to  such  person  to  be  living  for  the  space  of  five  sue 
cessive  years  immediately  preceding  such  subsequent  marriage, 
or  is  generally  reputed  or  believed  by  such  person  to  be  dead 
at  the  time  such  subsequent  marriage  was  contracted.  In 
either  of  which  cases  the  subsequent  marriage  is  valid  until  its 
nullity  is  adjudged  by  a  competent  tribunal.  [Amendment 
approved  1&03 ;  Stats.  1903,  p.  176.] 

Penalty  for  bigamy:  Pen.  Code,  §§  283,  284.  Exceptions;  Pen.  Code, 
§  282. 

Interlocutory  decrees:  See  post,  §§  131,  132. 

Former  husband  or  wife  living:  See  post,  §  82. 

Legislation  §  61.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  40),  and  then  read:  "A  subsequent  marriage  con- 
tracted by  any  person  during  the  life  of  a  former  husband  or  wife  of 
such  person,  with  any  person  other  than  such  former  husband  or  wife, 
is  illegal  and  void  from  the  beginning,  unless:  1.  The  former  marriage 
had  been  annulled  or  dissolved;  or,  2.  Unless  such  former  husband  or 
wife  was  absent,  and  not  known  to  such  person  to  be  living,  for  the 
space  of  five  successive  years  immediately  preceding  such  subsequent 
marriage;  in  which  case  the  subsequent  marriage  is  void  only  from 
the  time  its  nullity  is  adjudged  by  a  competent  tribunal." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  185,  in  subd.  2,  (1)  inserting 
"or  was  generally  reputed  and  was  believed  by  such  person  to  be  dead 
at  the  time  such  subsequent  marriage  was  contracted,"  and  (2)  sub- 
stituting "in  either  of  which  cases  the  subsequent  marriage  is  valid 
until"  for  "in  which  case  the  subsequent  marriage  is  void  only  from 
the  time." 

3.  Amended  by  Stats.  1897,  p.  34,  (1)  in  subd.  1,  adding  "provided, 
that  in  case  it  be  dissolved,  the  decree  of  divorce  must  have  been  ren- 
dered and  made  at  least  one  year  prior  to  such  subsequent  marriage," 
and  (2)  in  subd.  2,  changing  "and  was  believed"  to  "or  believed"  after 
"generally  reputed." 

4.  Amendment  by  Stats.  1901,  p.  335;  unconstitutional.  See  note,  §  4, 
ante. 

5.  Amended  by  Stats.  1903,  p.  176. 

§  62.  Released  from  marriage  contracts  when.  Neither 
party  to  a  contract  to  marry  is  bound  by  a  promise  made  in 
ignorance  of  the  other's  want  of  personal  chastity,  and  either  is 
released  therefrom  by  unchaste  conduct  on  the  part  of  the 


27  AUTHENTICATION   OF  MARRIAGE.  §  69 

other,  unless  both  parties  participate  therein.     [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  185.] 

Legislation  §  62.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  44. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  185,  adding,  at  end  of  sec- 
tion, the  words  "unless  both  parties  participate  therein." 

§  63.  Marriages  contracted  without  the  state.  All  mar- 
riages contracted  without  this  state,  which  would  be  valid  by 
the  laws  of  the  country  in  which  the  same  were  contracted,  are 
valid  in  this  state. 

Legislation  §  63.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  424,  §  5. 

AETICLE  II. 

Authentication  of  Marriage. 

§  68.     Marriages.     Procedure  required. 
§  69.     Marriage  licenses. 
§  69a.  Certificate  of  registry  of  marriage. 
§  70.     Marriages,  by  whom  may  be  solemnized. 
§  71.     No  particular  form  of  solemnization. 
§  72.     Requirements  by  persons  solemnizing  marriage. 
§  73.     Certificates  of  marriage. 
§  74.     Certificate  to  parties  and  recorder. 

§  75.     Declaration  of  marriage,  how  made.     [Repealed.]  - 

§  76.     Declaration  where  there  is  no  record. 
§  77.     To  be  acknowledged  and  recorded. 

§  78.     Either  party  may  proceed  to  test  validity  of  marriage. 
§  79.     Marriage  without  license. 

§  79a.  Provisions  of  this  chapter  not  applicable  to  members  of  particular 
religious  denomination. 

§  68.  Marriages.  Procedure  required.  Marriage  must  be 
licensed,  solemnized,  authenticated,  and  recorded  as  provided 
in  this  article;  but  non-compliance  with  its  provisions  by  others 
than  a  party  to  a  marriage  does  not  invalidate  it.  [Amend- 
ment approved  1905;  Stats.  1905,  p.  554.] 

Necessity  of  solemnization:  See  ante,  §  55. 
Form  of  solemnization:  See  post,  §  71. 
License,  necessity  of:  See  post,  §§  69,  72,  79,  79a. 
Legislation  §  68.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Stats.  1895,  p.  121,  (1)  inserting  "by  other  than  the 
parties  to  a  marriage,"  and  (2)  changing  "any  lawful  marriage"  to 
"that  marriage." 

3.  Amendment  by  Stats.  1901,  p.  336;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  554,  changing  (1)  "other  than  the  par- 
ties" to  "others  than  a  party,"  and  (2)  "that  marriage"  to  "it";  the 
code  commissioner  saying  in  his  note,  after  noting  the  changes,  "The 
meaning  of  the  section  is  unchanged." 

§  69.  Marriage  licenses.  All  persons  about  to  be  joined  in 
marriage  must  first  obtain  a  license  therefor,  from  the  county 


§  69  CIVIL   CODE.  28 

clerk  of  the  county  in  Avhicli  the  marriage  is  to  be  celebrated, 
which  license  must  show: 

1.  The  identity  of  the  parties. 

2.  Their  real  and  full  names,  and  places  of  residence. 

3.  Their  ages;  and 

4.  Whether  white,  Mongolian,  negro  or  mulatto. 

No  license  must  be  granted  when  either  of  the  parties,  appli- 
cants therefor,  is  an  imbecile,  or  insane,  or  who  at  the  time 
of  making  the  application,  or  proofs  herein  required,  for  said 
license,  is  under  the  influence  of  any  intoxicating  liquor,  or 
narcotic  drug ;  no  license  must  be  issued  authorizing  the  mar- 
riage of  a  white  person  with  a  negro,  mulatto,  or  Mongolian . 
If  the  male  is  under  the  age  of  tAventy-one  years,  or  the  female 
is  under  the  age  of  eighteen  years,  and  such  person  has  not 
been  previously  married,  no  license  must  be  issued  by  the 
county  clerk  unless  the  consent  in  writing  of  the  parents  of 
the  person  under  age,  or  one  of  such  parents,  or  of  his  or  her 
guardian,  is  presented  to  him,  duly  verified  by  such  parents,  or 
parent,  or  guardian;  and  such  consent  must  be  filed  by  the 
clerk,  and  he  must  state  such  facts  in  the  license.  For  the 
purpose  of  ascertaining  all  the  facts  mentioned  or  required  in 
this  section,  the  clerk,  at  the  time  the  license  is  applied  for, 
may,  if  he  deems  it  necessary  in  order  to  satisfy  himself  as 
to  matters  in  this  section  enumerated,  examine  the  male  appli- 
cant for  a  license  on  oath,  which  examination  shall  be  reduced 
to  writing  by  the  clerk,  and  subscribed  by  him.  [Amendment 
approved  1907;  Stats.  1907,  p.  305.] 

License,  necessity  of:  See  ante,  §  68;  post,  §§  72,  79,  79a. 

Marriages  between  whites  and  mulattoes,  negroes  or  Mongolians:  .See 
ante,  §  60. 

Legislation  §  69.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  47;  Stats.  1850,  p.  424,  §  7),  and  then  read:  "All  per- 
sons about  to  be  joined  in  marriage  must  first  obtain  a  license  therefor 
from  the  clerk  of  the  county  court  of  the  county  in  which  the  marriage 
is  to  be  celebrated,  showing:  1.  The  identity  of  the  parties;  2.  Their 
real  and  full  names  and  places  of  residence;  3.  That  they  are  of  suffi- 
cient age  to  be  capable  of  contracting  marriage;  4.  If  the  male  is  under 
the  age  of  twenty-one,  or  the  female  under  the  age  of  eighteen  years, 
the  consent  of  the  father,  mother,  or  guardian,  if  any  such,  is  given; 
or  that  such  nonaged  person  has  been  previously,  but  is  not  at  the  time, 
married.  For  the  purpose  of  ascertaining  these  facts,  the  clerk  is 
authorized  to  examine  parties  and  witnesses  on  oath,  and  receive  and 
read  affidavits.     He  must  state  such  facts  in  the  license." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  186,  changing  subds.  3  and 
^  4  to  read:  "Three.  Their  ages.  Four.  If  the  male  be  under  the  age 
of  twenty-one,  or  the  female  under  the  age  of  eighteen  years,  the  con- 
sent of  the  father,  mother,  or  guardian,  or  of  one  having  the  charge 
of  such  person,  if  any  such  be  given;  or  that  such  nonaged  person 
has  been  previously,  but  is  not  at  the  time,  married.  For  the  purpose 
of  ascertaining  these  facts,  the  clerk  is  authorized  to  examine  parties 


29  AUTHENTICATION   OP   MARRIAGE.  §  69a 

and  witnesses  on  oath,  and  to  receive  affidavits,  and  he  must  state 
such  facts  in  the  license.  If  the  male  be  under  the  age  of  twenty-one 
years,  or  the  female  be  under  the  age  of  eighteen,  and  such  person  has 
not  been  previously  married,  no  license  shall  be  issued  by  the  clerk, 
unless  the  consent  in  writing  of  the  parents  of  the  person  under  age, 
or  of  one  of  such  parents,  or  of  his  or  her  guardian,  or  of  one  having 
charge  of  such  person,  be  presented  to  him;  and  such  consent  shall  be 
filed  by  the  clerk." 

3.  Amended  by  Code  Amdts.  1880,  p.  3,  to  read:  "All  persons  about 
to  be  joined  in  marriage  must  first  obtain  a  license  therefor  from  the 
county  clerk  of  the  county  in  which  the  marriage  is  to  be  celebrated, 
showing:  One.  The  identity  of  the  parties.  Two.  Their  real  and  full 
names,  and  places  of  residence.  Three.  Their  ages.  Four.  If  the  male 
be  under  the  age  of  twenty-one,  or  the  female  under  the  age  of  eighteen 
years,  the  consent  of  the  father,  mother,  or  guardian,  or  of  one  having 
the  charge  of  such  person,  if  any  such  be  given;  or  that  such  nonaged 
person  has  been  previously,  but  is  not  at  the  time,  married.  For  the 
purpose  of  ascertaining  these  facts,  the  clerk  is  authorized  to  examine 
parties  and  witnesses  on  oath,  and  to  receive  afiidavits,  and  he  must 
state  such  facts  in  the  license.  If  the  male  be  under  the  age  of  twenty- 
one  years,  or  the  female  be  vmder  the  age  of  eighteen,  and  such  person 
has  not  been  previously  married,  no  license  shall  be  issued  by  the  clerk, 
unless  the  consent,  in  writing,  of  the  parents  of  the  person  under  age, 
or  of  one  of  such  parents,  or  of  his  or  her  guardian,  or  of  one  having 
charge  of  such  person,  be  presented  to  him;  and  such  consent  shall  be 
filed  by  the  clerk;  provided,  that  the  said  clerk  shall  not  issue  a  license 
authorizing  the  marriage  of  a  white  person  with  a  negro,  mulatto,  or 
Mongolian." 

4.  Amendment  by  Stats.  1901,  p.  336;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  182,  to  read:  "All  persons  about  to  be 
joined  in  marriage  must  first  obtain  a  license  therefor  from  the  county 
clerk  of  the  county  in  which  the  marriage  is  to  be  celebrated,  and  must 
upon  oath  qualify  and  show  as  follows:  1.  The  identity  of  the  parties; 
2.  Their  real  and  full  names  and  places  of  residence;  3.  Their  ages; 
4.  No  license  must  be  granted  when  either  of  the  parties  applicants 
therefor  is  an  imbecile  or  insane,  or  who  at  the  time  of  making  appli- 
cation for  said  license  is  under  the  influence  of  any  intoxicating  liquor, 
or  narcotic  drug;  5.  No  license  must  be  issued  authorizing  the  marriage 
of  a  white  person  with  a  negro,  mulatto,  or  Mongolian;  6.  If  the  male 
is  under  the  age  of  twenty-one,  or  the  female  under  the  age  of  eighteen 
years,  the  consent  of  the  father,  mother  or  guardian,  if  such  consent 
is  given;  or  that  such  nonaged  person  has  been  previously,  but  is  not  at 
the  time  married.  If  the  male  is  under  the  age  of  twenty-one,  or  the' 
female  under  the  age  of  eighteen  years,  and  such  person  has  not  been 
previously  married,  no  license  must  be  issued  by  the  clerk,  unless  the 
consent  in  writing  of  the  parents  of  the  person  under  age,  or  one  of 
such  parents,  or  of  his  or  her  guardian  is  presented  to  him  duly  veri- 
fied by  such  parents  or  parent  or  guardian;  and  such  consent  must  be 
filed  by  the  clerk  and  he  must  state  such  facts  in  the  license.  For  the 
purpose  of  ascertaining  all  the  facts  mentioned  and  required  in  this 
section,  the  clerk  must  at  the  time  the  license  is  applied  for  examine 
the  parties  to  whom  the  license  is  to  be  issued  under  oath  and  reduce 
such  examination  to  writing  to  be  by  them  subscribed." 

6.  Amended  by  Stats.  1907,  p.  305. 

§  69a.     Certificate    of    registry    of    marriage.     All    persons 
about  to  be  joined  in  marriage  must  obtain  from  the  county 


§  72  CIVIL  CODE.  30 

clerk  of  the  county  in  which  the  marriage  is  to  be  celebrated, 
in  addition  to  the  license  therefor  provided  for  in  section  sixty- 
nine  of  the  Civil  Code,  a  certificate  of  registry  as  provided  in 
section  three  thousand  and  seventy-six  of  the  Political  Code 
which  shall  contain  among  other  matters  as  near  as  can  be 
ascertained,  the  race,  color,  age,  name  and  surname,  birth- 
place, residence  of  the  parties  to  be  married,  number  of  mar- 
riage and  condition  of  each,  whether  single,  widowed,  or 
divorced,  the  occupation  of  the  parties,  maiden  name  of  the 
female,  if  previously  married,  the  names  and  birthplaces  of 
the  parents  of  each,  and  the  maiden  name  of  the  mother  of 
each,  which  said  certificate  of  registry  shall  be  filled  out  as 
herein  provided  in  the  presence  of  the  county  clerk  issuing 
the  marriage  license  and  shall  then  be  presented  to  the  person 
performing  the  ceremony  and  shall  be  filed  by  him  with  the 
county  recorder  within  three  days  after  the  ceremony. 
Legislation  §  69a.     Added  by  Stats.  1909,  p.  1093. 

§70.    Marriages,  by  whom  may  be  solemnized.    Marriage 

may  be  solemnized  by  either  a  justice  of  the  supreme  court, 
justice  of  the  district  courts  of  appeal,  judge  of  the  superior 
court,  justice  of  the  peace,  judge  of  any  police  court,  city 
recorder,  priest  or  minister  of  the  gospel  of  any  denomination. 
[Amendment  approved  1907;  Stats.  1907.  p.  80.] 

Form  of  marriage  ceremony:  See  Const.  1879,  art.  xx,  §  7;  see  also 
Const.  1863,  art.  xi,  §  12. 

Penalty  for  solemnization  of  illegal  marriage:  Pen.  Code,  §  359. 

Legislation  §  70.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §45;  Stats.  1850,  p.  424,  §  7),  and  then  read:  "Mar- 
riage may  be  solemnized  by  either  a  justice  of  the  supreme  court,  dis- 
trict or  county  judge,  justice  of  the  peace,  mayor,  priest,  or  minister 
of  the  gospel  of  any  denomination." 

2.  Amended  by  Code  Amdts.  1880,  p.  4,  to  read:  "Marriage  may  be 
solemnized  by  either  a  justice  of  the  supreme  court,  judge  of  the  su- 
perior court,  justice  of  the  peace,  priest,  or  minister  of  the  gospel  of 
any  denomination." 

3.  Amendment  by  Stats.  1901,  p.  336;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1903,  p.  255,  inserting  "judge  of  any  police 
court,  city  recorder." 

5.  Amended  by  Stats.  1907,  p.  80. 

§  71.  No  particular  form  of  solemnization.  No  particular 
form  for  the  ceremony  of  marriage  is  required,  but  the  par- 
ties must  declare,  in  the  presence  of  the  person  solemnizing 
the  marriage,  that  they  take  each  other  as  husband  and  wife. 
Legislation  §  71.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  46. 

§  72.     Requirements  by  persons  solemnizing  marriage.     The 
person  solemnizing  a  marriage  must  first  require  the  presen- 


73.  Certificates  of  Marriage.  The  person  solemnizing  a  mar- 
riage must  make,  sign  and  endorse  upon  or  attacli  to  ttie  license 
a    certificate    showing: 

1.  The    fact,    time    and    place    of    solemnization;    and 

2.  The  names  and  places  of  residence  of  one  or  more  witnesses 
to   the   ceremony. 

[3,  A  statement  of  the  official  position  of  the  person  solemniz- 
ing the  marriage,  or  of  the  denomination  of  which  said  person  Is 
a  priest  or  minister.]  (In  effect  90  days  from  and  after  April 
22,    1919.     Stats.    1919,    Chap.    111.)  Civil    Code,    1919. 


31  AUTHENTICATION   OF  MARRIAGE.  §  75 

tation  of  the  marriage  license;  and  if  he  has  any  reason  to 
doubt  the  correctness  of  its  statement  of  facts,  he  must  first 
satisfy  himself  of  its   correctness,   and  for  that  purpose   he 
may  administer  oaths  and  examine  the  parties  and  witnesses  in 
like  manner  as  the  county  clerk  does  before  issuing  the  license. 
[Amendment  approved  1874;  Code  Amdts.  1873^74,  p.  186.] 
License,  necessity  of:  See  ante,  §§  68,  69;  post,  §§  79,  79a. 
Legislation  §  72.     1,  Enacted  Marcli  21,  1872  (based  on  Stats.  1850, 
p.  424,   §§7,  8),  and  then  read:   "The  person  solemnizing  a  marriage 
must  first  require  the  presentation  of  the  marriage  license,  and  satisfy 
himself  that  it  substantially  conforms  to  section  69,  and  that  the  facts 
set  forth  in  it  are  true.     For  this  purpose  he  may  rely  upon  the  license 
or  may  administer  oaths  and  examine  the  parties  and  witnesses  in  like 
manner  as  the  county  clerk  does  before  issuing  the  license."     The  code 
commissioners  say:   "Sec.  47,  N.  Y.  Civ.  Code,  changed  to  conform  to 
our  license  system.     It  is  also  intended  to  give  authority  to  revise  the 
license  of  the  clerk  in  cases  where  there  are  suspicions  of  fraud." 
2.  Amended   by   Code   Amdts.  1873-74,  p.   186. 

§  73.     Certificates  of  marriage.     The  person  solemnizing  a 

marriage  niust  make,  sign,  and  indorse  upon,  or  attach  to,  the 

license,  a  certificate,  showing: 

One.     The  fact,  time,  and  place  of  solemnization ;  and, 
Two.     The  names  and  places  of  residence  of  one  or  more 

witnesses    to    the    ceremony.     [Amendment    approved    1874; 

Code  Amdts.  1873-74,  p.  187.] 

Penalty  for  false  return:  Pen.  Code,  §  360. 

Legislation  §  73.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  425,  §  8),  the  introductory  paragraph  reading  as  at  present,  the  rest 
of  the  section  reading,  "1.  That  he  believes  the  facts  stated  to  be  true, 
and  that  upon  due  inquiry  there  appears  to  be  no  legal  impediment  to 
the  marriage;  2.  The  names  and  places  of  residence  of  one  or  more 
witnesses  to  the  ceremony;  3.  The  fact,  time,  and  place  of  solemniza- 
tion." 

2,  Amended  by  Code  Amdts.  1873-74,  p.  187. 

§  74.  Certificate  to  parties  and  recorder.  He  must,  at  the 
request  of,  and  for  either  party,  make  a  certified  copy  of  the 
license  and  certificate,  and  file  the  originals  with  the  county 
recorder  within  thirty  days  after  the  marriage. 

Recorder  must  record:  Pol.  Code,  §  4131. 

Filing  certificate:  See  post,  §  79. 

Delivery  of  copy  of  certificate  of  marriage  to  parties:  See  post,  §  79. 

Legislation  §  74.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  425,  §  8. 

2.  Amendment  by  Stats.  1901,  p.  336;  unconstitutional.  See  note, 
§  4,  ante. 

§  75.     Declaration  of  marriage,  how  made.     [Repealed  1895 ; 

Stats.  1895,  p.  121.] 

Legislation  §  75.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Stats.  1895,  p.  121. 


§  79a  CIVIL  CODE.  32 

§  76.  Declaration  where  there  is  no  record.  If  no  record 
of  the  solemnization  of  a  marriage  heretofore  contracted,  be 
known  to  exist,  the  parties  may  join  in  a  written  declaration 
of  snch  marriage,  substantially  showing : 

One.     The  names,  ages,  and  residences  of  the  parties. 

Two.     The  fact  of  marriage. 

Three.  That  no  record  of  such  marriage  is  known  to  exist. 
Such  declaration  must  be  subscribed  by  the  parties  and  at- 
tested by  at  least  three  witnesses.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  187.] 

Recording:  Post,  §  79a. 

Declaration  of  marriage:  See  post,  §  79a. 

Legislation  §  76.  1.  Enacted  March  21,  1872,  and  then  read:  "If  no 
record  of  the  solemnization  of  a  marriage  is  known  to  exist,  the  par- 
ties may  join  in  a  declaration  of  such  marriage,  substantially  showing: 
1.  The  names,  age,  and  residence  of  the  parties;  2.  The  fact  of  mar- 
riage; 3.  That  no  record  of  such  marriage  is  known  to  exist." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  187. 

§  77.  To  be  acknov^^ledg'ed  and  recorded.  Declarations  of 
marriage  must  be  acknowledged  and  recorded  in  like  manner 
as  grants  of  real  propertj". 

Recording:  See  Pol.  Code,  §  4131. 

Legislation  §  77.     Enacted  March  21,  1872, 

§  78.     Either  party  may  proceed  to  test  validity  of  marriage. 

Tf  either  party  to  any  marriage  denies  the  same,  or  refuses  to 
join  in  a  declaration  thereof,  the  other  may  proceed,  by  action 
in  the  superior  court,  to  have  the  validity  of  the  inarriage 
determined  and  declared.     [Amendment  approved  1883 ;  Stats. 

1883,  p.  3.] 

Legislation  §  78.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Stats.  1883,  p.  3,  substituting  "superior"  for  "dis- 
trict" before  "court." 

§  79.  Marriag-e  w^ithout  license.  When  unmarried  persons, 
not  minors,  have  been  living  together  as  man  and  wife,  they 
may,  without  a  license,  be  married  by  any  clergyman.  A  cer- 
tificate of  such  marriage  must,  by  the  clergyman,  be  made  and 
delivered  to  the  parties,  and  recorded  upon  the  records  of  the 
church  of  which  the  clergyman  is  a  representative.  No  other 
record  need  be  made. 

License,  necessity  of:   See  ante,  §§  6S,  69,  72;  post.  §  79a. 

Filing  certificate:  See  ante,  §  74. 

Delivery  of  copy  of  license  and  certificate  to  parties:  See  ante,  §  74. 

Legislation  §  79.     Added  by  Code  Amdts.  1877-78,  p.  75. 

§  79a.  Provisions  of  this  chapter  not  applicable  to  members 
of  particular  religious  denomination.  Tlie  provisions  of  this 
chapter,  so  far  as  they  relate  to  the  solemnizing  of  marriages. 


63  JUDICIAL  DETERMINATION  OF  VOID  MARRIAGES.  §  80 

are  not  applicable  to  members  of  any  particular  religious 
denomination  having,  as  such,  any  peculiar  mode  of  entering 
the  marriage  relation;  but  such  marriages  must  be  declared, 
as  provided  in  section  seventy-six,  and  be  acknowledged  and 
recorded,  as  provided  in  section  seventy-seven.  Where  a  mar- 
riage is  declared  as  provided  in  said  section  seventy-six,  the 
husband  must  file  said  declaration  with  the  county  recorder 
within  thirty  days  after  such  marriage,  and  upon  receiving  the 
same  the  county  recorder  must  record  the  same ;  and  if  the, 
husband  fails  to  make  such  declaration  and  file  the  same  for 
record,  as  herein  provided,  he  is  liable  to  the  same  penalties 
as  any  person  authorized  to  solemnize  marriages,  who  fails  to 
make  the  return  of  such  solemnization  as  provided  by  law. 
[Amended  1905;  Stats.  1905,  p.  555.] 

License,  necessity  of:  See  ante,  §§  68,  69,  72,  79. 

Legislation  §  79a.  1.  Added  by  Stats.  1897,  p.  186,  as  §  79%,  and 
then  read:  "The  provisions  of  this  chapter,  so  far  as  they  relate  to 
procuring  licenses  and  the  solemnizing  of  marriages,  are  not  applicable 
to  members  of  any  particular  religious  denomination  having,  as  such, 
any  peculiar  mode  of  entering  the  marriage  relation;  but  such  mar- 
riages shall  be  declared,  as  provided  in  section  seventy-six  of  the  Civil 
Code  of  this  state,  and  shall  be  acknowledged  and  recorded,  as  provided 
in  section  seventy-seven  of  said  Civil  Code.  Where  a  marriage  is  de- 
clared as  is  provided  in  said  section  seventy-six,  the  husband  shall  file 
said  declaration  with  the  county  recorder  within  thirty  days  after  said 
marriage,  and  upon  receiving  the  same  the  county  recorder  shall  record 
the  same;  and  if  the  husband  fail  to  make  such  declaration  and  file 
the  same  for  record,  as  herein  provided,  he  shall  be  liable  to  the 
same  penalties  as  any  person  authorized  to  solemnize  marriages,  and 
who  fails  to  make  the  return  of  such  solemnization  as  provided  by  law." 

2.  Amendment  by  Stats.  1901,  p.  336,  and  renumbering  the  section 
79a;  unconstitutional.     See  note,  §  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  555;  the  code  commissioner  saying, 
"The  change  consists  in  the  omission  of  the  words  'procuring  a  license 
and'  after  'to,'  thus  requiring  a  license  in  every  case,  but  leaving  the 
mode  of  celebrating  the  marriage  as  at  present.  The  section  is  renum 
bered  79a." 

AETICLE  III. 

Judicial  Determination  of  Void  Marriages. 

§  80.     Void  marriages. 

§  80.  Void  marriages.  Either  party  to  an  incestuous  or 
void  marriage  may  proceed,  by  action  in  the  superior  court,  to 
have  the  same  so  declared.  [Amendment  approved  1880, 
Code  Amdts.  1880,  p.  4.] 

Legislation  §  80.     1.  Added  by  Code  Amdts.  1875-76,  p.  69. 
2.  Amended  by  Code  Amdts.  1880,  p.  4,  substituting  "superior"  for 
"district." 

Civ.  Code — 3 


§  82  CIVIL   CODE.  34 

♦l 

CHAPTER  II. 

Divorce. 

Article  I.  Nullity.     §§  82-86. 

11.  Dissolution  of  Marriage.     §§  90-107. 

III.  Causes  for  Denying  Divorce.     §§  111-132. 

IV.  General  Provisions.     §§  136-148. 

AETICLE  I. 

Nullity. 

§  82.  Causes  for  annulling  marriages. 

§  83.  Actions   therefor,   when   commenced. 

§  84.  Children  of  annulled  marriages. 

§  85.  Custody  of  children. 

§  86.  Effect  of  judgment  of  nullity. 

§  82.  Causes  for  annulling-  marriages.  A  marriage  may  be 
annulled  for  any  of  the  followinp-  causes,  existing  at  the  time 
of  the  marriage : 

One.  That  the  party  in  whose  behalf  it  is  sought  to  have 
the  marriage  annulled  "vvas  under  the  age  of  legal  consent,  and 
such  marriage  was  contracted  without  the  consent  of  his  or 
her  parents  or  guardian,  or  person  having  charge  of  him  or 
her;  unless,  after  attaining  the  age  of  consent,  such  party  for 
any  time  freely  cohabited  with  the  other  as  husband  or  wife. 

Two.  That  the  former  husl  and  or  wife  of  either  party  was 
living,  and  the  marriage  with  such  former  husband  or  wife 
was  then  in  force. 

Three.  That  either  party  Avas  of  unsound  mind,  unless  such 
party,  after  coming  to  reason,  freely  cohabit  with  the  other 
as  husband  or  wife. 

Four.  That  the  consent  of  either  party  was  obtained  by 
fraud,  unless  such  party  afterwards,  with  full  knowledge  of 
the  facts  constituting  the  fraud,  freely  cohabited  with  the 
other  as  husband  or  wife. 

Five.  That  the  consent  of  either  party  was  obtained  by 
force,  unless  such  party  afterwards  freely  cohabited  with  the 
other  as  husband  or  wife. 

Six.     That  either  party  was.  at  the  time  of  marriage,  physi- 
cally incapable  of  entering  into  the  marriage  state,  and  such 
incapacity  continues,  and  appears  to  be  incurable.     [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  187.] 
Former  husband  or  wife  living:  Ante,  §  61. 
Legislation  §  82.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §54;  Stats.  1851,  p.  186,  §  4,  subd.  2),  and  then  read 

as  at  present,  except  subd.  1,  which  read:  "1.  That  the  party  seeking 

to   have   the   marriage  annulled  was  under  the  age  of  legal  consent; 

unless,  after   attaining  the   age  of  consent,   such  party  for  any   time 

freely  cohabited  with  the  other  as  husbaud  or  wife." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  187. 


35  ANNULLING  MARRLVGES.  §  84 

§  83.  Actions  therefor,  when  commenced.  An  action  to  ob- 
tain a  decree  of  nullity  of  marriage,  for  causes  mentioned  in 
the  preceding  section,  must  be  commenced  witbin  the  periods 
and  by  the  parties,  as  follows : 

One.  For  causes  mentioned  in  subdivision  one :  by  the 
party  to  the  marriage  who  was  married  under  the  age  of  legal 
consent,  within  four  years  after  arriving  at  the  age  of  consent ; 
or  by  a  parent,  guardian,  or  other  person  having  charge  of 
such  nonaged  male  or  female,  at  any  time  before  such  married 
minor  has  arrived  at  the  age  of  legal  consent. 

Two.  For  causes  mentioned  in  subdivision  two:  by  either 
party  during  the  life  of  the  other,  or  by  such  former  husband 
or  wife. 

Three.  For  causes  mentioned  in  subdivision  three :  by  the 
party  injured,  or  relative  or  guardian  of  the  party  of  unsound 
mind,  at  any  time  before  the  death  of  either  party. 

Four.  For  causes  mentioned  in  subdivision  four:  by  the 
party  injured,  within  four  years  after  the  discovery  of  the 
facts  constituting  the  fraud. 

Five.  For  causes  mentioned  in  subdivision  five :  by  the  in- 
jured party,  within  four  years  after  the  marriage. 

Six.  For  causes  mentioned  in  subdivision  six :  by  the  in- 
jured party,  within  four  years  after  the  marriage.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  188.] 

Legislation  §  83.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  55),  subd.  1  then  reading,  "For  causes  mentioned  in 

subdivision   1:   by  either  party  to  the  marriage,  or  by  a  guardian  or 

relative,  within  four  years  after  arriving  at  the  age  of  consent." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  188. 

§  84.  Children  of  annulled  marriages.  A  judgment  of 
nullity  of  marriage  does  not  affect  the  legitimacy  of  children 
begotten  before  the  judgment.  [Amendment  approved  1905; 
Stats.  1905,  p.  555.] 

Legitimate'  children.  Who  are:  See  post,  §§  193-195.  See,  also, 
when  the  question  arises  in  divorce  eases  for  adultery,  §§  144,  145. 

Legitimacy  of  children  of  annulled  marriage:  See  post,  §  1384. 

Legislation  §  84.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  56),  and  then  read:  "Where  a  marriage  is  annulled 
on  the  ground  that  a  former  husband  or  wife  was  living,  or  on  the 
ground  of  insanity,  children  begotten  before  the  judgment  are  legiti- 
mate, and  succeed  to  the  estate  of  both  parents." 

2.  Amendment  by  Stats.  1901,  p.  337;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  555;  the  code  commissioner  saying, 
"The  design  of  the  amendment  is  to  make  the  rule  declared  in  this 
section  applicable  to  all  judgments  adjudging  marriage  null,  the  present 
section  applying  only  to  cases  where  a  marriage  is  annulled  on  the 
ground  that  a  former  husband  or  wife  was  living." 


§  91  CIVIL   CODE.  36 

§  85.  Custody  of  children.  The  court  must  award  the  cus- 
tody of  the  children  of  a  marriage  annulled  on  the  ground 
of  fraud  or  force  to  the  innocent  parent,  and  may  also  provide 
for  their  education  and  maintenance  out  of  the  property  of 
the  guilty  party. 

Legislation  §  85.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  •¥.  Civ.  Code,  §  57. 

§  86.     Effect  of  judgment  of  nullity.     A  judgment  of  nullity 
of  marriage  rendered  is  conclusive  only  as  against  the  parties 
to  the  action  and  those  claiming  under  them. 
Effect  of  decree  for  divorce:  See  post,  §  91. 

Legislation  §  86.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  58. 

ARTICLE  II. 

Dissolution  of  Marriage. 

§    90.  Marriage,  how  dissolved. 

§    91.  Effect  of  divorce. 

§    92.  Causes  for  divorce. 

§    93.  Adultery  defined. 

§    94.  Extreme  cruelty,  what. 

§    95.  Desertion,  what. 

§    96.  Desertion,  how  manifested. 

§    97.  In  case  of  stratagem  or  fraud,  who  commits  desertion.    • 

§    98.  In  ease  of  cruelty,  where  one  party  leaves  the  other,  who  commits 

desertion. 

§    99.  Separation  by  consent  not  desertion. 

§  100.  Absence  becomes  desertion,  when. 

§  101.  Consent  to  separate  revocable. 

§  102.  Desertion,  how  cured.     Effect  of  refusing  condonation. 

§  103.  Wife  must  abide  by  husband's  selection  of  home,  or  it  is  desertion 

on  her  part. 

§  104.  If  the  place  is  unfit,  and  wife  refuses  to  conform,  it  is  desertion 

by  the  husband. 

§  105.  Willful  neglect,  what. 

§  106.  Habitual  intemperance,  what. 

§  107.  Habitual  intemperance,  etc.,  for  one  year. 

§  90.     Marriage,  how  dissolved.     Marriage  is  dissolved  only.-. 

One.     By  the  death  of  one  of  the  parties;  or, 

Two.     By  the  judgment  of  a  court  of  competent  jurisdiction 

decreeing  a  divorce   of  the  parties.     [Amendment   approved 

1874;  Code  Amdts.  1873-74,  p.  189.] 

Legislation  §  90.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §59),  and  then  read:  "Marriage  may  be  dissolved: 
1.  By  the  death  of  either  of  the  parties;  or,  2.  By  a  divorce  adjudged 
by  a  court  of  competent  jurisdiction." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  189. 

§  91.  Effect  of  divorce.  The  effect  of  a  judgment  decree- 
ing a  divorce,  is  to  restore  the  parties  to  the  state  of  unmarried 
persons.  [Amendment  approved  1874;  Code  Amdts.  1873-71, 
p.  189.] 


37  DISSOLUTION   OF   MARRIAGE.  §  95 

Legislation  §  91.  1.  Enacted  March  21,  1872,  and  then  read:  "Divorce 
is  a  judgment  dissolving  the  marriage  and  restoring  the  parties  to  the 
status  of  unmarried  persons." 

2,  Amended  by  Code  Amdts.  1873-74,  p.  189. 

§  92.  Causes  for  divorce.  Divorces  may  be  granted  for 
any  of  the  following  causes : 

One.     Adultery. 

Two.     Extreme  cruelty. 

Three.     Willful  desertion. 

Four.     Willful  neglect. 

Five.     Habitual  intemperance. 

Six.  Conviction  of  felonv.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  189' ] 

Alimony:   See  post,  §§  136  et  seq. 

Community  property,  and  its  disposition  under  proceedings  for  di- 
vorce:   See  post,  §§  141   et  seq. 

Desertion  caused  by  cruelty:  See  post,  §  98. 

Legislation  §  92.  1.  Enacted  March  21,  1872;  based  on  Stats.  1851, 
p.  186,  §  4. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  189,  substituting  "must" 
for  "may"  before  "be  granted." 

§  93.  Adultery  defined.  Adultery  is  the  voluntary  sexual 
intercourse  of  a  married  person  with  a  person  other  than  the 
offender's  husband  or  wife. 

Open  and  notorious  adultery  is  punishable  by  act  of  May  15,  1872; 

See  stats.  1871-72,  p.  380.     This  act  was  codified  in  Pen.  Code,  §§  269a, 
269b. 

Legislation  §  93.  Enacted  March  21,  1872;  based  on  definition  of 
"Adultery"  in  Bouvier's  Law  Dictionary. 

§  94.  Extreme  cruelty,  what.  Extreme  cruelty  is  the 
wrongful  infliction  of  grievous  bodily  injury,  or  grievous  men- 
tal suffering,  upon  the  other  by  one  party  to  the  marriage. 
[Amendment  approved   1905;  Stats.   1905,  p.  75.] 

Legislation  §  94.  1.  Enacted  March  21,  1872;  based  on  Bishop  on 
Marriage  and  Divorce,  4th  ed.,  §  717;  Stats.  1851,  p.  186;  Stats.  1869-70, 
p.  291;  the  code  commissioners  saying,  "Statutes  of  1851,  p.  186,  author- 
izes divorce  for  'extreme  cruelty';  of  1870,  p.  291,  for  'extreme  cruelty 
by  inflicting  upon  the  other  grievous  bodily  injury  or  mental  suf- 
ering.'  " 

2.  Amendment  by  Stats.  1901,  p.  337;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  75,  inserting  "wrongful"  before  "in- 
fliction." 

§  95.  Desertion,  what.  Willful  desertion  is  the  voluntary 
separation  of  one  of  the  married  parties  from  the  other  with 
intent  to  desert. 

Legislation  §  95.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  I,  §  776;  Stats.  1851,  p.  186;  Stats.  1869-70,  p.  291.  ' 


§  100  CIVIL   CODE.  38 

§96.  Desertion,  how  manifested.  Persistent  refusal  to 
have  reasonable  matrimonial  intercourse  as  husband  and  wife, 
when  health  or  physical  condition  does  not  make  such  refusal 
reasonably  necessary,  or  the  refusal  of  either  party  to  dwell 
in  the  same  house  with  the  other  party,  when  there  is  no  just 
cause  for  such  refusal,  is  desertion. 

Legislation  §  96.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  4th  ed.,  §  777,  and  note;  Morrison  v.  Morrison,  20 
Cal.  231;  the  code  commissioners  saying,  "Sub.  1  is  intended  to  settle 
a  question  stated  as  doubtful  in  Bishop  on  Marriage  and  Divorce,  4th 
ed.,  778-782.  It  reaches  a  class  of  cases  not  covered  by  the  second 
subdivision.  The  term  'matrimonial  intercourse'  is  used  as  a  more 
agreeable  expression  than  'sexual  intercourse,'  both  having  the  same 
legal  significance,  according  to  authorities  cited  in  note  1,  §  777,  of  the 
work  above  cited.  Use  of  the  word  cohabited  is  avoided  for  its  uncer- 
tainties: See  same  work." 

§  97.  In  case  of  stratagem  or  fraud,  who  commits  desertion. 
When  one  party  is  induced,  by  the  stratagem  or  fraud  of  the 
other  party,  to  leave  the  family  dwelling-place,  or  to  be  absent, 
and  during  such  absence  the  offending  party  departs  with 
intent  to  desert  the  other,  it  is  desertion  by  the  party  commit- 
ting the  stratagem  or  fraud,  and  not  by  the  other. 

Legislation  §  97.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  §  784. 

§98.  In  case  of  cruelty,  where  one  party  leaves  the  other, 
who  commits  desertion.  Departure  or  absence  of  one  party 
from  the  family  dwelling-place,  caused  by  cruelty  or  by 
threats  of  bodily  harm  from  which  danger  would  be  reasonably 
apprehended  from  the  other,  is  not  desertion  by  the  absent 
party,  but  it  is  desertion  by  the  other  party. 

Legislation  §  98.  Enacted  March  21,  1872;  the  code  commissioners 
saying,  "This  section  is  intended  to  settle  a  question  discussed  as  doubt- 
ful in  Bishop  on  Marriage  and  Divorce,  §§  7S7,  791,  794." 

§  99.     Separation  by  consent  not  desertion.     Separation  by 
^,onsent,  with   or  without  the  understanding  that  one  of  the 
parties  will  apply  for  a  divorce,  is  not  desertion. 
Consent  revocable:  See  post,  §  101. 

Legislation  §  99.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  4th  ed.,  §  783. 

§  100.  Absence  becomes  desertion,  when.  Absence  or  sepa- 
ration, proper  in  itself,  becomes  desertion  whenever  the  intent 
to  desert  is  fixed  during  such  absence  or  separation.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-7-1,  p.  189.] 

Legislation  §  100.  1.  Enacted  March  21,  1872  (based  on  Bishop  on 
Marriage  and  Divorce,  4th  ed.,  §784),  and  then  read:  "The  separation 
and  intent  to   desert  are  not  always  coincident.     Temporary   absence 


39  DISSOLUTION   OF   MARRIAGE.  §  lOo 

or  separation,  proper  in  itself,  may  be  converted  into  desertion  when- 
ever the  intent  to  desert  is  fixed  during  such  absence  or  separation." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  189. 

§  101.  Consent  to  separate  revocable.  Consent  to  a  separa- 
tion is  a  revocable  act,  and  if  one  of  the  parties  afterwards, 
in  good  faith,  seeks  a  reconciliation  and  restoration,  but  the 
other  refuses  it,  such  refusal  is  desertion. 

Legislation  §  101.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  §  786. 

§  102.  Desertion,  how  cured.  Effect  of  refusing  condona- 
tion. If  one  party  deserts  the  other,  and  before  the  expiration 
of  the  statutory  period  required  to  make  the  desertion  a  cause 
of  divorce,  returns  and  offers  in  good  faith  to  fulfill  the  mar- 
riage contract,  and  solicits  condonation,  the  desertion  is  cured. 
If  the  other  party  refuse  such  offer  and  condonation,  the 
refusal  shall  be  deemed  and  treated  as  desertion  by  such  party 
from  the  time  of  refusal.  [Amendment  approved  1874;  Code 
Amdts.  1873^74,  p.  190.] 

Legislation  §  102.  1.  Enacted  March  21,  1872  (based  on  Bishop  on 
Marriage  and  Divorce,  §  786;  Benkert  v.  Benkert,  32  Cal.  467),  and  then 
read:  "If  one  party  deserts  the  other,  and  before  the  expiration  of 
the  statutory  period  required  to  make  the  desertion  complete,  truly 
repents,  returns,  and  offers,  in  good  faith,  to  fulfill  the  marriage  con- 
tract, and  solicits  condonation,  the  desertion  is  cured.  If  the  other 
party  refuses  such  offer  and  condonation,  it  is  desertion  by  such  party 
from  the  time  of  refusal." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  190. 

§  103.  Wife  must  abide  by  husband's  selection  of  home,  or 
it  is  desertion  on  her  part.  The  husband  may  choose  any  rea- 
sonable place  or  mode  of  living,  and  if  the  wife  does  not  con- 
form thereto,  it  is  desertion. 

Same  principle:  Post,  §  156. 

Separate  domicile  for  purposes  of  divorce  proceeding:  See  post,  §  129. 

Legislation  §  103.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  §  788;  Field's  Draft,  N.  Y.  Civ.  Code,  §§  75,  76; 
Hardenburg  v.  Hardenburg,  14  Cal.  654. 

§  104.  If  the  place  is  unfit,  and  wife  refuses  to  conform,  it 
is  desertion  by  the  husband.  If  the  place  or  mode  of  living 
selected  by  the  husband  is  unreasonable  and  grossly  unfit,  and 
the  wife  does  not  conform  thereto,  it  is  desertion  on  the  part 
of  the  husband  from  the  time  her  reasonable  objections  are 
made  known  to  him. 

Legislation  §  104.     Enacted  March  21,  1872. 

§  105.  Willful  neglect,  what.  Willful  neglect  is  the  neglect 
of  the  husband  to  provide  for  his  wife  the  common  necessaries 


§  107  Civil  code.  40 

of  life,  he  having  the  ability  to  do  so ;  or  it  is  the  failure  to  do 
so  by  reason  of  idleness,  protiigaey,  or  dissipation. 

Duration  of  neglect:  See  post,  §  107. 

Legislation  §  105.  Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  291. 

§  106.  Habitual  intemperance,  what.  Habitual  intemper- 
ance is  that  degree  of  intemperance  from  the  use  of  intoxicat- 
ing drinks  which  disqualifies  the  person  a  great  portion  of 
the  time  from  properly  attending  to  business,  or  which  would 
reasonably  intlict  a  course  of  great  mental  anguish  upon 
the  innocent  party. 

Duration  of  intemperance:  See  post,  §  107. 

Legislation  §  106.  1.  Enacted  March  21,  1872;  based  on  Stats.  1851, 
p.  186;  Stats.  1869-70,  p.  291;  Mahone  v.  Mahone,  19  Cal.  626;  Bishop 
on  Marriage  and  Divorce,  4th  ed.,  §  813;  the  code  commissioners  say- 
ing, "The  last  clause  of  the  section  is  new.  It  speaks  for  itself.  The 
presence  of  an  habitual  drunkard  at  home,  casting  reproaches  and  in- 
dignities upon  his  wife,  ought  to  be  a  better  cause  of  divorce  than 
being  drunk  at  his  place  of  business.'" 

2.  Amendment  by  Stats.  1901,  p.  337;  unconstitutional.  See  note, 
§  4,  ante. 

§  107.    Habitual  intemperance,  etc.,  for  one  year.     Willful 
desertion,  willful  neglect,  or  habitual  intemperance  must  con- 
tinue for  one  year  before  either  is  a  ground  for  divorce. 
Legislation  §  107.     Enacted  March  21,  1872. 

ARTICLE  III. 

Causes    for    Denying    Divorce. 

§  111.  Divorces  denied,  on  showing  what. 

§  112.  Connivance,  what. 

§  113.  Corrupt  consent,  how  manifested. 

§  114.  Collusion,  what. 

§  115.  Condonation,  what. 

§  116.  Eequisites  to  condonation. 

§  117.  Condonation  implies  what. 

§  118.  Evidence   of  condonation. 

§  119.  •  Condonation.     Can  only  be  made  when. 

§  120.  Concealment  of  facts  in  certain  cases  makes  condonation  void. 

§  121.  Condonation,  how  revoked. 

§  122.  Recrimination,  what. 

§  123.  Condonation.     When  to  bar  defense. 

§  124.  Divorce,  when  denied. 

§  125.  Lapse  of  time  establishes  certain  presumptions. 

§  126.  Presumptions  may  be  rebutted. 

§  127.  Limitation  of  time. 

§  128.  Residence  of  plaintiff  and  cross-complainant  in  action  for  divorce. 

§  129.  Proof  of  actual  residence  required.     Presumptions  do  not  apply. 

§  130.  Divorces  not  to  be  granted  by  default,  etc. 

§  131.  Court  must  file  decision  in  divorce  cases.     Interlocutory  judgment. 

§  132.  Final  judgment,  after  one  year. 


41  CAUSES  FOR  DENYING  DIVORCE.  §  116 

§  111.  Divorces  denied,  on  showing  what.  Divorces  must 
be  denied  upon  showing : 

1.  Connivance ;  or, 

2.  Collusion ;  or, 

3.  Condonation;  or, 

4.  Recrimination;   or, 

5.  Limitation  and  lapse  of  time. 

Connivance:  Post,  §§  112  et  seq. 
Collusion:  Post,  §  114. 
Condonation:  Post,  §§  115  et  seq. 
Recrimination:  Post,  §§122  et  seq. 
Limitation,  and  lapse  of  time:  Post,  §§  124  et  seq. 
Legislation  §  111.     Enacted    March    21,    1872;    based    on    Bishop    on 
Marriage  and  Divorce,  §§  28,  36,  74. 

§  112.  Connivance,  what.  Connivance  is  the  corrupt  con- 
sent of  one  party  to  the  commission  of  the  acts  of  the  other, 
constituting  the  cause  of  divorce. 

Legislation  §  112.     Enacted    March    21,    1872;    based   on    Bishop    on 

Marriage  and  Divorce,  4th  ed.,  §  5. 

§  113.     Corrupt  consent,  how  manifested.     Corrupt  consent 

is  manifested  by  passive  permission,  with  intent  to  connive  at 

or  actively  procure  the  commission  of  the  acts  complained  of. 

Legislation  §  113.     Enacted    March    21,    1872;    based    on    Bishop    on 

Marriage  and  Divorce,  4th  ed.,  §  6. 

§  114.  Collusion,  what.  Collusion  is  an  agreement  between 
husband  and  wife  that  one  of  them  shall  commit,  or  appear 
to  have  committed,  or  to  be  represented  in  court  as  having 
committed,  acts  constituting  a  cause  of  divorce,  for  the  i)ur- 
pose  of  enabling  the  other  to  obtain  a  divorce. 

Legislation  §  114.     Enacted    March    21.    1872;    based    on    Bishop    on 

Marriage  and  Divorce,  4th  ed.,  §  28. 

§  115.  Condonation,  what.  Condonation  is  the  conditional 
forgiveness  of  a  matrimonial  offense  constituting  a  cause  of 
divorce. 

Revoking  condonation:  Post,  §  121. 
Condonation  a  recriminatory  defense:  Post,  §  123. 
Legislation  §  115.     Enacted   March    21,   1872;    based    on    Benkert    v. 
Benkert,  32  Cal.  467. 

§116.  Requisites  to  condonation.  The  following  require- 
ments are  necessary  to  condonation : 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts 
constituting  the  cause  of  divorce; 

2.  Reconciliation  and  remission  of  the  offense  by  the  injured 
party ; 

3.  Restoration  of  the  offending  party  to  all  marital  rights. 


§  120  CIVIL   CODE.  42 

Legislation  §  116.     Enacted    March    21,    1872;    based    on    Bishop    on 
Marriage  and  Divorce,  §§  53,  71. 

§  117.  Condonation  implies  what.  Condonation  implies  a 
condition  subsequent ;  that  the  forgiving  party  must  be  treated 
with  conjugal  kindness. 

Legislation  §  117.     Enacted    March    21,    1872;    based    on    Bishop    on 

Marriage  and  Divorce,  §§  53,  71. 

§  118.  Evidence  of  condonation.  Where  the  cause  of 
divorce  consists  of  a  course  of  offensive  conduct,  or  arises,  in 
cases  of  cruelty,  from  excessive  acts  of  ill-treatment  which 
may,  aggregately,  constitute  the  offense,  cohabitation,  or  pas- 
sive endurance,  or  conjugal  kindness,  shall  not  be  evidence  of 
condonation  of  any  of  the  acts  constituting  such  cause,  unless 
accompanied  by  an  express  agreement  to  condone.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  190.] 

Legislation  §  118.  1.  Enacted  March  21,  1872  (based  on  Bishop  on 
Marriage  and  Divorce,  4th  ed.,  §  50),  and  then  read:  "Where  the  cause 
of  divorce  consists  of  a  course  of  offensive  conduct  coveiing  the  pre- 
scribed statutory  period,  or  arising,  in  case  of  cruelty,  from  successive 
acts  of  ill  treatment  which  may,  aggregately,  constitute  the  offense, 
cohabitation,  or  passive  endurance,  or  conjugal  kindness  shall  not  be 
evidence  of  condonation  of  any  part  of  the  facts  or  period  constituting 
such  causes,  unless  accompanied  by  an  express  agreement  to  condone." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  190. 

§  119.  Condonation.  Can  only  be  made  when.  In  cases 
mentioned  in  the  last  section,  condonation  can  be  made  only 
after  the  cause  of  divorce  has  become  complete,  as  to  the  acts 
complained  of.  [Amendment  approved  1874 ;  Code  Amdts. 
1873-74,  p.  190.] 

Legislation  §  119.  1.  Enacted  March  21,  1872  (based  on  Bishop  on 
Marriage  and  Divorce,  4th  ed.,  §  63),  and  then  read:  "In  cases  men- 
tioned in  the  last  section,  only  after  the  cause  of  divorce  has  become 
complete,  as  to  the  acts  complained  of  and  the  period  of  their  continu- 
ance, can  condonation  be  made.  Even  then,  further  efforts  to  live 
with  and  reform  the  offending  party  must  not,  unsupported  by  an 
express  agreement  of  condonation  -made  without  undue  influence,  be 
construed  as  evidence  of  condonation."  The  code  commissioners  say: 
"  'Though  such  party  might  be  willing  to  give  the  other  a  fair  trial 
of  future  matrimonial  fidelity,  if  sure  of  retaining  his  remedy,'  yet 
would  not,  if  the  remedy  was  in  danger  of  being  lost  in  such  trial." 
2.  Amended  by  Code"  Amdts.  1873-74,  p.  190. 

§  120.  Concealment  of  facts  in  certain  cases  makes  condona- 
tion void.  A  fraudulent  concealment  by  the  condouee  of  facts 
constituting  a  dift'erent  cause  of  divorce  from  the  one  con- 
doned, and  existing  at  the  time  of  condonation,  avoids  such 
condonation. 

Legislation  §  120.     Enacted    March    21,    1872;    based    on    Bishop    on 

Marriage    and    Divorce.   4th   ed.,  §§  65,   66;    Dempster   v.   Dempster,    2 

Swab.  &  T.  438,  444. 


43  CAUSES  FOR  DENYING  DIVORCE.  §  123 

§  121.  Condonation,  how  revoked.  Condonation  is  revoked 
and  the  original  cause  of  divorce  revived : 

1.  When  the  condonee  commits  acts  constituting  a  like  or 
other  cause  of  divorce ;  or, 

2.  When  the  condonee  is  guilty  of  great  conjugal  unkind- 
ness,  not  amounting  to  a  cause  of  divorce,  but  sufficiently 
habitual  and  gross  to  show  that  the  conditions  of  condonation 
had  not  been  accepted  in  good  faith,  or  not  fulfilled. 

Legislation  §  121.  Enacted  March  21,  1872;  based  on  Palmer  v. 
Palmer,  2  Swab.  &  T.  61,  62;  Bishop  on  Marriage  and  Divorce,  §§  53, 
64;  the  code  commissioners  saying,  "As  to  subd.  2,  Mr.  Bishop,  above 
cited,  says,  'The  diflferenee  of  opinion  among  judges  and  lawyers  relate 
to  the  latter  [this]  branch  of  the  proposition.'  It  is  best  to  settle  the 
question." 

§  122.  Recrimination,  what.  Recrimination  is  a  showing  by 
the  defendant  of  any  cause  of  divorce  against  the  plaintiff,  in 
bar  of  the  plaintiff's  cause  of  divorce. 

Legislation  §  122.  Enacted  March  21,  1872;  based  on  2  Bishop  on 
Marriage  and  Divorce,  §  75;  the  code  commissioners  saying,  "This 
simple  section  settles  many  conflicting  points  arising  from  the  practice 
of  leaving  with  the  courts  a  wide  discretion  as  to  what  degree  of  bad 
conduct  or  what  degree  of  proof  of  causes  of  divorce  shall  be  required 
when  they  are  shown  in  recrimination,  or  whether  unlike  causes  of 
divorce  can  be  so  shown." 

§  123.  Condonation.  When  to  bar  defense.  Condonation 
of  a  cause  of  divorce,  shown  in  the  answer  as  a  recriminatory 
defense,  is  a  bar  to  such  defense,  unless  the  condonation  be 
revoked,  as  provided  in  section  one  hundred  and  twenty-one, 
or  two  years  have  elapsed  after  the  condonation,  and  before 
the  accruing  or  completion  of  the  cause  of  divorce  against 
which  the  recrimination  is  shown.  [Amendment  approved 
1874;  Code  Amdts.  1878-74,  p.  190.] 

Legislation  §  123.  1.  Enacted  March  21,  1872  (based  on  Bishop  on 
Marriage  and  Divorce,  §§  97-100),  and  then  read:  "Condonation  of  a 
cause  of  divorce  shown  in  the  answer  as  a  recriminatory  defense  is  a 
bar  to  such  defense  when  the  condonee  has  fully  performed  the  marital 
duties,  and  is  without  reproach  since  the  condonation,  or  if  three  years 
or  more  have  elapsed  after  the  condonation,  and  before  the  accruing 
or  completion  of  the  cause  of  divorce  against  which  the  recrimination 
is  shown."  The  code  commissioners  say:  "The  difficulty  of  this  sub- 
ject will  be  better  comprehended  by  reading  th<"  y,ections  above  cited. 
It  would  seem  better  to  have  some  rule,  even  if  it  sometimes  works  a 
hardship,  than  to  have  confusion  arising  from  deciding  each  case  upon 
its  own  merits." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  190. 

3.  Amendment  by  Stats.  1901,  p.  337;  unconstitutional.  See  note, 
§  4,  ante. 


§  128  CIVIL   CODE.  44 

§  124.     Divorce,  w^hen  denied.     A  divorce  must  be  denied : 
One.     Wlien  the  cause  is  adultery  and  the  action  is  not  com- 
menced within  tvf-o  years  after  the  commission  of  the  act  of 
adultery,  or  after  its  discovery  by  the  injured  party;  or, 

Two.  When  the  cause  is  conviction  of  felony,  and  the  action 
is  not  commenced  before  the  expiration  of  two  years  after  a 
pardon,  or  the  termination  of  the  period  of  sentence. 

Three.     In  all  other  cases  when  there  is  an  unreasonable 
lapse    of    time    before    the    commencement    of    the    action. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  191.] 
Legislation  §  124.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  191,  (1)  in  subd.  1,  chan- 
ging "five  years"  to  "two  years";  (2)  in  subd.  2,  changing  "one  year" 
to  "two  years";  and  (3)  in  subd.  3,  omitting  "after  the  commission  of 
the  offense  and,"  after  "lapse  of  time." 

§  125.  Lapse  of  time  establishes  certain  presumptions.  Un- 
reasonable lapse  of  time  is  such  a  delay  in  commencing  the 
action  as  establishes  the  presiimption  that  there  has  been  con- 
nivance, collusion,  or  condonation  of  the  offense,  or  full  acqui- 
escence in  the  same,  with  intent  to  continue  the  marriage  rela- 
tion notwithstanding  the  commission  of  such  offense. 

Legislation  §  125.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  4th  ed.,  §  108. 

§  126.  Presumptions  may  be  rebutted.  The  presumptions 
arising  from  lapse  of  time  may  be  rebutted  by  showing  reason- 
able grounds  for  the  delay  in  commencing  the  action. 

Legislation  §  126.  Enacted  March  21,  1872;  based  on  Bishop  on  Mar- 
riage and  Divorce,  4th  ed.,  §  106. 

§  127.     Limitation  of  time.     There  are  no  limitations  of  time 
for  commencing  actions  for  divorce,  except  such  as  are  con- 
tained in  section  one  hundred  and  tAventy-four. 
Legislation  §  127.     Enacted  March  21,  1872. 

§  128.  Residence  of  plaintiff  and  cross-complainant  in  action 
for  divorce.  A  divorce  must  not  be  granted  unless  the  plain- 
tiff has  been  a  resident  of  the  state  one  year,  and  of  the  county 
in  which  the  action  is  brought  three  months,  next  preceding  the 
commencement  of  the  action;  provided,  that  a  cross-complain- 
ant in  an  action  for  divorce  need  not  be  or  have  been  a 
resident  of  the  state  or  of  the  county  in  which  the  action  is 
brought  or  pending  in  order  to  entitle  such  cross-complainant 
to  a  divorce  in  said  action;  and  provided,  further,  that  in  an 
action  for  divorce  a  cross-complainant  must  personally  verify 
the  cross-complaint.  [Amendment  approved  1911;  Stats.  1911, 
p.  686.] 


45  CAUSES  FOR  DENYING  DIVORCE.  §  131 

Legislation  §  128.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Stats.  1891,  p.  52,  (1)  substituting  "one  year"  for 
"six  months";  and  (2)  inserting  "and  of  the  county  in  which  the  action 
is  brought  three  months." 

3.  Amended  by  Stats.  1911,  p.  G8G.  The  change  in  1911  consisted  in 
the  addition  of  the  proviso. 

.  §  129.  Proof  of  actual  residence  required.  Presumptions 
do  not  apply.  In  actions  for  divorce  the  presumption  of  law, 
that  the  domicile  of  the  husband  is  the  domicile  of  the  wife, 
does  not  apply.  After  separation,  each  may  have  a  separate 
domicile,  depending  for  proof  upon  actual  residence,  and  not 
upon  legal  presumptions. 

Legislation  §  129.     Enacted   March   21,    1872;    based   on   Kashaw   v. 

Kashaw,  3   Cal..  312;  Field's  Draft,  N.  Y.  Civ.  Code,  §  711;  Bishop  on 

Marriage  and  Divorce,  §§  124-131. 

§130,    Divorces   not   to  be   granted   by   default,   etc.     No 

divorce  can  be  granted  upon  the  default  of  the  defendant  or 
upon  the  uncorroborated  statement,  admission,  or  testimony 
of  the  parties,  or  upon  any  statement  or  finding  of  fact  made 
by  a  referee ;  but  the  court  must,  in  addition  to  any  statement 
or  finding  of  the  referee,  require  proof  of  the  facts  alleged,  and 
such  proof,  if  not  taken  before  the  court,  must  be  upon  written 
questions  and  answers.  [Amendment  approved  187-1;  Code 
Amdts.  1873-74,  p.  191.] 

Confession  of  adultery  not  sufficient  to  justify  divorce:  See  Code  Civ. 
Proc,  §  2079. 

Legislation  §  130.  1.  Enacted  March  21,  1872,  and  then  read:  "No 
divorce  must  be  granted  upon  the  default  of  the  defendant,  or  upon 
the  statement,  admission,  or  uncorroborated  testimony  of  the  parties, 
or  upon  any  statement  or  finding  of  fact  made  by  a  referee,  but  the 
court  must  require  proof  of  the  facts  alleged,  which  proof,  if  taken 
before  a  referee,  must  be  upon  written  questions  and  answers." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  191. 

§  131.  Court  must  file  decision  in  divorce  cases.  Interlocu- 
tory judgment.  In  actions  for  divorce,  the  court  must  file  its 
decision  and  conclusions  of  law  as  in  other  cases,  and  if  it  de- 
termines that  no  divorce  shall  be  granted,  final  judgment  must 
thereupon  be  entered  accordingly.  If  it  determines  that  the 
divorce  ought  to  be  granted,  an  interlocutory  judgment  must 
be  entered,  declaring  that  the  party  in  whose  favor  the  court 
decides  is  entitled  to  a  divorce.  After  the  entry  of  the  inter- 
locutory judgment,  neither  party  shall  have  the  right  to  dis- 
miss the  action  without  the  consent  of  the  other.  [Amend- 
ment approved  1915 ;  Stats.  1915,  p.  209.] 

Legislation  §  131.     1.  Added  by  Stats.  1903,  p.  75. 

2.  Amended  by  Stats.  1909,  p.  941  to  read:  "In  actions  for  divorce, 
the  court  must  file  its  decision  and  conclusions  of  law  as  in  other  cases, 
and  if  it  determines  that  no  divorce  shall  be  granted,  final  judgment 


§  136  CIVIL   CODE.  46 

must  thereupon  be  entered  accordingly.  If  it  determines  that  the 
divorce  ought  to  be  granted,  an  interlocutory  judgment  must  be  en- 
tered, declaring  that  the  party  in  whose  favor  the  court  decides  is 
entitled  to  a  divorce,  and  from  such  interlocutory  judgment  an  appeal 
may  be  taken  within  six  months  after  its  entry,  in  the  same  manner 
and  with  like  effect  as  if  the  judgment  were  final.  After  the  entry  of 
the  interlocutory  judgment,  neither  party  shall  have  the  right  to  dis- 
miss the  action  withoait  the  consent  of  the  other." 
3.  Amended  by  Stats.  1915,  p.  209. 

§  132.  Final  judgment,  after  one  year.  When  one  year  has 
expired  after  the  entry  of  such  interlocutory  judgment,  the 
court  on  motion  of  either  party,  or  upon  its  own  motion,  may 
enter  the  final  judgment  granting  the  divorce,  and  such  final 
judgment  shall  restore  them  to  the  status  of.  single  persons, 
and  permit  either  to  marry  after  the  entry  thereof;  and  such 
other  and  further  relief  as  may  be  necessary  to  complete  dis- 
position of  the  action,  but  if  any  appeal  is  taken  from  the 
interlocutory  judgment  or  motion  for  a  new  trial  made,  final 
judgment  shall  not  be  entered  until  such  motion  or  appeal  has 
been  finally  disposed  of,  nor  then,  if  the  motion  has  been 
granted  or  judgment  reversed.  The  death  of  either  party 
after  the  entry  of  the  interlocutory  judgment  does  not  impair 
the  power  of  the  court  to  enter  final  judgment  as  hereinbefore 
provided ;  but  such  entry  shall  not  validate  any  marriage  con- 
tracted by  either  party  before  the  entry  of  such  final  judg- 
ment, nor  constitute  any  defense  of  any  criminal  prosecution 
made  against  either. 

Legislation  §  132.     Added  by  Stats.  1903,  p.  76. 

ARTICLE  IV. 
General    Provisions. 

§  136.     Divorce.     Maintenance  by  husband  wh'ere  judgment  is  denied. 

§  137.     Alimony  pending  suit  for  divorce.     Permanent  support. 

§  138.     Custody  and  maintenance  of  minors  during  actions  for  divorce. 

§  139.     Support  of  wife  and  children  on  divorce  or  separation  granted  to 
wife. 
'  §  140.     Security  for  maintenance  and  alimony. 

§  141.     Court  shall  resort  to  what,  in  executing  certain  sections. 

§  142.     If  wife  has  sufficient  for  her  support,  court  may  withhold  allow- 
ance. 

§  143.     Community   and  separate  property  may  be  subjected  to  support 
and  educate  children. 

§  144.     Legitimacy  of  issue. 

§  145.     Same. 

§  146.     Disposition  of  community  property  on  divorce. 

§  147.     Same. 

§  148.     Such  an  action  subject  to  revision  on  appeal. 

§  136.    Divorce.    Maintenance  by  husband  where  judgment 

is  denied.     Though  judgment  of  divorce  is  denied,  the  court 
may,  in  an  action  for  divorce,  provide  for  the  maintenance  by 


137.  Alimony  Pending  Suit  for  Divorce;  Permanent  Support 
and  Maintenance.  When  an  action  for  divorce  is  pending,  the 
court  may,  in  its  discretion,  require  the  husband  to  pay  as  ali- 
mony any  money  necessary  to  enable  the  wife  to  support  her- 
self and  her  oiiildren,  or  to  prosecute  or  defend  the  action. 
When  the  liusband  wilfullj'  deserts  the  wife  or  when  the  hus- 
band wilfully  fails  to  provide  for  the  wife  or  when  the  wife  has 
any  cause  of  action  for  divorce  as  provided  in  section  ninety- 
two  of  this  code,  she  may,  without  applying  for  divorce,  main- 
tain in  the  superior-  court  an  action  against  him  for  permanent 
support  and  maintenance  of  herself  or  of  herself  and  childien. 
During  the  pendency  of  such  action  the  court  may,  in  its  discre- 
tion, require  the  husband  to  pay  as  alimony  any  money  neces- 
.sary  for  the  prosecution  of  the  action  and  for  support  and  main- 
tenance, and  execution  may  issue  therefor  in  the  discretion  of 
the  court.  [The  court,  in  granting  the  wife  permanent  support 
and  maintenance  of  herself,  or  of  herself  and  children,  In  any 
such  action,  shall  make  the  same  disposition  of  the  community 
property  and  of  the  homestead,  if  any,  as  would  have  been 
made  if  the  marriage  had  been  dissolved  by  the  decree  of  a 
court  of  competent  jurisdiction.]  The  final  judgment  in  such 
action  may  be  enforced  by  the  court  by  s/uch  order  or  orders 
as  in  its  discretion  it  may  fi'om  time  to  time  deem  necessary, 
and  such  order  or  orders  may  be  varied,  altered,  or  revoked  at 
the  discretion  of  the  court.  (In  effect  90  days  from  and  after 
April   27,    1917.     Stats.    1917,   Chap.    36.)  Civ.    Cade,    1917. 


47  GENERAL  PROVISIONS  RELATING  TO  DIVORCE.  §  137 

the  husband,  of  the  wife  and  children  of  the  marriage,  or  any 
of  them.     [Amendment  approved  1905;  Stats.  1905,  p.  634.] 
Alimony  generally:   See  post,  §  137. 

Legislation  §  136.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  68),  and  then  read:  "Though  judgment  of  divorce  is 
denied,  the  court  may,  in  an  action  for  divorce,  provide  for  the  mainte- 
nance of  the  wife  and  her  children,  or  any  of  them,  by  the  husband." 

2.  Amendment  by  Stats.  1901,  p.  337;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  634. 

§  137.  Alimony  pending-  suit  for  divorce.  Permanent  sup- 
port. When  an  action  for  divorce  is  pending,  the  court  may, 
in  its  discretion,  require  the  husband  to  pay  as  alimony  any 
money  necessary  to  enable  the  wife  to  support  herself  and  her 
children,  or  to  prosecute  or  defend  the  action.  When  the  hus- 
band willfully  deserts  the  wife  or  when  the  husband  willfully 
fails  to  provide  for  the  wife  or  when  the  wife  has  any  cause 
of  action  for  divorce  as  provided  in  section  ninety-two  of  this 
code,  she  may,  without  applying  for  a  divorce,  maintain  in  the 
superior  court  an  action  against  him  for  permanent  support 
and  maintenance  of  herself  or  of  herself  and  children.  Dur- 
ing the  pendency  of  such  action  the  court  may,  in  its  discre- 
tion, require  the  husband  to  pay  as  alimony  any  money  neces- 
sary for  the  prosecution  of  the  action  and  for  support  and 
maintenance,  and  execution  may  issue  therefor  in  the  discre- 
tion of  the  court.  The  final  judgment  in  such  action  may  be 
enforced  by  the  court  by  such  order  or  orders  as  in  its  discre- 
tion it  may  from  time  to  time  deem  necessary,  and  such  order 
or  orders  may  be  varied,  altered,  or  revoked  at  the  discretion 
of  the  court.     [Amendment  approved  1907 ;  Stats.  1907,  p.  82.] 

Legislation  §  137.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  71),  and  then  read:  "While  an  action  for  divorce  is 
pending  the  court  may,  in  its  discretion,  require  the  husband  to  pay 
as  alimony  any  money  necessary  to  enable  the  wife  to  support  herself 
or  her  children,  or  to  prosecute  or  defend  the  action." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  76,  adding,  "When  the  hus- 
band willfully  deserts  the  wife  she  may,  without  applying  for  a  di- 
vorce, maintain  in  the  district  court  an  action  against  him  for  perma- 
nent support  and  maintenance  of  herself,  or  of  herself  and  children. 
During  the  pendency  of  such  action,  the  court  may,  in  its  discretion, 
require  the  husband  to  pay,  as  alimony,  any  money  necessary  for  the 
prosecution  of  the  action,  and  for  support  and  maintenance.  The  final 
judgment  in  such  action  may  be  enforced  by  the  court  by  such  order 
or  orders  as  in  its  discretion  it  may,  from  time  to  time,  deem  neces- 
sary, and  such  order  or  orders  may  be  varied,  altered,  or  revoked  at 
the  discretion  of  the  court." 

3.  Amended  by  Code  Amdts.  1880,  p.  4,  (1)  substituting  (a)  "When" 
for  "While,"  as  first  word  of  section,  and  (b)  "superior  court"  for  "dis- 
trict court";  and  (2)  inserting  "and  executions  may  issue  therefor,  in 
the  discretion  of  the  court,"  after  "maintenance." 


§  140  CIVIL  CODE.  48 

i.  Ameudment  by  Stats.  1901,  p.  337;  unconstitutional.  See  note, 
§  i,  ante. 

5.  Amended  by  Stats.  1905,  p.  205,  substituting  (1)  "and"  for  "or" 
before  "her  children,"  (2)  "When  the  wife  has  any  cause  of  action 
for  divorce  as  provided  in  section  ninety-two  of  this  code"  for  "When 
the  husband  willfully  deserts  the  wife,"  and  (3)  "execution"  for 
"executions." 

6.  Amended  by  Stats.  1907,  p.  82,  inserting  at  beginning  of  second 
sentence,  "When  the  husband  willfully  deserts  the  wife  or  when  the 
husband  willfully  fails  to  provide  for  the  wife  or." 

§  138.  Custody  and  maintenance  of  minors  during  actions 
for  divorce.  In  actions  for  divorce  the  court  may,  during  the 
pendency  of  the  action,  or  at  the  linal  hearing  or  at  any  time 
tliereat'ter  during  the  minority  of  any  of  the  children  of  the 
marriage,  make  sucli  order  for  the  custody,  care,  education, 
maintenance  and  support  of  sucli  minor  children  as  may  seem 
necessary  or  proper,  and  may  at  any  time  modify  or  vacate 
the  same.     [Amendment  approved  1905;  ^stats.  1905,  p.  43.] 

Exclusive  control  of  child,  without  divorce:   Post,  §§  199,  214. 

Awarding  custody  of  child.  Considerations  that  should  guide  the 
court:   See  post,  §  2i6. 

Custody  when  parents  separated:   See  post,  §  214. 

Legislation  §  138.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  72),  and  then  read:  "In  an  action  for  divorce  the  court 
may,  before  or  after  judgment,  give  such  direction  for  the  custody, 
care,  and  education  of  the  children  of  the  marriage  as  may  seem  neces- 
sary or  proper,  and  may  at  any  time  vacate  or  modify  the  same." 

2.  Amended  by  Stats.  1905,  p.  43. 

§  139.  Support  of  virif e  and  children  on  divorce  or  separa- 
tion granted  to  wife.  Where  a  divorce  is  granted  for  an  of- 
fense of  the  husband,  the  court  may  compel  him  to  provide 
for  the  maintenance  of  the  children  of  the  marriage,  and  to 
make  such  suitable  allowance  to  the  wife  for  her  support, 
during  her  life,  or  for  a  shorter  period,  as  the  court  may  deem 
just,  having  regard  to  the  circumstances  of  the  parties  respec- 
tively; and  the  court  may,  from  time  to  time,  modify  its  orders 
in  these  respects. 

Compare  with  §  148,  post. 

Legislation  §  139.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  73. 

§  140.  Security  for  maintenance  and  alimony.  The  court 
may  require  the  husband  to  give  reasonable  security  for  pro- 
viding maintenance  or  making  any  payments  required  under 
the  provisions  of  this  chapter,  and  may  enforce  the  same  by 
the  appointment  of  a  receiver,  or  by  any  other  remedy  applica- 
ble to  the  case. 

Legislation  §  140.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y'.  Civ.  Code,  §  74. 


49  GENERAL  PROVISIONS  RELATING  TO  DIVORCE.  §  146 

§  141.  Court  shall  resort  to  what,  in  executing  certain  sec- 
tions. In  executing  the  five  preceding  sections  the  court  must 
resort :    • 

1.  To  the  community  property;  then, 

2.  To  the  separate  property  of  the  husband. 
Legislation  §  141.     Enacted  March  21,  1872. 

§  142.  If  wife  has  sufficient  for  her  support,  court  may  with- 
hold allowance.  When  the  wife  has  either  a  separate  estate, 
or  there  is  community  property  sufficient  to  give  her  alimony 
or  a  proper  support,  the  court,  in  its  discretion,  may  withhold 
any  allowance  to  her  out  of  the  separate  property  of  the  hus- 
band. 

Legislation  §  142.     Enacted  March  21,  1872. 

§  143.  Community  and  separate  property  may  be  subjected 
to  support  and  educate  children.  The  community  property 
and  the  separate  property  may  be  subjected  to  the  support 
and  education  of  the  children  in  such  proportions  as  the  court 
deems  just. 

Legislation  §  143.     Enacted  March  21,  1872. 

§  144.  Legitimacy  of  issue.  *  When  a  divorce  is  granted  for 
the  adultery  of  the  husband,  the  legitimacy  of  children  of  the 
marriage  begotten  of  the  wife  before  the  commencement  of 
the  action  is  not  affected. 

Legitimacy  of  children:   See,  generally,  post,  §  193.     See,  also,  post, 
§145. 

Legislation  §  144.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  62. 

2.  Repeal  by  Stats.  1901,  p.  338;  unconstitutional.     See  note,  §  4,  ante. 

§  145.  Same.  When  a  divorce  is  granted  for  the  adultery 
of  the  wife,  the  legitimacy  of  children  begotten  of  her  before 
the  commission  of  the  adultery  is  not  affected;  but  the  legiti- 
macy of  other  children  of  the  wife  may  be  determined  by  the 
court,  upon  the  evidence  in  the  case. 

Legislation  §  145.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  63. 

§  146.    Disposition  of  community  property  on  divorce.     In 

■  case  of  the  dissolution  of  the  marriage  by  the  decree  of  a 
court  of  competent  jurisdiction,  the  community  property,  and 
the  homestead,  shall  be  assigned  as  follows: 

One.  If  the  decree  be  rendered  on  the  ground  of  adultery, 
or  extreme  cruelty,  the  community  property  shall  be  assigned 
to  the  respective  parties  in  such  proportions  as  the  court,  from 
all  the  facts  of  the  case,  and  the  condition  of  the  parties,  may 
deem  just. 

Civ.  Code — 4 


§  14S  CIVIL  CODE.  ^  50 

Two.  If  the  decree  be  rendered  on  any  other  ground  than 
that  of  adultery  or  extreme  cruelty,  the  community  property 
shall  be  equally  divided  between  the  parties. 

Three.  If  a  homestead  has  been  selected  from  the  com- 
munity property,  it  may  be  assigned  to  the  innocent  party, 
either  absolutely  or  for  a  limited  period,  subject,  in  the  latter 
case,  to  the  future  disposition  of  the  court,  or  it  may,  in  the 
discretion  of  the  court,  be  divided,  or  be  sold  and  the  proceeds 
divided. 

Four.  If  a  homestead  has  been  selected  from  the  separate 
property  of  either,  it  shall  be  assigned  to  the  former  owner  of 
such  property,  subject  to  the  power  of  the  court  to  assign  it 
for  a  limited  period  to  the  innocent  party.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  191.] 
Discretion  of  court:  See  post,  §  148. 

Legislation  §  146.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  254,  §  12),  and  then  read:  "In  case  of  the  dissolution  of  the  mar- 
riage by  decree  of  any  court  of  competent  jurisdiction,  the  commu- 
nity property  must  be  equally  divided  between  the  parties;  and  the 
court  granting  the  decree  must  make  such  order  for  the  division  of  the 
community  property,  or  the  sale  and  equal  distribution  of  the  proceeds 
thereof,  as  the  nature  of  the  case  may  require." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  191. 

3.  Amendment  by  Stats.  1901,  p.  338;  unconstitutional.  See  note, 
§  4,  ante. 

§  147,  Same.  The  court,  in  rendering  a  decree  of  divorce, 
must  make  such  order  for  the  disposition  of  the  community 
property,  and  of  the  homestead,  as  in  this  chapter  provided, 
and,  whenever  necessary  for  that  purpose,  may  order  a  parti- 
tion or  sale  of  the  property  and  a  division  or  other  disposition 
of  the  proceeds.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  192.] 

Legislation  §  147.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  254,  §  12),  aud  then  read:  "When  the  decree  of  divorce  is  rendered 
on  the  ground  of  adultery  or  extreme  cruelty,  the  party  in  fault  is  only 
entitled  to  such  portion  of  the  community  property  as  the  court  grant- 
ing the  decree  may,  in  its  discretion,  from  the  facts  of  the  case,  deem 
just." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  192. 

§  148.     Such  an  action  subject  to  revision  on  appeal.     The 

disposition  of  the  community  property,  and  of  the  homestead,  as 
above  provided,  is  subject  to  revision  on  appeal  in  all  particu- 
lars, including  those  which  are  stated  to  be  in  the  discretion 
of  the  court.  [Amendment  approved  1874;  Code  Amdts. 
1873-74;  p.  192.] 

Legislation  §  148.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  254,  §  12),  and  then  read:  "The  order  for  the  disposition  of  the  com- 


51  HUSBAND  AND  WIFE.  §  156 

munity  property,  under  the  preceding  section,  is  subject  to  revision  on 
appeal  in  all  respects,  including  the  exercise  of  discretion  by  the  court 
below." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  192. 

CHAPTER  III. 

Husband  and  Wife. 

§  155.  Mutual  obligations  of  husband  and  wife. 

§  156.  Eights  of  husband,  as  head  of  family. 

§  157.  In  other  respects  their  interests  separate. 

§  158.  Husband  and  wife  may  make  contracts. 

§  159.  Husband  and  wife.     Property  relations. 

§  160.  Consideration  for  agreement  of  separation. 

§  161.  May  be  joint  tenants,  etc. 

§  162.  Separate  property  of  the  wife. 

§  163.  Separate  property  of  the  husband. 

§  164,  Community  property.     Conveyances  by  married  woman.     Limita- 
tions. 

§  165.  Inventory  of  separate  property  of  wife. 

§  166.  Filing  inventory  notice  of  wife's  title. 

§  167.  Community  property.     Contracts  by  wife. 

§  168.  Earnings  of  wife  not  liable  for  debts  of  husband. 

§  169.  Earnings  of  wife,  when  living  separate,  separate  property. 

§  170.  Liability  for  debts  of  wife  contracted  before  marriage. 

§  171.  Liability  of  separate  property  of  wife. 

§  171a.  Married  woman's  torts. 

§  172.  Management,  control,  and  disposition  of  community  property. 

§  173.  Curtesy  and  dower  not  allowed. 

§  174.  Support  of  wife.  / 

§  175.  Husband  not  liable  when  abandoned  by  wife. 

§  176.  When  wife  must  support  husband. 

§  177.  Eights  of  husband  and  wife  governed  by  what. 

§  178.  Marriage  settlement  contracts,  how  executed. 

§  179.  To  be  acknowledged  and  recorded. 

§  180.  Effect  of  recording. 

§  181,  Minors  may  make  marriage  settlements. 

§  155.  Mutual  obligations  of  husband  and  wife.  Husband 
and  wife  contract  towards  each  other  obligations  of  mutual 
respect,  fidelity,  and  support. 

Mother  aiding  in  support  of  children:  Post,  §  196. 
Wife's  support  of  husband:  See  post,  §  176. 

Husband's   support  of  wife:    See  post,  §§  174,   175;    and    ante,  §  105, 
where  the  failure  so  to  do  gives  ground  for  divorce. 

Legislation  §  155.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  75. 

§  156.     Rights  of  husband,  as  head  of  family.     The  husband 
is  the  head  of  the  family.     He  may  choose  any  reasonable  place 
or  mode  of  living,  and  the  wife  must  conform  thereto. 
Head  of  family,  for  homestead  purposes:   See  post,  §  1261. 
Parent  changing  residence  of  child:  Post,  §  213. 

Husband's  selection  of  dwelling-place.     Desertion,  if  wife  does  not 
conform  thereto:  Ante,  §  103. 


§  162  CIVIL   CODE.  52 

Legislation  §  156.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  76. 

§  157.  In  other  respects  their  interests  separate.  Neither 
husband  nor  wife  lias  any  interest  in  tlie  property  of  the  other, 
but  neither  can  be  excluded  from  the  other's  dwelling. 

Legislation  §  157.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  78. 

§  158.  Husband  and  wife  may  make  contracts.  Either  hus- 
band or  wife  may  enter  into  any  engagement  or  transaction 
with  the  other,  or  with  any  other  person,  respecting  property, 
which  either  might  if  unmarried;  subject,  in  transactions  be- 
tween themselves,  to  the  general  rules  which  control  the  ac- 
tions of  persons  occupying  confidential  relations  with  each 
other,  as  defined  by  the  title  on  trusts. 

Legislation  §  158.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  79. 

§  159.  Husband  and  wife.  Property  relations.  A  husband 
and  wife  cannot,  by  any  contract  with  each  other,  alter  their 
legal  relations,  except  as  to  property,  and  except  that  they 
may  agree,  in  writing,  to  an  immediate  separation,  and  may 
make  provision  for  the  support  of  either  of  them  and  of  their 
children  during  such  separation.  [Amendment  approved  1874 ; 
Code  Amdts.   1873-74,  p.   193.] 

Marriage  settlements:  Post,  §§  177-181.    . 

Legislation  §  159.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  254,  §§  14,  15,  22,  23;  Field's  Draft,  N.  Y.  Civ.  Code,  §  80. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  193,  inserting  "in  writing" 
after  "may  agree." 

§  160.  Consideration  for  agreement  of  separation.  The  mu- 
tual consent  of  the  parties  is  a  sufficient  consideration  for  such 
an  agreement  as  is  mentioned  in  the  last  section. 

Legislation  §  160.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  81. 

§  161.  May  be  joint  tenants,  etc.  A  husband  and  wife  may 
hold  property  as  joint  tenants,  tenants  in  common,  or  as  com- 
munity property. 

Legislation  §  161.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  82. 

2.  Amendment  by  Stats.  1901,  p.  338;  unconstitutional.  See  note, 
§  4,  ante. 

§  162.  Separate  property  of  the  wiie.  All  property  of  the 
wife,  owned  by  her  before  nuirriage,  and  that  acquired  after- 
wards by  gift,  bequest,  devise,  or  descent,  with  the  rents,  issues, 
and  profits  thereof,  is  her  separate  property.     The  wife  may, 


164.  Community  Property;  Conveyances  by  Married  Woman; 
Limitations.  All  other  property  acquired  after  marriage  by  eitlier 
husband  or  wife,  or  both,  [Including  real  property  situated  in  this 
state,  and  personal  property  wherever  situated,  acquired  while 
domiciled  elsewhere,  wiiich  would  not  have  been  the  separate 
property  of  eithier  If  acquired  while  domiciled  in  this  state,]  is 
community  property;  but  [wherever]  any  pioperty  is  conveyed  to 
a  married  woman  by  an  instrument  in  writing,  the  presumption 
is  that  the  title  is  thereby  vested  in  her  as  her  separate  property. 
And  in  case  the  conveyance  [Is]  to  such  married'  woman  and  to 
her  husband,  or  to  her  and  any  other  person,  the  presumption  is 
that  the  married  woman  takes  the  part  conveyed  to  her,  as  ten- 
ant in  common,  unless  a  different  intention  is  expressed  in  the 
in.'jtrument,  and  the  presumption  in  this  section  mentioned  is  con- 
clusive in  favor  of  a  purchaser  or  encumbrancer  in  good  faith  and 
for  a  valuable  consideration.  And  in  cases  where  married  women 
have  conveyed,  or  shall  hereafter  convey,  real  property  which 
they  acquired  prior  to  May  nineteenth,  [one  thousand  eight  hun- 
dred eighty-nine,]  the  husband,  or  their  heirs  or  assigns,  of  siuch 
married  woman,  shall  be  barred  from  commencing  or  maintaining 
any  action  to  show  that  .said  real  property  was  community  propr 
erty,  or  to  recover  said  real  property,  as  follows:  As  to  con- 
veyances heretofore  made,  from  and  after  one  year  from  the 
date  of  the  taking  effect  of  this  act;  and  as  to  conveyances  here- 
after made,  from  and  after  one  year  from  the  filing  for  record 
in  the  recorder's  office  of  such  conveyances,  resipectively.  (In 
effect  90  days  from  and  after  April  27,  1917.  Stats.  1917,  Cliap. 
nsi.)  civ.    Code,    1917. 


p 


53  HUSBAND  AND  WIFE.  §  164 

without  the  consent  of  her  husband,  convey  her  separate  prop- 
erty. 

Legislation  §  162.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  254,  §  1;  Const.  1849,  art.  xi,  §  14. 

§  163.  Separate  property  of  the  husband.  All  property 
owned  by  the  husband  before  marriage,  and  that  acquired 
afterwards  by  gift,  bequest,  devise,  or  descent,  with  the  rents, 
issues,  and  profits  thereof,  is  his  separate  property. 

Community  property:   See  definition  of  term,  post,  §  687. 

Community  property  liable  for  what  debts:  Post,  §  167. 

Husband's  conwol  over  community  property:   Post,  §  172. 

Descent  of  community  property:   Post,  §§  1401,  1402. 

Legislation  §  163.  Enacted  Maich  21,  1872;  based  on  Stats.  1850, 
p.  254,  §  1. 

§  164.  Community  property.  Conveyances  by  married 
woman.  Limitations.  All  other  property  acquired  after  mar- 
riage by  either  husband  or  wife,  or  both,  is  community  prop- 
erty; but  whenever  any  property  is  conveyed  to  a  married 
woman  by  an  instrument  in  writing,  the  presumption  is  that 
the  title  is  thereby  vested  in  her  as  her  separate  property. 
And  in  case  the  conveyance  be  to  such  married  Avoman  and  to 
her  husband,  or  to  her  and  any  other  person,  the  presumption 
is  that  the  married  woman  takes  the  part  conveyed  to  her,  as 
tenant  in  common,  unless  a  different  intention  is  expressed  in 
the  instrument,  and  the  presumption  in  this  section  mentioned 
is  conclusive  in  favor  of  a  purchaser  or  encumbrancer  in  good 
faith  and  for  a  valuable  consideration.  And  in  cases  where 
married  women  have  conveyed,  or  shall  hereafter  convey,  real 
property  which  thev  acquired  prior  to  May  nineteenth, 
eighteen  hundred  and  eighty-nine,  the  husbands,  or  their  heirs 
or  assigns,  of  such  married  women,  shall  be  barred  from  com- 
mencing or  maintaining  any  action  to  show  that  said  real 
property  was  community  property,  or  to  recover  said  real 
property,  as  folloAvs :  As  to  conveyances  heretofore  made,  from 
and  after  one  year  from  the  date  of  the  taking  effect  of  this 
act;  and  as  to  conveyances  hereafter  made,  from  and  after 
one  year  from  the  filing  for  record  in  the  recorder's  office  of 
such  convevances.  respectively.  [Amendment  approved  1897; 
Stats.  189?;  p.  63.] 

Community  property:  See  post,  §  687. 

Legislation  §  164.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  254,  §2),  and  then  read:  "All  other  property  acquired  after  mar- 
riage, by  either  husband  or  wife,  or  both,  is  community  property." 

2.  Amended  by  Stats.  1889,  p.  328,  adding  at  end  of  section,  "but 
whenever  any  property  is  conveyed  to  a  married  woman  by  an  instru- 
ment in  writing,  the  presumption  is  that  the  title  is  thereby  vested  in 
her  as  her  separate  property.     And  in  case  the  conveyance  be  to  such 


§  169  CIVIL   CODE.  54 

married  woman  and  her  husband,  or  to  her  and  any  other  person,  the 
presumption  is  that  the  married  woman  takes  the  part  conveyed  to 
her  as  tenant  in  common,  unless  a  different  intention  is  expressed  in 
the  instrument,  and  the  presumption  in  this  section  mentioned  is  con- 
clusive in  favor  of  a  purchaser  or  encumbrancer  in  good  faith  and  for 
a  valuable  consideration." 

3.  Amended  by  Stats.  1893,  p.  71,  adding  the  last  sentence. 

4.  Amended  by  Stats.  1897,  p  63. 

5.  Amendment  by   Stats.   1901,   p.   338;   unconstitutional.     See   note, 
§  4,  ante. 

§  165.  Inventory  of  separate  property  of  wife.  A  full  and 
complete  inventory  of  the  separate  personal  property  of  the 
wife  may  be  made  out  and  signed  by  her,  acknowledged  or 
proved  in  the  manner  required  by  law  for  the"  acknowledg- 
ment or  proof  of  a  grant  of  real  property  by  an  unmarried 
woman,  and  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  the  parties  reside. 

Legislation  §  165.     Epacted  March  21,   1872;   based   on   Stats.   1850, 

p.  254,  §§  3,  4. 

§  166.  Filing  inventory  notice  of  wife's  title.  The  filing  of 
the  inventory  in  the  recorder's  office  is  notice  and  prima  facie 
evidence  of  the  title  of  the  wife.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  193.] 

Legislation  §  166.     1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
.  p.  254,  §  5. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  193,  changing  "primary"  to 
"prima  facie." 

§  167.  Community  property.  Contracts  by  wife.  The  prop- 
erty of  the  community  is  not  liable  for  the  contracts  of  the 
wife,  made  after  marriage,  unless  secured  by  a  pledge  or 
mortgage  thereof  executed  by  the  husband.  [Amendment 
approve^d  1874;  Code  Amdts.  1873-74,  p.  193.] 

Debts  of  wife:  See  post,  §§  170,  171,  174. 
Community  property  is  liable  for  husband's  debts:  Post,  §  172. 
Necessaries  furnished  wife:   See  post,  §  174. 

Legislation  §  167.     1.  Enacted   March   21,   1872,   and   then   read:    "A 
wife  cannot  make  a  contract  for  the  payment  of  money." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  193. 

§  168.    Earnings  of  wife  not  liable  for  debts  of  husband.    The 

earnings  of  the  wife  are  not  liable  for  the  debts  of  the  husband. 
Legislation  §  168.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  226. 

§  169.  Earnings  of  wife,  when  living'  separate,  separate 
property.  The  earnings  and  accumulations  of  the  wife,  and 
of  her  minor  children  living  with  her  or  in  her  custody,  while 
she  is  living  separate  from  her  husband,  are  the  separate  prop- 
erty of  the  wife. 


55  HUSBAND  AND  WIFE.  §  172 

Sole  traders.  As  to  married  women  becoming  sole  traders,  and  their 
rights  and  liabilities  as  such,  see  Code  Civ.  Proc,  §§  1811-1821,  inclu- 
sive. 

Earnings  of  minors:   See  post,  §  212. 

Legislation  §  169.  Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  226. 

§  170.  Liability  for  debts  of  wife  contracted  before  mar- 
riage. The  separate  property  of  the  husband  is  not  liable  for 
the  debts  of  the  wife  contracted  before  the  marriage. 

Legislation  §  170.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  254,  §§5,  13. 

2.  Amendment  by  Stats.  1901,  p.  339;  unconstitutional.  See  note, 
§  4,  ante. 

§  171.  Liability  of  separate  property  of  wife.  The  sepa- 
rate property  of  the  wife  is  liable  for  her  own  debts  contracted 
before  or  after  her  marriage,  but  is  not  liable  for  her  hus- 
band's debts ;  provided,  that  the  separate  property  of  the  wife 
is  liable  for  the  payment  of  debts  contracted  by  the  husband 
or  wife  for  the  necessaries  of  life  furnished  to  them  or  either 
of  them  while  they  are  living  together;  provided,  that  the 
provisions  of  the  foregoing  proviso  shall  not  apply  to  the  sepa- 
rate property  of  the  wife  held  by  her  at  the  time  of  her  mar- 
riage or  acquired  by  her  by  devise,  succession,  or  gift,  other 
than  by  gift  from  the  husband,  after  marriage.  [Amendment 
approved  1915;  Stats.  1915,  p.  920.] 

Legislation  §  171.     1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 

p.  254,  §§  5,  13),  and  then  read:  "The  separate  property  of  the  wife  is 

not  liable  for  the  debts  of  her  husband,  but  is  liable  for  her  own  debts, 

contracted  before  or  after  marriage." 

2.  Amended  by  Stats.  1905,  p.  206,  to  read:  "The  separate  property 
of  the  wife  is  liable  for  her  own  debts  contracted  before  or  after  her 
marriage',  but  is  not  liable  for  her  husband's  debts;  provided,  that 
such  property  is  liable  for  the  payment  of  debts  contracted  by  the  hus- 
band or  wife  for  the  necessaries  of  life  furnished  to  them  or  either 
of  them  while  they  are  living  together.  Provided  that  the  provisions 
of  this  act  shall  not  apply  to  the  separate  property  of  the  wife  held 
by  her  at  the  time  of  her  marriage  or  acquired  by  her  by  devise  or 
succession  after  marriage." 

3.  Amended  by  Stats.  1915,  p.  920. 

§  171a.  Married  woman's  torts.  For  civil  injuries  com- 
mitted by  a  married  woman,  damages  may  be  recovered  from 
her  alone,  and  her  husband  shall  not  be  liable  therefor,  except 
in  cases  where  he  would  be  jointly  liable  with  her  if  the  mar- 
riage did  not  exist. 

Legislation  §  171a.     Added  by  Stats.  1913,  p.  217. 

§  172.     Management,  control,  and  disposition  of  community 

property.     The  husband  has  the  management  and  control  of 
the  community  property,  with  the  like  absolute  power  of  dis- 


§  174  CIVIL   CODE.  56 

position,  other  than  testamentary,  as  he  has  of  his  separate 
estate ;  provided,  however,  that  he  cannot  make  a  gift  of  such 
community  property,  or  convey  the  same  v^ithout  a  valuable 
consideration,  unless  the  wife,  in  writing,  consent  thereto ; 
and  provided  also,  that  no  sale,  conveyance  or  encumbrance 
of  the  furniture,  furnishings  and  fittings  of  the  home,  or  of 
the  clothing  and  wearing  apparel  of  the  wife  or  minor  chil- 
dren, which  is  community  property,  shall  be  made  without 
the  written  consent  of  the  wife.  [Amendment  approved  1901 ; 
Stats.  1901,  p.  598.] 

Testamentary  control  over  community  property:  See  post,  §§  1401, 
1402,  which  prescribe  the  course  of  descent  of  common  property,  and 
limit  the  power  of  testamentary  disposition  over  the  same. 

Community   property.     Generally:    See    ante.  §  164. 

Dissolution  of  the  community  by  divorce:   See  ante,  §§  147,  148. 

Legislation  §  172.  1,  Enacted  March  21.  1872  (based  on  Stats.  18.50. 
p.  254,  §9).  and  then  read:  "The  husband  has  the  management  and 
control  of  the  community  property,  with  the  like  absolute  power  of 
disposition  (other  than  testamentary)  as  he  has  of  his  separate  estate." 
The  code  commissioners  say:  "The  following  section  had  a  place  in  first 
draft.  It  is  retained  in  the  form  of  a  note.  The  legislature  can  re- 
store if  desirable:  'Sec.  — .  Tn  cases  of  fraudulent  tranpfer".  p-ross 
mismanagement  or  profligate  waste  of  common  property  by  the  hus- 
band, the  wife  may  have  her  action  in  the  proper  court,  and  is,  upon 
proper  showing,  entitled  to  a  juflgment — 1.  Securing  to  her  the  entire 
management  and  absolute  power  of  disposition  of  it,  in  like  manner 
and  extent  as  the  husband  had  before  the  commencement  of  the  action; 
or.  2.  Appointinoc  a  trustee  to  manage  it.  as  the  court  may  direct;  or, 
8.  Equitably  dividing  the  nroperty,  making  the  part  awarded  to  each 
their  separate  property.'  This  is  a  new  section,  and  may  seem  at  first- 
like  an  alarming  innovation.  There  is  a  strange  inconsistency  in  the 
existing  law:  1.  The  property  is  made  common  between  the  husband 
and  wife.  They  have  a  common  interest  in  it.  2.  The  husband  can 
sell  it,  give  it  away  or  willfully  destroy  it — exercise  all  the  powers  of 
absolute,  exclusive  ownership,  and  the  wife  has  no  remedy  except  bv 
divorce  or  his  death.  She  must  witness  the  passing  away,  through 
profligacv,  of  a  family  competence  in  which  she  has  half-interest — a 
right  without  a  remedy.  This  section  is  intended  to  secure  the  remedy 
in  grievous  cases  only." 

?.   Amended  by  Stats.  1891,  p.  425,  adding  the  first  proviso. 

3.   Amended  by  Stats.  1901,  p.  598,  adding  the  second  proviso. 

§173.  Curtesy  and  dow^ernot  allowed.  No  estate  is  allowed 
the  husband  as  tenant  by  curtesy  upon  the  death  of  his  wife, 
nor  is  any  estate  in  dower  allotted  to  the  wife  upon  the  death 
of  her  husband. 

Leeislation  §  173.     Enacted   March    21,   1872,   based    on    Stats.    1850, 

p.  254,  §  10. 

§  174.  Support  of  wife.  If  the  husband  neglect  to  make 
adequate  provision  for  the  support  of  his  wife,  except  in  the 
cases  mentioned  in  the  next  section,  any  other  person  may,  in 
good  faith,  supply  her  with  articles  necessary  for  her  support, 


§  174  CIVIL   CODE.  56 

position,  other  than  testamentary,  as  he  has  of  his  separate 
estate ;  provided,  however,  that  he  cannot  make  a  gift  of  such 
community  property,  or  convey  the  same  without  a  valuable 
consideration,  unless  the  wife,  in  writing,  consent  thereto ; 
and  provided  also,  that  no  sale,  conveyance  or  encumbrance 
of  the  furniture,  furnishings  and  fittings  of  the  home,  or  of 
the  clothing  and  wearing  apparel  of  the  wife  or  minor  chil- 
dren, which  is  community  property,  shall  be  made  without 
the  written  consent  of  the  wife.  [Amendment  approved  1901 ; 
Stats.  1901,  p.  598.] 

Testamentary  control  over  community  property:  See  post,  §§  1401. 
1402,  which  prescribo  the  course  of  descent  of  common  property,  and 
limit  the  power  of  testamentary  disposition  over  the  same. 

Community   property.     Generally:    See    ante.  §  164. 

Dissolution  of  the  community  by  divorce:    See  ante,  §§  147,  148. 

Legislation  §  172.  1.  Enacted  March  21.  1872  fbased  on  Stats.  18-50. 
p.  254,  §  9).  and  then  read:  "The  husband  has  the  management  and 
control  of  the  community  property,  with  the  like  absolute  power  of 
disposition  (other  than  testamentary)  as  he  has  of  his  separate  estate." 
The  code  commissioners  say:  "The  following  section  had  a  place  in  first 
draft.  It  is  retained  in  the  form  of  a  note.  The  legislature  can  re- 
store if  desirable:  'Sec.  — .  Tn  cases  of  fraudulent  tranpfer".  prnss 
mismanagement  or  profligate  waste  of  common  property  by  the  hus- 
band, the  wife  may  have  her  action  in  the  proper  court,  and  is,  upon 
proper  showing,  entitled  to  a  judgment — 1.  Securing  to  her  the  entire 
management  and  absolute  power  of  disposition  of  it,  in  like  manner 
and  extent  as  the  husband  had  before  the  commencement  of  the  action; 
or.  2.  Appointing  a  trustee  to  manage  it.  as  the  court  may  direct;  or, 
.^.  Equitably  dividing  the  Droperty,  making  the  part  awarded  to  each 
their  separate  property.'  This  is  a  new  section,  and  may  seem  at  first 
like  an  alarming  innovation.  There  is  a  strange  inconsistency  in  the 
existing  law:  1.  The  property  is  made  common  between  the  husband 
and  wife.  They  have  a  common  interest  in  it.  2.  The  husband  can 
sell  it,  give  it  away  or  willfully  destroy  it — exercise  all  the  powers  of 
absolute,  exclusive  ownership,  and  the  wife  has  no  remedy  except  bv 
divorce  or  his  death.  She  must  witness  the  passing  away,  through 
profligacv,  of  a  family  competence  in  which  she  has  half-interest — a 
right  without  a  remedy.  This  section  is  intended  to  secure  the  remedj- 
in  grievous  cases  only." 

?.   Amended  by  Stats.  1891,  p.  425,  adding  the  first  proviso. 

3.  Amended  by  Stats.  1901,  p.  598,  adding  the  second  proviso. 

§  173.  Curtesy  and  dov^^er  not  allov^ed.  No  estate  is  allowed 
the  husband  as  tenant  by  curtesy  upon  the  death  of  his  wife, 
nor  is  any  estate  in  dower  allotted  to  the  wife  upon  the  death 
of  her  husband. 

Legislation  §  173.     Enacted   March    21,   1872,   based    on    Stats.    ISoO, 

p.  254,  §  10. 

§  174.  Support  of  wife.  If  the  husband  neglect  to  make 
adequate  provision  for  the  support  of  his  wife,  except  in  the 
eases  mentioned  in  the  next  section,  any  other  person  may,  in 
good  faith,  supply  her  with  articles  necessary  for  her  support, 


172  Management,  Control  and  Disposition  of  Community  Per- 
sonal Property.  The  husband  has  the  management  and  control  of 
the  community  [personal]  property,  with  like  absolute  power  of 
disposition,  other  than  testamentary,  as  he  has  of  his  separate 
estate-  provided,  however,  that  he  can  not  malce  a  gift  of  su'ch 
communitv  [personal]  property,  or  [dispose  of]  the  same  without 
a  valuable  consideration,  [or  sell,  convey,  or  encumber  the  furni- 
ture, furnishings,  or  fittings  of  the  home,  or  the  clothing  or  wear- 
ing  apparel  of  the  wife  or  minor  children  that  is  community,  with- 
out the  written  consent  of  the  wife.]  Un  effect  9'^^^^^-.*™;-  J"^ 
after  April  27,   IftlT.     Stats.    1917.   Chap.   583.)  C.v.   Code,   1917. 


172a.      [New.]      Management    and    Control    of    Community    Real 

Property.  The  husband  has  the  management  and  control  of  the 
community  real  property  but  the  wife  must  join  with  him  in  exe- 
cuting any  insrtrument  by  which  such  community  real  property 
or  any  interest  therein  is  leased  for  a  longer  period  than  one  year, 
or  is  sold,  conveyed,  or  encumbered;  provided,  however,  that  the 
sole  lease,  contract,  mortgage  or  deed  of  the  hu.sband,  holding  the 
record  title  to  community  real  property,  to  a  lessee,  purchaser  or 
encumbrancer,  in  good  faith  without  knowledge  of  the  marriage 
relation  shall  be  presumed  to  be  valid;  but  no  action  to  avoid  such 
instrument  shall  be  commenced  after  the  expiration  of  one  year 
from  the  filing  for  record  of  such  instrument  in  the  recorder's 
office  in  the  county  in  which  the  land  is  situate.  (In  effect  90 
days   from   and   after   April   27,    1917.     Stats.    1917,   Chap.    583.) 

Civ.  Code,  1917. 

172b.      [New.]      Sale,   Conveyance,    Mortgage  or   Lease   of   Com- 

172b.  Sale,  Conveyance,  Mortgage  or  Lease  of  Community 
Property  Where  One  Spouse  Adjudged  Insane  or  Incompetent. 
Where  real  property  is  held  as  community  property,  and  either 
the  husband  or  wife  has  been  adjudged  insane  [or  incompetent,! 
the  husband  or  wife  not  insane  [or  incompetent]  may  petition 
the  superior  court  of  the  county  in  which  such  community  real 
property  is  situated  for  an  order  permitting  the  husband  or  wife, 
not  insane  [or  incompetent,]  to  sell  and  convey,  mortgage  or 
lease,  such  community  real  property  to  raise  moneys  to  provide 
for  the  support  and  care  either  of  the  sane  or  insane  [or  incom- 
petent] spouse,  or  of  their  minor  children,  and  also  to  raise 
moneys  for  the  payment  of  the  necessary  taxes,  interest  and 
other  charges  incurred  and  required  to  be  paid  for  the  protec- 
tion and  preservation  of  the  community  estate  [and  whenever  it 
appears  it  is  for  the  advantage,  benefit  and  best  interests  of  the 
spouses,  the  estate  or  their  dependents.]  Such  petition  must  be 
subscribed  and  sworn  to  by  the  applicant,  setting  forth  the  name 
and  age  of  the  insane  [or  incompetent]  husband  or  wdfe;  a 
description  of  the  premises  constituting  the  community  real  prop- 
erty petitioned  to  be  sold,  mortgaged,  or  leased;  the  value  of 
same;  the  county  in  w^hich  it  is  situated;  and  such  facts,  in  addi- 
tion to  the  insanity  [or  incompetency]  of  the  husband  or  wife, 
relating  to  the  circumstances  and  necessities  of  the  applicant  and 
his  or  her  family  as  he  or  she  may  rely  upon  in  support  of  the 
petition.  (In  effect  90.  days  from  and  after  April  29,  1921.  Stats. 
1921,   Chap.    95.)  Civ.  Code,  1921. 


172c.  Notice  of  Application  for  Order,  How  Given;  Public 
Administrator  to  Be  Served,  When.  Notice  of  the  application  for 
such  order  must  be  given  by  pubUcation  of  the  same,  in  a  news- 
paper published  in  the  county  in  which  such  community  real 
property  is  situated,  if  there  is  a  newspaper  published  therein, 
once  each  week  for  three  successive  weeks,  prior  to  the  hearing 
of  such  application,  and  a  copy  of  such  notice  must  also  be  per- 
sonally served  upon  the  nearest  relative  of  such  insane  [or  In- 
competent] husband  or  wife,  resident  in  this  state,  at  least  three 
weeks  prior  to  such  application;  and  in  case  there  is  no  such 
relative  known  to  the  applicant,  a  copy  of  such  notice  must  be 
served  upon  the  public  administrator  of  the  county  in  which 
such  community  real  property  is  situated;  and  in  such  case  it  is 
the  duty  of  such  public  administrator  to  appear  and  represent 
the  interest  of  such  insane  [or  incompetent]  person.  For  all 
such  services  rendered  by  the  public  administrator  he  must  be 
allowed  a  reasonable  fee,  to  be  fixed  by  the  court,  and  the  same 
must  be  taxed  as  costs  against  the  person  making  application  for 
the  order  herein  provided  for.  (In  effect  90  days  from  and  after 
April  29,    1921.     Stats.    1921,   Chap.    95.)  Civ.  Code,  1921. 

Anvil    22,    1910.       Stais.     i;'^..,     ^ 

172d.  Duty  of  Court  to  iVIake  Order.  If  it  appears  to  the 
court  that  such  husband  or  wife  has  been  adjudged  insane  [or 
incompetent],  the  court  may  make  an  order  permitting  the  hus- 
band or  wife,  not  insane  [or  incompetent],  to  sell  and  convey, 
or  mortgage  or  lease  such  community  real  property,  and  there- 
after any  sale,  conveyance,  mortgage  or  lease,  made  in  pursu- 
ance of  such  order  is  as  valid  and  effectual  as  if  the  property 
affected  thereby  was  the  absolute  property  of  the  person  making 
such  sale,  conveyance,  mortgage  or  lease.  If  a  sale  is  ordered 
It  must  be  reported  to  and  confirmed  by  the  court.  (In  effect 
90    days    from    and    after   April    29,    1921.     Stats.    1921.     Chap.    95.) 

CIv.  Code,  1921. 


57  HUSBAND  AND   WIFE.  §  179 

and  recover  the  reasonable  value  thereof  from  the  husband. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  193.] 
Legislation  §  174.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  84),  and  then  read:  "If  the  husband  neglects  to  make 
adequate  provision  for  the  support  of  his  wife,  any  other  person  may, 
in  good  faith,  supply  her  with  articles  necessary  for  her  support,  and 
recover  the  reasonable  value  thereof  from  the  husband." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  193. 

§  175.  Husband  not  liable  when  abandoned  by  wife.  A  hus- 
band abandoned  by  his  wife  is  not  liable  for  her  support  until 
she  offers  to  return,  unless  she  was  justified,  by  his  miscon- 
duct, in  abandoning  him ;  nor  is  he  liable  for  her  support  when 
she  is  living  separate  from  him,  by  agreement,  unless  such 
support  is  stipulated  in  the  agreement.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  193.] 

Legislation  §  175.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  85),  and  then  read:  "A  husband  abandoned  by  his 
wife  is  not  liable  for  her  support  until  she  offers  to  return,  unless  she 
was  justified,  by  his  misconduct,  in  abandoning  him." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  193. 

§  176.  When  wife  must  support  husband.  The  wife  must 
support  the  husband,  when  he  has  not  deserted  her,  out  of 
her  separate  property,  when  he  has  no  separate  property,  and 
there  is  no  community  property,  and  he  is  unable,  from  in- 
firmity, to  support  himself.  [Amendment  approved  1874; 
Code  Amdts.  1873^74,  p.  194.] 

Mutual  obligations  of  support:   See  ante,  §  155. 

Legislation  §  176.     1.  Enacted  March  21,  1872,  and  then  read:   "The 
wife  must  support  the  husband  out  of  her  separate  property  when  he 
has  no  separate  property  and  they  no  community  property,  and  he  from 
infirmity  is  not  able  or  competent  to  support  himself." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  194. 

§  177.  Rights  of  husband  and  wife  governed  by  what.  The 
property  rights  of  husband  and  wife  are  governed  by  this 
chapter,  unless  there  is  a  marriage  settlement  containing 
stipulations  contrary  thereto. 

Legislation  §  177.     Enacted   March   21,   1872;    based   on   Stats.   1850, 

p.  254,  §  14. 

§178.    Marriage  settlement  contracts,  how  executed.     All 

contracts  for  marriage  settlements  must  be  in  writing,  and  exe- 
cuted and  acknowledged  or  proved  in  like  manner  as  a  grant 
of  land  is  required  to  be  executed  and  acknowledged  or  proved. 
Legislation  §  178.     Enacted   March   21,   1872;    based   on   Stats.    1850, 
p.  254,  §  16. 

§  179.  To  be  acknowledged  and  recorded.  When  such  con- 
tract is  acknowledged  or  proved,  it  must  be  recorded  in  the 


§  181  CIVIL   CODE.  58 

office  of  the  recorder  of  every  county  in  which  any  real  estate 
may  be  situated  which  is  granted  or  affected  by  such  contract. 
Legislation  §  179.     Enacted   March   21,   1872;    based   on   Stats.   1850, 
p.  254,  §  17. 

§  180.  Effect  of  recording.  The  recording  or  non-recording 
of  such  contract  has  a  like  effect  as  the  recording  or  non- 
recording  of  a  grant  of  real  property. 

Legislation  §  180.     Enacted  March  21,   1872;    based  on  Stats.   1850, 

p.  254,  §  IS. 

§  181.  Minors  may  make  marriage  settlements.  A  minor 
capable  of  contracting  marriage  may  make  a  valid  marriage 
settlement. 

Legislation  §  181.     Enacted   March   21,   1872;    based  on   Stats.   1850, 

p.  254,  §  20. 


TITLE  II. 
Parent  and  Child. 

Chapter  I.     Children  by  Birth.     §§  193-215. 

II.     Children  by  Adoption.     §§  221-230. 

CHAPTER  I. 

Children  by  Birth. 

§  193.  Legitimacy  of  chiWren  born  in  wedlock. 
§  194.  Children  after  dissolution  of  marriage. 
§  195.     Who  may  dispute  the  legitimacy  of  a  child. 

§  196.     Obligation  of  parents  for  the  support  and  education  of  their  chil- 
dren. 
§  196a.  Support  of  illegitimate  child. 
§  197.     Custody  of  minors. 
§  198.     Husband  and  wife  living  separate,  neither  to  have  superior  right 

to  custody  of  children. 
§  199.     When  husband  or  wife  may  bring  action  for  the  exclusive  control 

of  children.     Decree  in  such  cases. 
§  200.     Custody  of  an  illegitimate  child. 
§  201.     Allowance  to  parent. 

§  202.     Parent  cannot  control  the  property  of  child. 
§  203.     Eemedy  for  parental  abuse. 
§  204.     W^hen  parental  authority  ceases. 
§  205.     Eemedy  when  a  parent  dies  without  providing  for  the  support  of 

his  child. 
§  206.     Reciprocal   duties   of   parents   and   children   in   maintaining   each 

other. 
§  207.     W^hen  a  parent  is  liable  for  necessaries  supplied  to  a  child. 
§  208.     When  a  parent  is  not  liable  for  support  furnished  his  child. 
§  209.     Husband  not  bound  for  the  support  of  his  wife's  children  by  a 

former   marriage. 
§  210.     Compensatiob  and  support  of  adult  child. 
§  211.     Parent  may  relinquish  services  and  custody  of  child. 
§  212.     Wages  of  minors. 


59  CHILDREN    BY    BIRTS.  §  196 

§  213.    -Right  of  parent  to  determine  the  residence  of  child. 

§  214.     Wife  in  certain  cases  may  obtain  custody  of  minor  children. 

§  215.     When  child  becomes  legitimate. 

§  193.  Legitimacy  of  children  born  in  wedlock.  All  children 
born  in  wedlock  are  presumed  to  be  legitimate. 

Legitimacy  of  children  of  nullified  marriage:  See  ante,  §  84. 

Legitimacy  in  cases  of  adultery:   See  ante,  §§  144,  145. 

Rebutting  presumption  of  legitimacy:   Post,  §  195. 

Legitimating  children  by  marriage  of  parents:   See  post,  §  215. 

Father  legitimating  child  by  acknowledging  it:  Post,  §  230;  and  com- 
pare  post,  §  1387. 

Mother  entitled  to  custody  of  illegitimate  unmarried  minor:  See  post, 
§200. 

Illegitimate's  earnings:   See  post,  §  200. 

Illegitimates,  heirs  to  whom:  Post,  §  1387. 

Mother  succeeds  to  estate  of  illegitimate:  Post,  §  1388. 

Presumption  of  legitimacy  of  children:  See  Code  of  Civil  Procedure, 
§  1962,  subd.  5. 

Legislation  §  193.  1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  86. 

2.  Amendment  by  Stats.  1901,  p.  339;  unconstitutional.  See  note, 
§  4,  ante. 

§  194.  Children  after  dissolution  of  marriage.  All  children 
of  a  woman  who  has  been  married,  born  within  ten  months 
after  the  dissolution  of  the  marriage,  are  presumed  to  be 
legitimate  children  of  that  marriage.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  194.] 

Legislation  §  194.  1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  87. 

2,  Amended  by  Code  Amdts.  1873-74,  p.  194,  (1)  inserting  "children 
of  that  marriage"  after  "legitimate,"  and  (2)  omitting  the  final  sen- 
tence, reading,  "But  if  during  such  period  she  marries  again,  and  after- 
wards has  a  child,  it  is  presumed  to  be  her  legitimate  ofi:spring  by  the 
second  husband." 

§  195.     Who  may  dispute  the  legitimacy  of  a  child.    The  pre- 
sumption of  legitimacy  can  be  disputed  only  by  the  husband 
or  wife,   or  the   descendant   of   one   or  both   of   them.     Ille- 
gitimacy, in  such  case,  may  be  proved  like  any  other  fact. 
Legislation  §  195.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  88. 

§  196.  Obligation  of  parents  for  the  support  and  education  of 
their  children.  The  parent  entitled  to  the  custody  of  a  child 
must  give  him  support  and  education  suitable  to  his  circum- 
stances. If  the  support  and  education  which  the  father  of  a 
legitimate  child  is  able  to  give  are  inadequate,  the  mother 
must  assist  him  to  the  extent  of  her  ability. 

Action  to  enforce  parental  duty:  Post,  §  203. 

Third  person  supplying  necessaries:  Post,  §§  207,  208. 

Willful  failure  to  support  child  is  a  misdemeanor:  Pen.  Code,  §  270. 


§  199  CIVIL  CODE.  60 

Deserting  child  is  a  felony:  Pen.  Code,  §  271. 
Disposing  of  child  for  mendicant  purposes:   See  Pen.  Code,  §  272. 
Supporting  poor  relatives:  See  post,  §  206. 
Injury  to  child,  action  for:   See  Code  Civ.  Proc,  §  376. 
Legislation  §  196.     Euaeted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  S9. 

§  196a.  Support  of  illegitimate  child.  The  father  as  well 
as  the  mother,  of  an  illegitimate  child  must  give  him  support 
and  education  suitable  to  his  circumstances.  A  civil  suit  to 
enforce  such  obligations  may  be  maintained  in  behalf  of  a 
minor  illegitimate  child,  by  his  mother  or  guardian,  and  in 
such  action  the  court  shall  have  power  to  order  and  enforce 
performance  thereof,  the  same  as  under  sections  138,  139  and 
140  of  the  Civil  Code,  in  a  suit  for  divorce  by  a  wife. 
Legislation  §  196a.     Added  by  Stats.  1913,  p.  218. 

§  197.     Custody  of  minors.    The  father  and  mother  of  a  legit- 
imate unmarried  minor  child  are  equally  entitled  to  its  cus- 
tody, services  and  earnings.     If  either  the  father  or  mother  be 
dead  or  unable  or  refuse  to  take  the  custody  or  has  abandoned 
his  or  her  family,  the  other  is  entitled  to  its  custody,  services 
and  earnings.     [Amendment  approved  1913;  Stats.  1913,  p.  52.] 
Relinquishing  right  to  child's  earnings:  Post,  §  211. 
Property  of  child.     Parent,  as  such,  has  no  control  of:  Post,  §  202. 
Guardian,  appointment  of:   See  post,  §§  241  et  seq. 
Legislation  §  197.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  90),  and  then  read:  "The  father  of  a  legitimate  un- 
married minor  is  entitled  to  its  custody,  services,  and  earnings;   but 
he  cannot  transfer  such  custody  or  services  to  any  other  person,  except 
the  mother,  without  her  written  consent,  if  she  is  living  and  capable 
of  consent.     If  the  father  is  dead,  or  is  unable,  or  refuses  to  take  the 
custody,  or  has  abandoned  his  family,  the  mother  is  entitled  thereto." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  194,  to  read:  "The  father 
of  a  legitimate  unmarried  minor  child  is  entitled  to  its  custody,  ser- 
vices, and  earnings;  but  he  cannot  transfer  such  custody  or  services  to 
any  other  person,  except  the  mother,  without  her  written  consent, 
unless  she  has  deserted  him,  or  is  living  separate  from  him  by  agree- 
ment. If  the  father  be  dead,  or  be  unable,  or  refuse  to  take  the  cus- 
tody, or  has  abandoned  his  family,  the  mother  is  entitled  thereto." 

3.  Amended  by  Stats.  1913,  p.  52. 

§  198.  Husband  and  wife  living  separate,  neither  to  have 
superior  right  to  custody  of  children.  The  husband  and 
father,  as  such,  has  no  rights  superior  to  those  of  the  wife  and 
mother,  in  regard  to  the  care,  custody,  education,  and  control 
of  the  children  of  the  marriage,  while  such  husband  and  wife 
live  separate  and  apart  from  each  other. 

Custody  of  child  in  divorce  causes:  See  ante,  §  138. 
Legislation  §  198.     Enacted  March  21,  1872. 

§  199.  When  husband  or  w^ife  may  bring  action  for  the  ex- 
clusive control  of  children.     Decree  in  such  cases.    Without  ap- 


61  chHjDren  by  birth.  §  203 

plication  for  a  divorce,  the  husband  or  the  wife  may  bring  an 
action  for  the  exclusive  control  of  the  children  "of  the  marriage; 
and  the  court  may.  during  the  pendency  of  such  action,  or  at 
the  final  hearing  thereof,  dr  afterwards,  make  such  order  or 
decree  in  regard  to  the  support,  care,  custody,  education,  and 
control  of  the  children  of  the  marriage,  as  may  be  just,  and 
in  accordance  with  the  natural  rights  of  the  parents  and  the 
best  interests  of  the  children,  and  may  at  any  time  thereafter 
amend,  vary,  or  modify  such  order  or  decree,  as  the  natural 
rights  and  the  interests  of  the  parties,  including  the  children, 
may  require. 

Compare  with  §  214,  infra. 

Control  of  children,  pending  divorce  proceedings:  See  ante,  §  13S. 

Awarding  custody  of  child.  Considerations  that  should  govern  court: 
Post,  §  246. 

Legislation  §  199.     Enacted  March  21,  1872. 

§200.  Custody  of  an  illegitimate  child.  The  mother  of  an 
illegitimate  unmarried  minor  is  entitled  to  its  custody,  ser- 
vices,  and  earnings. 

Mother  the  heir  of  illegitimate  child:  Post.  §  1388. 
Legislation  §  200.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  91. 

§201.  Allowance  to  parent.  The  proper  court  may  direct 
an  allowance  to  be  made  to  the  parent  of  a  child,  out  of  its 
property,  for  its  past  or  future  support  and  education,  on  such 
conditions  as  may  be  proper,  whenever  such  direction  is  for 
its  benefit. 

Legislation  §  201.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  92. 

§  202.     Parent  cannot  control  the  property  of  child.     The 

parent,  as  such,  has  no  control  over  the  property  of  the  child. 
Guardian  of  minor's  estate:  See  post,  §§  241  et  seq. 
Legislation  §  202.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  93. 

§  203.  Remedy  for  parental  abuse.  The  abuse  of  parental 
authority  is  the  subject  of  judicial  cognizance  in  a  civil  ac- 
tion brought  by  the  child,  or  by  its  relative  within  the  third 
degree,  or  by  the  supervisors  of  the  county  where  the  child 
resides;  and  when  the  abuse  is  established,  the  child  may  be 
freed  from  the  dominion  of  the  parent,  and  the  duty  of  sup- 
port and  education  enforced.  • 
Parental  duty:   See  ante.  §  196. 

Omission  to  supply  child  with  necessaries,  misdemeanor.     Desertion 
punished  by  imprisonment:  Pen.  Code,  §§  270,  271. 

Legislation  §  203.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  94. 


§  208  CIVIL  CODE.  62 

§  204.  When  parental  authority  ceases.  The  authority  of 
a  parent  ceases : 

1.  Upon  the  appointment,  by  a  court,  of  a  guardian  of  the 
person  of  a  child ; 

2.  Upon  the  marriage  of  the  child;  or, 

3.  Upon  its  attaining  majority. 

Legislation  §  204.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  95. 

§  205.  Remedy  when  a  parent  dies  without  providing  for 
the  support  of  his  child.  If  a  parent  chargeable  with  the  sup- 
port of  a  child  dies,  leaving  it  chargeable  to  the  county,  and 
leaving  an  estate  sufficient  for  its  support,  the  supervisors  of 
the  county  may  claim  provision  for  its  support  from  the  par- 
ent's estate  by  civil  action,  and  for  this  purpose  may  have 
the  same  remedies  as  any  creditors  against  that  estate,  and 
against  the  heirs,  devisees,  and  next  of  kin  of  the  parent. 

Legislation  §  205.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  96. 

§  206.  Reciprocal  duties  of  parents  and  children  in  main- 
taining each  other.  It  is  the  duty  of  the  father,  the  mother, 
and  the  children  of  any  poor  person  Avho  is  unable  to  maintain 
himself  by  work,  to  maintain  such  person  to  the  extent  of 
their  ability.  The  promise  of  an  adult  child  to  pay  for  neces- 
saries previously  furnished  to  such  parent  is  binding. 

Mother  supporting  children:   Ante,  §  196. 
Wife  supporting  husband:   Ante,  §  176. 

Legislation  §  206.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  97. 

§  207.  When  a  parent  is  liable  for  necessaries  supplied  to  a 
child.  If  a  parent  neglects  to  provide  articles  necessary  for 
his  child  Avho  is  under  his  charge,  according  to  his  circum- 
stances, a  third  person  may  in  good  faith  supply  such  neces- 
saries, and  recover  the  reasonable  value  thereof  from  the 
parent. 

Infant  liable  on  contract  for  necessaries:  See  ante,  §  36. 
Legislation  §  207.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  98. 

§  208.  When  a  parent  is  not  liable  for  support  furnished 
his  child.  A  parent  is  not  bound  to  compensate  the  other  par- 
ent, or  a  relative,  for  the  voluntary  support  of  his  child,  with- 
out an  agreement  for  compensation,  nor  to  compensate  a 
stranger  for  the  support  of  a  child  who  has  abandoned  the 
parent  without  just  cause. 

Legislation  §  208.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.-  Y.  Civ.  Code,  §  99. 


63  CHILDREN    BY    BIRTH.  §  214 

§  209.  Husband  not  bound  for  the  support  of  his  wife's 
children  by  a  former  marriage.  A  husband  is  not  bound  to 
maintain  his  wife's  children  by  a  former  husband ;  but  if  he 
receives  them  into  his  family  and  supports  them,  it  is  pre- 
sumed that  he  does  so  as  a  parent,  and,  where  such  is  the  case, 
they  are  not  liable  to  him  for  their  support,  nor  he  to  them 
for  their  services. 

Iiegislation  §  209.     Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  100. 

§  210.  Compensation  and  support  of  adult  child.  Where  a 
child,  after  attaining  majority,  continues  to  serve  and  to  be 
supported  by  the  parent,  neither  party  is  entitled  to  com- 
pensation,  in  the   absence   of  an   agreement  therefor. 

Legislation  §  210.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  101. 

§  211.     Parent  may  relinquish  services  and  custody  of  child. 

The  parent,  whether  solvent  or  insolvent,  may  relinquish  to 
the  child  the  right  of  controlling  him  and  receiving  his  earn- 
ings. Abandonment  by  the  parent  is  presumptive  evidence 
of  such  relinquishment. 

Legislation  §  211.  Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  102. 

§  212.  Wages  of  minors.  The  wages  of  a  minor  employed 
in  service  may  be  paid  to  him,  until  the  parent  or  guardian 
entitled  thereto  gives  the  employer  notice  that  he  claims  such 
wages.  [Amendment  approved  1874;  Code  Aradts.  1873-74, 
p.  194.] 

Earnings  of  minor:  See  ante,  §  169. 

Legislation  §  212.  1.  Enacted  March  21, 1872  (based  on  Field's  Draf  c, 
N.  Y.  Civ.  Code,  §  103),  and  then  read:  "The  wages  of  a  minor  em- 
ployed in  service  may  be  paid  to  him,  unless,  within  thirty  days  after 
the  commencement  of  the  service,  the  parent  or  guardian  entitled 
thereto  gives  the  employer  notice  that  he  claims  such  wages." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  194. 

§  213.    Right  of  parent  to  determine  the  residence  of  child. 

A  parent  entitled  to  the  custody  of  a  child  has  a  right  to 
change  his  residence,  subject  to  the  power  of  the  proper  court 
to  restrain  a  removal  which  would  prejudice  the  rights  or  wel- 
fare of  the  child. 

Residence.     Husband's  right  to  change:  See  ante,  §  156. 

Legislation  §  213.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  104. 

§  214.  Wife  in  certain  cases  may  obtain  custody  of  minor 
children.  When  a  husband  and  wife  live  in  a  state  of  separa- 
tion, without  being  divorced,   any  court  of  competent  juris- 


§  221  CIVIL   CODE.  64 

diction,  upon  application  of  either,  if  an  inhabitant  of  this 
state,  may  inquire  into  the  custody  of  any  unmarried  minor 
child  of  the  marriasre,  and  may  award  the  custody  of  such  child 
to  either,  for  such  time  and  under  such  regulations  as  the  case 
may  require.  The  decision  of  the  court  must  be  guided  by 
the  rules  prescribed  in  section  two  hundred  and  forty-six. 

Custody  of  child  without  divorce  of  parents:  See  ante,  §  199. 
Custody  of  child  pending  divorce  proceedings:  See  ante,  §  138. 
Custody  when  parents  separated:   See  ante,  §  214. 

Legislation  §  214.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  106. 

§  215.  When  child  becomes  legitimate.  A  child  born  before 
wedlock  becomes  legitimate  by  the  subsequent  marriage  of  its 
parents. 

Legislation  §  215.     Added  by  Code  Amdts.  1873-74,  p.  195. 

CHAPTER  IT. 

Children  by  Adoption. 

§  221.  Child  may  be  adopted. 

§  222.  Who  may  adopt. 

§  223.  Consent  of  wife  necessary. 

§  224.  Consent    to    adoption    of    children.     .Abandoned    child.     Child    in 

orphan  osvlnni. 

§  22.5.  Consent  of  child. 

§  226.  Proceedings  on   adoption. 

§  227.  Tudge's  order;  where  filed. 

§  228.  Effect  of  adoption. 

§  229.  Effect  on  former  relations  of   child. 

§  230.  Adoption  of  illegitimate  child. 

§221.  Child  mav  be  adopted.  Any  minor  cbild  may  be 
adopted  by  any  adult  person,  in  the  cases  and  sub.ieet  to  the 
rules  prescribed  in  this  chapter. 

Legislation  §  221.  Enacted  March  21.  1872:  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §107;  Stats.  1869-70.  p.  530,  §  1.  The  code  commis- 
sioners say:  "The  total  absence  of  any  provision  for  the  adoption  of 
children  is  one  of  the  most  remarl\able  defects  of  onr  law.  Thousands 
of  children  are  actually,  though  not  legally,  adopted  every  year;  yet 
there  is  no  method  by  which  the  adopting  parents' can  secure  the  chil- 
dren to  themselves,  except  by  a  fictitious  apprenticeship,  a  form  which, 
when  applied  to  children  in  the  cradle,  becomes  absurd  and  repulsive. 
It  is.  indeed,  so  inappropriate  in  every  case  that  it  is  rarely  resorted 
to.  The  consequence  is,  almost  invariably,  that  if  the  real  parents  of 
the  child  live  to  see  it  grow  to  an  age  of  usefulness  and  intelligence 
thev  are  certain  to  attempt  to  reclaim  it,  sometimes  through  the  mere 
selfishness  of  natural  affection,  but  more  commonly  from  base  and 
sordid  motives.  The  chances  of  an  adopting  parent  for  the  retention 
nf  the  child  upon  which,  perhaps,  his  whole  heart  is  centered,  are  there- 
fore in  the  inverse  ratio  to  the  degree  of  his  benevolence  in  its  selec- 
tion, and  of  liis  care  and  affection  in  its  training.  Benevolence  dic- 
tates a   choice  from   among  children   whose  parents  are  least  able  or 


01 


224.  Consent  to  Adoption  of  Children,  Abandoned  Child;  Child 
In  Orphan  Asylum.  A  legitimate  child  cannot  be  adopted  with- 
out the  consent  of  Its  parents  if  living,  nor  an  illegitimate  child 
without  the  consent  of  its  mother  if  living,  except  that  consent 
Is   not  necessary  in   the   following  cases   to  wit: 

1.  From  a  father  or  mother  if    deprived    of    civil    rights. 

2.  From  a  father  or  mother  adjudged  gxiilty  of  adultery  or 
cruelty  and   for  either   cause   divorced. 

3.  From  a  father  or  mother  who  has  been  judicially  deprived 
of  the  custody  and  control  of  such  child  on  the  ground  of  aban- 
donment, cruelty,  neglect  or  habitual  [Intemperance,  by]  order 
of  the  juvenile  court  declaring  said  child  to  be  free  from  the  cus- 
tody and  control  of  its  parents  as  provided  in  the  juvenile  court 
law  of  the  State  of  California,  approved  June  5,  1915,  and  any 
act   or  acts   superseding   or   amending   same.      [         1 

4.  From  a  father  or  mother  who  has  been  declared  either 
feeble-minded  or  insane  by  the  state  commission  in  lunacy  or 
by  three  competent  persons  appointed  by  said  commission;  pro- 
vided, that  if  so  declared  insane,  said  father  or  mother  shall  have 
subsequently  been  determined  to  be  incurably  insane  by  the 
superior  court  of  the  county  where   he  or  she  resides. 

5.  From  a  father  or  mother  of  any  child  deserted  by  its 
parents   without   provision    for   their   identification. 

6.  From  a  father  or  mother  of  any  child  relinquished  by  its 
parent  or  parents  for  the  purpose  of  adoption  expressed  in  writ- 
ing signed  and  acknowledged  by  such  parent  or  parents  before 
an  officer  authorized  to  take  acknowledgments,  or  signed  by  such 
parent  or  parents  before  two  subscribing  witnesses  and  acknowl- 
edged by  such  parent  or  parents  before  the  secretary  of  any 
organization  or  society  engaged  in  the  work  of  placing  dependent 
or  deserted  children  into  homes  in  this  state,  which  organiza- 
tion or  society  has  obtained  a  permit  therefor,  duly  executed  in 
writing,  from  the  state  board  of  charities  and  corrections,  and 
when  a  copy  of  this  relinquishment  shall  have  been  filed  with 
the  state  board  of  charities  and  corrections  prior  to  the  com- 
mencement of  any  adoption  proceedings   affecting  such  child. 

[Such  rellquishment,  when  reciting  that  the  person  making  it 
Is  entitled  to  the  sole  custody  of  the  minor,  shall,  when  duly 
acknowledged  before  such  officer  or  secretary,  be  prima  facie  evi- 
dence of  the  right  of  the  person  making  it  to  the  sole  custody 
of  the   child   and   such    persons   sole    right   to    relinquish.] 

Any  child,  the  consent  of  whose  parents  is  not  necessary  for 
its  adoption  within  the  meaning  of  this  section  maintained  by  or 
in  the  custody  of  any  orphan  asylum  within  this  state,  any 
charitable  organization  or  society  receiving  state  aid  or  receiving 
commitments  from  the  juvenile  court,  may  be  adopted  with  the 
consent  of  the  president  of  such  orphan  asylum,  charitable  organi- 
zation or  society,  or  with  the  consent  of  such  officer  as  may  be 
authorized  by  the  directors   or  managers  of  such  asylum,   organi- 


zation  or  society  to  consent  to  adoption  in  such  cases.  Any 
orphan  child  for  -whose  support  no  provision  has  been  made  by 
any  person  for  a  period  of  one  year;  but  who  has  been  main- 
tained during  said  year,  by  or  in  the  custody  of  any  orphan  asy- 
lum within  this  state,  any  charitable  organization  or  society 
receiving  state  aid  or  receiving  commitments  from  the  juvenile 
court  may  be  adopted  with  the  consent  of  the  president  of  such 
orphan  asylum,  charitable  organization  or  society  or  with  the 
consent  of  such  officer  as  may  be  authorized  by  the  directors  oi 
managers  of  such  asylum,  organization  or  society  to  consent  tc 
adoption  in  such  cases.  (In  effect  90  days  from  and  after  April 
29,    1921.      Stats.    1921,    Chap.    229.)  Civ.  Code,  1921, 


II 


224.  Consent  to  Adoption  of  Children;  Abando-ned  Child;  Child 
in  Orphan  Asylum.  A  legitimate  child  cannot  be  adopted  without 
the  consent  of  its  parents  if  living-,  nor  an  illegitimate  child  with- 
out the  consent  of  its  mother,  if  living,  except  that  consent  is 
not  necessary   [in  the  following  cases,  to  wit:] 

£1.]     From  a  father  or  mother   [if!   deprived  of  civil  rights. 

[2.  From  a  father  or  mother]  adjudged  guilty  of  adultery  or 
cruelty  and  for  either  cause  divorced. 

[3.  From  a  father  or  mother  who  has  been  jiidicially  deprived 
of  the  custody  and  control  of  such  child  on  the  ground  of  aban- 
donment, cruelty,  neglect  or  habitual  intemperance,  either  by 
order  of  the  juvenile  court  declaring  said  child  to-  be  free  from 
the  custody  and  control  of  its  parents  as  provided  in  the  juvenile 
court  law  of  the  State  of  California,  approved  June  5,  1915, 
and  any  act  or  acts  superseding  or  amending  same,  or  by  order 
of  the  Juvenile  court  of  the  county,  where  such  child  was  left 
in  the  care  and  custody  of  another  by  its  parent  or  parents, 
without  any  provisions  for  its  support,  for  the  period  of  one  year, 
determining  such  child  to  be  an  abandoned  child  as  defined  in 
said  juvenile  court  law;  provided,  however,  that  said  juvenile 
court  shall  never  make  sich  order  of  abandonment  without  first 
givin'3  notice  of  said  abandonment  proceeding  by  personal  service 
of  citation  or  other  court  process  on  the  parent  or  pare-its  or 
person  having  the  custody  of  such  child  residing  within  the 
state,  if  their  residence  Is  known,  and  also  such  other  or  further 
notice  to  said  parent  or  parents  or  person  having  the  custody 
of  such  chid,  or  other  person  or  persons  as  the  court  may  re- 
quire,   or    by    order   of    any   other   court    of    competent    jurisdict'on. 

[4.  From  a  father  or  mother  who  has  been  declared  either 
feeble-minded  or  insane  by  the  state  commission  in  lunacy  or 
by  three  competent  persons  appointed  by  said  comm'sp'on;  pro- 
vided, that  if  so  declared  insane,  said  father  or  mother  shall 
have  subsequently  been  determined  to  be  incurably  insane  by 
the    superior   court    of    the    county   where    he    or   she    resides. 

[From  a  father  or  mother  of  any  child  deserted  by  its  parents 
w  thout    prevision    for   thoir    idenfficat'on. 

(From  a  father  or  mother  of  any  child  relinquished  by  its 
parent  or  parents  for  the  purpose  of  adoption  expressed  in  writ- 
In)  signed  and  acknowledged  by  such  parent  or  parents  before 
an  officer  authorized  to  take  acknowledgments,  or  signed  by 
svch  parent  or  parents  before  two  subscribing  witnesses  and 
ackrowledged  by  such  parent  or  parents  before  the  secretary 
of  any  organization  or  society  engaged  in  the  work  of  placing 
d^prndent  or  deserted  children  into  homes  In  this  state,  which 
organization  or  society  has  obtained  a  permit  therefor,  duly 
executed  in  writing,  from  the  state  board  of  charities  and  cor- 
rections, and  when  a  copy  of  this  relinquishment  shall  have 
been     filed     with     the     state     board     of    charities     and     corrections 


prior    to    the    commencement    of    any    adoption    proceedings    affect- 
ing   such    child. 

I  Any  child,  the  consent  of  whose  parents  Is  not  necessary  for 
its  adoption]  within  the  meaning-  of  this  section  maintained  by 
or  in  tlie  custody  of  any  orplian  asylum  within  this  state,  any 
chai-itable  organization  or  soeietj^  receiving  state  aid  or  receiv- 
ing commitments  from  the  juvenile  court,  may  be  adopted  with 
the  consent  of  the  [president]  of  such  orphan  asylum,  charitable 
organization  or  society,  [or  with  the  consent  o-f  such  officer  as 
may  be  authorized  by  the  directors  or  managers  of  such  asylum, 
organization  or  society  to  consent  to  ado-ption  in  such  cases.] 
Any  orphan  child  for  whose  support  no  provision  has  been  made 
by  any  person  for  a  period  of  one  year,  but  who  has  been 
maintained  during  said  year,  by  or  in  the  custody  of  any  orphan 
asylum  within  this  state,  any  charitable  organization  or  society 
receiving  state  aid  or  receiving  commitmentsi  from  the  juvenile 
court  may  be  adopted  with  the  consent  of  the  [president]  of 
such  orphan  asylum,  charitable  organization  or  society  [or  with 
the  consent  of  such  officer  as  may  be  authorized  by  the  directors 
or  managers  of  such  asylum,  organizaticn  or  society  to  consent 
to  adoption  in  such  cases.]  (In  effect  90  days  from  and  aftei 
April   27,    1017.     Stats.    1017,    Chap.    55S.)  Civ.    Code,    1917. 


65  CHILDREN    BY   ADOPTION.  §  224 

willing  to  take  care  of  them.  To  relieve  a  child  from  a  cruel  and 
heartless  parent  is  a  greater  mercy  than  to  take  even  an  orphan.  Yet 
these  are  the  parents  who  are,  of  all  others,  most  likely  to  reclaim  the 
child  as  soon  as  any  money  can  be  made  out  of  it.  Affection  will  give 
the  child  such  a  training  as  will  develop  its  beauty  and  intelligence  to 
the  highest  degree.  Yet  every  grace  of  the  child  is  but  a  premium 
upon  the  extortion  of  its  heartless  parents.  This  is  not  mere  theory. 
Facts  within  the  knowledge  of  almost  every  one  justify  these  state- 
ments. There  are  very  many  childless  parents  who  would  gladly  adopt 
children,  but  for  their  well-founded  fears  that  they  could  never  hold 
them  securely." 

§  222.  Who  may  adopt.  The  person  adopting  a  child  must 
be  at  least  ten  years  older  than  the  person  adopted.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  195.] 

Legislation  §  222.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  108;  Stats.  1869-70,  p.  530,  §  1),  and  then  read:  "The 
person  adopting  a  child  must  be  at  least  fifteen  years  older  than  the 
person  adopted,  and  must  have  been  married,  and  if  a  woman,  must 
he  a  widow,  or  be  lawfully  divorced  from  her  husband  without  her 
fault." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  19.5. 

§  223.  Consent  of  wife  necessary.  A  married  man,  not 
lawfully  separated  from  his  wife,  cannot  adopt  a  child  with- 
out the  consent  of  his  wife,  nor  can  a  married  woman,  not 
thus  separated  from  her  husband,  without  his  consent,  pro- 
vided the  husband  or  wife,  not  consenting,  is  capable  of  giv- 
ing such  consent.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  195.] 

Legislation  §  223.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §109;  Stats.  1869-70,  p.  5.30,  §  2),  and  then  read:  "A 
married  man,  not  lawfully  separated  from  his  wife,  cannot  adopt  a 
child  without  the  consent  of  his  wife." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  195. 

§  224.  Consent  to  adoption  of  children.  Abandoned  child. 
Child  in  orphan  asylum.  A  legitimate  child  cannot  be  adopted 
without  the  consent  of  its  parents,  if  living;  nor  an  illegiti- 
mate child  without  the  consent  of  its  mother,  if  living;  ex- 
cept that  consent  is  not  necessary  from  a  father  or  mother 
deprived  of  civil  rights,  or  adjudged  guilty  of  adultery  or 
cruelty,  and  for  either  cause  divorced,  or  adjudged  to  be 
habitually  intemperate  in  the  use  of  intoxicants,  or  who  has- 
been  judicially  deprived  of  the  custody  of  the  child  on  ac- 
count of  cruelty  or  neglect.  Neither  is  consent  of  any  parent 
necessary  in  case  of  any  abandoned  child.  Any  child  deserted 
by  its  parents  without  provision  for  their  identification,  or 
relinquished  by  its  parent  or  parents  for  the  purpose  of  adop- 
tion expressed  in  writing  signed  and  acknowledged  by  such 
parent   or  parents  before   an   officer   authorized  to   take   ac- 

Civ.  Code — 5 


§  224  CIVIL  CODE.  66 

knowledgments,  or  before  the  secretary  of  any  organization 
or  society  engaged  in  the  work  of  placing  dependent  or  de- 
serted children  into  homes  in  this  state,  which  organization  or 
society  has  obtained  a  permit  therefor,  duly  executed  in  writ- 
ing, from  the  state  board  of  charities  and  corrections,  shall 
from  the  date  of  such  act  of  desertion  or  of  such  relinquish- 
ment be  deemed  to  be  an  abandoned  child  within  the  meaning 
of  .this  section.  Any  child  left  in  the  care  and  custody  of  an- 
other by  its  parent  or  parents,  without  any  provision  for  its 
support,  for  the  period  of  one  year,  may  after  such  notice  to 
the  parent  or  parents  residing  within  the  state  and  to  such 
other  relatives  of  said  child  residing  within  the  county  as  the 
court  shall  require,  be  determined  by  order  of  the  juvenile 
court  of  the  county  in  which  said  child  was  so  left  to  be  an 
abandoned  child  within  the  terms  of  this  section.  Any  aban- 
doned child  within  the  meaning  of  this  section,  or  any  child 
whose  parent  or  parents  have  been  judicially  deprived  of  its 
custody  on  account  of  cruelty  or  neglect,  maintained  by  or  in 
the  custody  of  any  orphan  asylum  within  this  state,  any 
charitable  organization  or  society  receiving  state  aid  or  re- 
ceiving commitments  from  the  juvenile  court,  may  be  adopted 
with  the  consent  of  the  managers  of  such  orphan  asylum, 
charitable  organization  or  society.  Any  orphan  child  for 
whose  support  no  provision  has  been  made  by  any  person  for 
a  period  of  one  year,  but  who  has  been  maintained  during  said 
year  by  or  in  the  custody  of  any  orphan  asylum  within  this 
state,  any  charitable  organization  or  society  receiving  state 
aid  or  receiving  commitments  from  the  juvenile  court,  may  be 
adopted  with  the  consent  of  the  managers  of  such  orphan 
asylum,  charitable  organization  or  society.  [Amendment  ap- 
proved 1913;  Stats.  1913,  p.  95.] 

Legislation  §  224.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §110;  Stats.  1869-70,  p.  530,  §  3),  and  then  read:  "A 
legitimate  child  cannot  be  adopted  without  the  consent  of  its  parents, 
if  living,  nor  an  illegitimate  child  without  the  consent  of  its  mother, 
if  living,  except  that  consent  is  not  necessary  from  a  father  or  mother 
deprived  of  civil  rights,  or  adjudged  guilty  of  adultery,  or  of  cruelty, 
and  for  either  cause  divorced,  or  adjudged  to  be  a  haldtual  drunkard, 
or  who  has  been  judicially  deprived  of  the  custody  of  the  child  on 
account  of  cruelty  or  neglect." 

2.  Amended  by  Stats.  1891,  p.  24,  adding  "neither  is  the  consent  of 
any  one  necessary  in  case  of  any  abandoned  child." 

3.  Amended  by  Stats.  1893,  p.  112,  (1)  omitting  the  words  inserted 
by  the  amendment  of  1891,  and  (2)  adding  "provided,  however,  that 
where  any  such  child,  being  a  half-orphan,  and  kept  and  maintained 
within  any  orphan  asylum  in  this  state  for  more  than  two  years,  may 
be  adopted  with  the  consent  of  the  managers  of  such  orphans'  home, 
without  the  consent  of  the  parent,  unless  such  parent  has  paid  toward 
the  expenses  of  the  maintenance  of  such  half-orphan  at  least  a  reason- 
able sum  during  the  said  time,  if  able  so  to  do.     And  where  the  parent 


67  CHILDREN    BY   ADOPTION.  §  226 

is  a  non-resident  of  this  state,  sueli  child  may  be  adopted  with  the  con- 
sent of  the  managers  of  such  home,  whenever  it  has  been  left  by  its 
parent  in  such  home  for  more  than  one  year,  whether  the  parent  has 
contributed  anything  to  its  support  or  not,  and  the  consent  of  the 
parent  of  such  half-orphan  is  not  necessary  to  its  adoption,  whenever 
the  managers  of  the  home  are  authorized  to  give  such  consent,  as 
herein  provided." 

4.  Amended  by  Stats.  1895,  p.  39,  inserting  "jieither  is  the  consent 
of  any  one  necessary  in  case  of  any  abandoned  child,"  after  "cruelty 
or  neglect." 

5.  Amendment  by  Stats.  1901,  p.  339;  unconstitutional.  See  note, 
§  4,  ante. 

6.  Amended  by  Stats.  1903,  p.  114,  adding  "Any  child  deserted  by 
both  parents,  or  left  in  the  care  and  custody  of  another  by  its  parent 
or  parents,  without  any  agreement  or  provision  for  its  support,  for 
the  period  of  one  year,  is  deemed  to  be  an  abandoned  child  within  the 
meaning  of  this  section." 

7.  Amended  by  Stats.  1907,  p.  331,  to. read:  "A  legitimate  child  can- 
not be  adopted  without  the  consent  of  its  parents,  if  living;  nor  an 
illegitimate  child  without  the  consent  of  its  mother,  if  living;  except, 
that  consent  is  not  necessary  from  a  father  or  mother  deprived  of  civil 
rights  or  adjudged  guilty  of  adultery  or  cruelty,  and  for  either  cause 
divorced,  or  adjudged  to  be  habitually  intemperate  in  the  use  of  in- 
toxicants, or  who  has  been  judicially  deprived  of  the  custody  of  the 
child  on  account  of  cruelty  or  neglect.  Neither  is  consent  of  any 
parent  necessary  in  case  of  any  abandoned  child;  provided,  however, 
that  anj^  such  child,  being  a  half-orphan,  and  kept  and  maintained  in 
any  orphan  asylum  in  this  state  for  more  than  two  years,  may  be 
adopted,  with  the  consent  of  the  manager  of  such  orphan's  home  with- 
out the  consent  of  the  parent  unless  such  parent  has  paid  toward  the 
expenses  of  maintenance  of  such  half-orphan  at  least  a  reasonable  sum 
during  the  said  time,  if  able  to  do  so.  Any  child  deserted  by  both 
parents  or  left  in  the  care  and  custody  of  another  by  its  parent  or 
parents,  without  any  agreement  or  provision  for  its  support,  for  the 
period  of  one  year,  is  deemed  to  be  an  abandoned  child  within  the 
meaning  of  this  section  and  where  the  i:iarent  is  a  non-resident  of  this 
state  such  child  may  be  adopted  with  the  consent  of  the  managers  of 
such  home  whenever  it  has  been  left  in  such  home  for  more  than  one 
year;  or  any  abandoned  child,  within  the  meaning  of  this  section,  if 
left  in  the  care  and  custody  of  another  person  for  one  year  or  more, 
may,  with  the  consent  of  the  district  attoruej^  of  the  county  wherein 
the  person  applying  to  adopt  such  child  is  a  resident,  be  adopted  by 
such  person." 

8.  Amended  by  Stats.  1911,  p.  899,  and  as  then  enacted  was  the  same 
as  the  amendment  of  1915,  except  that  in  the  amiendment  of  1915,  in 
the  third  sentence,  the  words  beginning  with  "or  before  the  secretary" 
and  down  to  and  including  the  words  "state  board  of  charities  and 
corrections,"  were  added. 

9.  Amended  by  Stats.  1913,  p.  95. 

§  225.     Consent  of  child.     The  consent  of  a  child, ^if  over  the 
age  of  twelve  years,  is  necessary  to  its  adoption. 

Legislation  §  225.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  111;  Stats.  1869-70,  p.  530,  §  3. 

§  226.     Proceeding's  on  adoption.     Any  person  desiring  to 
adopt  a  child  may,  for  that  purpose,  petition  the  superior  court 


§  227  CIVIL  CODE.  68 

of  the  county  in  which  the  petitioner  resides.  The  person 
adopting  a  child,  and  the  child  adopted,  and  the  other  persons, 
if  within  or  residents  of  said  county,  whose  consent  is  neces- 
sary, must  appear  before  the  court,  and  the  necessary  consent 
must  thereupon  be  signed  and  an  agreement  executed  by  the 
person  adopting,  to  the  effect  that  the  child  shall  be  adopted 
and  treated  in  all  respects  as  his  own  lawful  child  should  be 
treated.  If  the  persons  Avhose  consent  is  necessary  are  not 
within  or  are  not  residents  of  said  county,  then  their  written 
consent,  duly  proved  or  acknowledged,  according  to  sections 
eleven  hundred  and  eighty-two  and  eleven  hundred  and 
eighty-three,  must  be  filed  in  said  superior  court  at  the  time 
of  the  application  for  adoption.  [Amendment  approved 
1907;  Stats.  1907,  p.  329.] 

Legislation  §  226.  1.  Enacted  March  21.  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  112;  Stats.  1869-70,  p.  .530,  §  4),  and  then  read:  "The 
person  adopting  a  child,  and  the  child  adopted,  and  the  other  persons 
whose  consent  is  necessary,  must  appear  before  the  county  judge  of 
the  county  where  the  person  adopting  resides,  and  the  necessary  con- 
sent must  thereupon  be  signed,  and  an  agreement  be  executed  by  the 
person  adopting,  to  the  effect  that  the  child  shall  be  adopted,  and 
treated  in  all  respects  as  his  own  lawful  child  should  be  treated." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  70,  (1)  in  first  sentence, 
adding,  after  "other  persons,"  "if  within  or  residents  of  this  state"; 
and  (2)  .adding  a  second  sentence,  reading,  "If  the  persons  whose  con- 
sent is  necessary  are  not  within,  or  are  not  residents  of  this  state, 
then  their  written  consent,  duly  proved  or  acknowledged  according  to 
sections  eleven  hundred  and  eighty-two  and  eleven  hundred  and  eighty- 
three  of  this  code,  shall  be  filed  in  said  county  court  at  the  time  of 
the  application  for  adoption." 

3.  Amended  by  Code  Amdts.  1880,  p.  4,  substituting  (1)  "judge  of 
the  superior  court"  for  "county  judge,"  and  (2)  "superior"  for  "county" 
before  "court." 

4.  Amendment  by  Stats.  1901,  p.  339;  unconstitutional.     See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  55,  to  read  as  at  present,  except  for 
the  changes  made  in  1907;  the  code  commissioner  saying,  "The  first 
two  sentences  of  this  section  have  been  recast  with  the  design  of 
making  the  proceedings  for  adoption  judicial,  thereby  supporting  it  by 
the  same  intendments  which  are  indulged  in  favor  of  other  proceed- 
ings conducted  in  courts  of  record." 

6.  Amended  by  Stats.  1907,  p.  329,  substituting  "said  county"  for 
"this  state,"  in  both  instances. 

§227.  Judge's  order;  where  filed.  The  court  must  examine 
all  persons  appearing  liefore  it  pursuant  to  the  last  section, 
each  separately,  and  if  satisfied  that  the  interests  of  the  child 
will  be  promoted  by  the  adoption,  it  must  make  an  order  de- 
claring that  the  child  shall  thenceforth  be  regarded  and  treated 
in  all  respects  as  the  child  of  the  person  adopting.  The  peti- 
tion, agreement,  consent,  and  order  must  be  filed  and  registered 
in  the  office  of  the  county  clerk  in  the  same  manner  as  papers 


69  "  CHILDREN   BY  ADOPTION.  §  230 

in  other  special  proceedings.     [Amendment   approved   1905 ; 
Stats.   1905,   p.   556.] 

Legislation  §  227.  1.  Enaoted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  113;  Stats.  1869-70,  p.  530,  §  5. 

2.  Amendment  by  Stats.  1901,  p.  340;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  55G,  (1)  substituting  (a)  "court"  for 
"judge"  before  "must  examine,"  (b)  "it"  for  "him"  before  "pursuant," 
(c)  "it"  for  "he"  before  "must";  (2)  adding  the  last  sentence;  the  code 
commissioner  saying,  "The  change  consists  in  the  substitution  of  the 
word  'court'  for  the  word  'judge,'  and  in  the  addition  of  the  last  sen- 
tence, said  sentence  being  added  for  the  purpose  of  making  it  clear 
that  the  papers  constituting  part  of  the  adoption,  or  of  the  proceeding 
therefor,  must  be  filed  and  preserved  by  the  clerk." 

§  228.  Effect  of  adoption.  A  child,  when  adopted,  may  take 
the  family  name  of  the  person  adopting.  After  adoption,  the 
two  shall  sustain  towards  each  other  the  legal  relation  of 
parent  and  child,  and  have  all  the  rights  and  be  subject  to 
all  the  duties  of  that  relation.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  195.] 

Legislation  §  228.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  114;  Stats.  1869-70,  p.  530,  §  6),  and  then  read:  "A 
child,  when  adopted,  takes  the  name  of  the  person  adopting,  and  the 
two  thenceforth  sustain  towards  each  other  the  legal  relation  of  parent 
and  child,  and  have  all  the  right  and  are  subject  to  all  the  duties  of 
that  relation." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  195. 

§  229.  Effect  on  former  relations  of  child.  The  parents  of 
an  adopted  child  are,  from  the  time  of  the  adoption,  relieved 
of  all  parental  duties  towards,  and  all  responsibility  for,  the 
child  so  adopted,  and  have  no  right  over  it. 

Legislation  §  229.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  115;  Stats.  1869-70,  p.  530,  §  7. 

§  230.  Adoption  of  illegitimate  child.  The  father  of  an  ille- 
gitimate child,  by  publicly  acknowledging  it  as  his  own, 
receiving  it  as  such,  with  the  consent  of  his  wife,  if  he  is 
married,  into  his  family,  and  otherwise  treating  it  as  if  it 
were  a  legitimate  child,  thereby  adopts  it  as  such;  and  such 
child  is  thereupon  deemed  for  all  purposes  legitimate  from 
the  time  of  its  birth.  The  foregoing  provisions  of  this  chapter 
do  not  apply  to  such  an  adoption. 

Adoption  of  illegitimate  children:  See  post,  §  1387. 
Legislation  §  230.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §116;  Stats.  1869-70,  p.  530,  §  9.  The  code  commis- 
sioners say:  "This  provision,  like  the  rest,  is  new,  but  is  so  manifestly 
just,  and  the  present  state  of  the  law  is  so  unmerciful  to  innocent  chil- 
dren, that  it  is  presumed  that  no  objection  will  be  made  to  the  change. 
The  seducer  can  make  reparation  to  the  mother  of  his  child,  though 
she  is  more  or  less  culpable,  but  can  at  present  make  absolutely  none 


§  238  CIVIL  CODE.  '         70 

to  the  child,  though,  perfectly  innocent.  By  the  law  of  France,  and  of 
almost  every  European  nation,  and  in  this  country,  b}^  the  law  of 
Maine,  Vermont,  Massachusetts,  Connecticut,  Ohio,  Illinois,  Indiana, 
Maryland,  Virginia,  Georgia,  Alabama,  Mississippi,  Louisiana,  Ken- 
tucky and  Missouri,  a  child  is  legitimatized  by  the  marriage  of  its 
parents  after  its  birth.  Privacy  is  an  indispensable  element  of  such 
an  adoption.  To  compel  the  father  to  appear  before  a  judge,  or  in  any 
way  to  place  the  matter  upon  record,  would  brand  the  child  with  the 
very  stigma  from  which  a  repentant  father  would  desire  to  save  it." 


TITLE  III. 
Guardian  and  Ward. 

§  236.  Guardian,    what. 

§  237.  Ward,  what. 

§  238.  Kinds  of  guardians. 

§  239.  General  guardian,  what. 

§  240.  Special  guardian,  what. 

§241.  Guardian;  appointment  by  will,  etc. 

§  242.  No  person  guardian  of  estate  without  appointment.     [Kepealed.] 

§  243.  Appointment  by  court.      [Repealed.] 

§  244.  Same.     [Repealed.] 

§  245.  Jurisdiction.     [Repealed.] 

§  246.  Rules  for  awarding  custody  of  minor. 

§  247.  Powers  of  guardian  appointed  by  court.     [Repealed.] 

§  248.  Duties  of  guardian  of  the  person.       [Repealed.] 

§  249.  Duties  of  guardian  of  estate.     [Repealed.] 

§  250.  Relation  confidential. 

§  251.  Guardian  under  direction  of  court. 

§  252.  Death  of  a  joint  guardian. 

§  253.  Removal  of  guardian. 

§  254.  Guardian  appointed  by  parent,  how  superseded. 

§  255.  Suspension  of  power  of  guardian. 

§  256.  Release  by  ward. 

§  257.  Guardian's    discharge. 

§  258.  Insane  persons.     [Repealed.] 

§  236.     Guardian,  what.     A  guardian  is  a  person  appointed 
to  take  care  of  the  person  or  property  of  another. 

Legislation  §  236.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  117. 

§  237.     Ward,  what.     The  person  over  whom  or  over  whose 
property  a  guardian  is  appointed,  is  called  his  ward. 

Legislation  §  237.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  118. 

§  238.     Kinds  of  guardians.     Guardians  are  either : 

1.  General;   or, 

2.  Special. 

Testamentary  guardians:  See  post,  §  241. 
Guardians  ad  litem:   See  Code  Civ.  Proc,  §§  372,  373. 
Legislation  §  238.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  119. 


I 


242.  [New.]  Appointment  by  Will  or  Deed  of  Guardians  for 
Person  and  Estate  of  Insane  or  Incompetent  Persons.  A  guardian 
of  the  persun  or  estate,  or  of  both,  of  an  insane  or  incompetent 
person  may  be  appointed  by  will  or  deed,  to  take  effect  upon  the 
death  of  the  person  appointing; 

1.  If  the  in!?ane  or  incompetent  person  be  unmarried,  or  be  a 
person  whose  marriage  has  been  annulled  or  dissiolved  by  death 
or  divorce,  by  the  father,  with  the  written  consent  of  the  mother, 
or  by  either  parent  if  the  other  be  dead   or  incapable  of  consent. 

2.  If  tlie  insane  or  incompetent  person  be  married  and  a  person 
who.se  marriage  has  not  been  annulled  or  dissolved  by  divotce, 
then  by  the  spouse.  (In  effect  90  days  from  and  after  April  27, 
l!tl7.     Stats.    1917,   Chap.   511.)  Civ.   Code,  1917. 


231        [New.]       Actions    to    Determine    Parental    Relation.      An 

action  may  be  brought  for  the  purpose  of  having  declared  the 
existence  or  nonexistence  between  the  parties  of  the  relation  of 
parent  and  child,  by  birth  or  adoption.  (In  effect  90  days  from 
and  after  April  29,  1921.     Stats.  1921.  Chap.  136.)       Cv.  Code,  1921. 


71  GUARDIAN  AND  WARD.  §  243 

§239.  General  guardian,  what.  A  general  guardian  is  a 
guardian  of  the  person  or  of  all  the  property  of  the  ward 
within  this  state,  or  of  both. 

Legislation  §  239.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

K  Y.  Civ.  Code,  §  120. 

§240.  Special  guardian,  what.  Every  other  is  a  special 
guardian. 

Legislation  §  240.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  121. 

§241.  Guardian;  appointment  by  will,  etc.  A  guardian  of 
the  person  or  estate,  or  of  both,  of  a  child  born,  or  likely  to 
be  born,  may  be  appointed  by  will  or  by  deed,  to  take  effect 
upon  the  death  of  the  parent  appointing : 

One.  If  the  child  be  legitimate,  by  the  father,  with  the  writ- 
ten consent  of  the  mother;  or  by  either  parent,  if  the  other 
be  dead  or  incapable  of  consent. 

Two.     If  the  child  be  illegitimate,  by  the  mother.     [Amend- 
ment approved   1874;  Code  Amdts.  1873-74,  p.   195.] 
Bond  of  testamentary  guardian:   Code  Civ.  Proc,  §  1758. 
Legislation  §  241.     1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  122. 

2.  Amended   by   Code   Amdts.   1873-74,   p.   195,    (1)    in   introductory 

paragraph,  inserting  "or  estate,  or  of  both,"  after  "person,"  and   (2) 

in  subd.  1,  substituting  "be"  for  "is." 

§  242.     No  person  guardian  of  estate  without  appointijaent. 

[Repealed  1905;  Stats.  1905,  p.  728.] 

Legislation  §  242.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  123. 

2.  Eepeal  by  Stats.  1901,  p.  340;  unconstitutional:  See  note,  §  4,  ante. 

3.  Kepealed  by  Stats.  1905,  p.  728;  the  code  commissioner  saying  in 
his  note  to  §§  242,  243,  244,  245,  "The  provisions  of  the  above  sections, 
relating  to  guardian  and  ward,  are  controlled  by  §§  1747,  1758,  and 
1793  of  the  Code  of  Civil  Procedure.  They  are,  therefore,  unnecessary 
and  misleading." 

§  243.  Appointment  by  court.  [Repealed  1905 ;  Stats.  1905, 
p.  728.] 

Judicial  appointment  of  guardian  of  minor:  See  Code  Civ.  Proc, 
§  1747. 

Judicial  appointment  of  guardian  of  insane  or  incompetent  persons: 
See  Code  Civ.  Proc,  §  1763. 

Act  providing  for  appointment  of  guardian  of  orphans:  See  post,  Ap- 
pendix, tit.  "Infancy." 

Legislation  §  243.     1.  Enacted  March  21,1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  196. 

3.  Amended  by  Code  Amdts.  1880,  p.  4. 

4.  Eepeal  by  Stats.  1901,  p.  340;  unconstitutional.  See  note,  §  4, 
ante. 

5.  Eepealed  by  Stats.  1905,  p.  728.  See  ante.  Legislation  §  242,  for 
code  commissioner's   note. 


§  246  civrL  CODE.  72 

§244.     Same.     [Repealed  1905;  Stats.  1905,  p.  728.] 

Nonresident  wards.     Appointment  of  guardian:   See  Code  Civ.  Proc, 
§§  1793  et  seq. 
Legislation  §  244.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1880,  p.  4. 

3.  Repeal    by    Stats.    1901,    p.    340;    unconstitutional.     See    note,  §  4, 
ante. 

4.  Repealed  by  Stats.  1905,  p.  728.     See  ante,  Legislation  §  242,  for 
code  commissioner's  note. 

§245.     Jurisdiction.     [Repealed  1905;  Stats.  1905,  p.  728.] 
Control  over  guardian:   See  Code  Civ.  Proc,  §  1771. 
Legislation  §  245.     1.  Enacted  March  21,  1872. 

2.  Repeal    by    Stats.    1901,   p.    340;    unconstitutional.     See    note,  §  4, 
ante. 

3.  Repealed  by  Stats.  1905,  p.  728.     See  ante.  Legislation,  §  242,  for 
code  commissioner's  note. 

§  246.  Rules  for  awarding  custody  of  minor.  In  awarding 
the  custody  of  a  minor,  or  in  appointing  a  general  guardian, 
the  court  or  officer  is  to  be  guided  by  the  following  considera- 
tions : 

1.  By  what  appears  to  be  for  the  best  interest  of  the  child  in 
respect  to  its  temporal  and  its  mental  and  moral  welfare ;  and 
if  the  child  is  of  a  sufficient  age  to  form  an  intelligent  pref- 
erence, the  court  may  consider  that  preference  in  determining 
the  question ; 

2.  As  between  parents  adversely  claiming  the  custody  or 
guardianship,  neither  parent  is  entitled  to  it  as  of  right;  but 
other  things  being  equal,  if  the  child  is  of  tender  years,  it 
should  be  given  to  the  mother ;  if  it  is  of  an  age  to  require  edu- 
cation and  preparation  for  labor  and  business,  then  to  the 
father ; 

3.  Of  two  persons  equally  entitled  to  the  custody  in  other 
respects,  preference  is  to  be  given  as  follows : 

(1)  To  a  parent; 

(2)  To  one  w^ho  was  indicated  by  the  wishes  of  a  deceased 
parent ; 

(3)  To  one  who  already  stands  in  the  position  of  a  trustee 
of  a  fund  to  be  applied  to  the  child's  support; 

(4)  To  a  relative. 

4.  Any  parent  who  knoAvinglyor  willfully  abandons,  or  hav- 
ing the  ability  so  to  do,  fails  to  maintain  his  minor  child  under 
the  age  of  fourteen  years,  forfeits  the  guardianship  of  such 
child ;  and  any  parent  or  guardian  who  knowingly  permits  his 
child  or  Avard  to  remain  for  the  space  of  one  year  in  any 
orphan  asylum  of  this  state,  wherein  such  child  is  supported 
by  charity,  and  who,  during  such  period,  fails  to  give  notice 
in  writing  to  the  managers  or  officers  of  such  asvlum  that  he 


73  GUARDIAN  AND  WARD.  §  249 

is  such  parent  or  guardian,  abandons  and  forever  forfeits  all 
right  to  the  guardianship,  care,  custody,  and  control  of  such 
child.  The  officers  and  managers  of  any  orphan  asylum  hav^ 
ing  any  such  abandoned  child  in  its  care  have  the  preferred 
right  to  the  guardianship  of  such  child.  [Amendment  ap- 
proved 1905;  Stats.  1905,  p.  728.] 

Custody  of  children  generally.  Pending  divorce:  See  ante,  §  138. 
Without  divorce:   See  ante,  §§  199,  214. 

Custody  of  child  where  parents  separated:   See  ante,  §  214. 

Orphan  and  abandoned  children:  See  General  Laws,  Acts  2594-2597; 
post,  Appendix,  tit.  "Infancy." 

Legislation  §  246.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  127. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  196,  (1)  in  subd.  One, 
changing  "is"  to  "be"  after  "if  the  child";  (2)  in  subd.  Two,  changing 
"is"  to  "be"  after  "if  the  child"  and  after  "if  it";  (3)  changing  the 
order  of  preference  as  it  now  stands  in  subd.  Three  from  "First.  To 
a  parent.  Second.  To  a  relative.  Third.  To  one  who  was  indicated 
by  the  wishes  of  a  deceased  parent.  Fourth.  To  one  who  already 
stands  in  the  position  of  a  trustee  of  a  fund  to  be  applied  to  the  child's 
support";  (4)  omitting  par.  Fifth  of  subd.  Three,  which  read:  "To  one 
of  good  moral  standing." 

3.  Amendment  by  Stats.  1901,  p.  340;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  728,  adding  subd.  4;  the  code  com- 
missioner saying,  "The  change  consists  in  the  addition  of  subd.  4, 
which  is  a  codification  of  the  statute  of  1873-74,  p.  297,  relating  to 
the  care  of  orphan  and  abandoned  children.  The  penal  provisions  of 
that  act  are,  however,  omitted,  as  they  do  not  properly  find  a  place 
in  this  code." 

247.     Powers  of  guardian  appointed  by  court.     [Repealed 
1905;  Stats.  1905,  p.  729.] 

Legislation     247.     1.  Enacted  March  21,   1872. 

2.  Eepeal  by  Stats.  1901,  p.  341;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  729;  the  code  commissioner  saying, 
"The  subject-matter  of  this  section  is  provided  for  in  §  1753  of  the 
Code  of  Civil  Procedure,  and  the  section  is,  therefore,  repealed." 

§  248.     Duties  of  guardian  of  the  person.     [Repealed  1905 ; 
Stats.  1905,  p.  729.] 
Compare  §  251,  post. 
Legislation  §  248.     1.  Enacted  March  21,  1872. 

2.  Eepeal  by  Stats.  1901,  p.  341;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  729;  the  code  commissioner  saying 
in  his  note  to  §§  248,  249,  "The  provisions  of  these  sections  are  in- 
cluded in  §§  1753  and  1770  of  the  Code  of  Civil  Procedure." 

249.     Duties  of  guardian  of  estate.     [Repealed  1905;  Stats. 
1905,  p.  729.] 

Sale  of  ward's  estate:   See  Code  Civ.  Proc.  §§  1777  et  seq. 
Guardian  using  principal  as  well   as  income:   See  Code   Civ.   Proc, 
§  1770. 


§  254  CIVIL,  CODE.  74 

Legislation  §  249.     1.  Enacted  March  21.  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  197. 

3.  Amended  by  Code  Amdts.  1880,  p.  5. 

4.  Eepeal   by    Stats.    1901,   p.    341;    unconstitutional.     See   note,  §  4, 
ante. 

5.  Eepealed  by  Stats.  1905,  p.  729.     See  ante,  Legislation  §  248,  for 
code  commissioner's  note. 

§  250.  Relation  confidential.  The  relation  of  guardian  and 
ward  is  confidential,  and  is  subject  to  the  provisions  of  the  title 
on  trust. 

Trusts:   See  post,  §§  2215  et  seq. 

Legislation  §  250.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  131. 

§  251.  Guardian  under  direction  of  court.  In  the  manage- 
ment and  disposition  of  the  person  or  property  committed  to 
him,  a  guardian  may  be  regulated  and  controlled  by  the  court. 

Legislation  §  251.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  132. 

§  252.     Death  of  a  joint  guardian.     On  the  death  of  one  of 
two  or  more  joint  guardians,  the  power  continues  to  the  sur- 
vivor until  a  further  appointment  is  made  by  the  court. 
Survival  of  trust:  See  post,  §  228S. 

Legislation  §  252.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  133. 

§  253.  Removal  of  g'uardian.  A  guardian  may  be  removed 
by  the  superior  court  for  any  of  the  folloAving  causes : 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its  [his]  duties; 

3.  For  incapacity  to  perform  its  [his]  duties; 

4.  For  gross  immorality ; 

5.  For  having  an  interest  adverse  to  the  faithful  perform- 
ance of  his  duties ; 

6.  For  removal  from  the  state : 

7.  In  the  case  of  a  guardian  of  the  i:>roperty,  for  insolvency : 
or, 

8.  "When  it  is  no  longer  proper  that  the  ward  should  be  un- 
der guardianship.  [Amendment  approved  1880 ;  Code  Amdts. 
1880,  p.  5.] 

Removal  of  guardian:   See  Code  Civ.  Proc.  §  ISOl. 

Legislation  §  253.  1.  Enacted  March  21, 1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code.  §  134. 

2.  Amended  by  Code  Amdts.  1880,  p.  5,  substituting  "superior"  for 
"probate"  before  "court." 

§  254.  Guardian  appointed  by  parent,  how^  superseded.  Tlie 
power  of  a  guardian  appointed  by  a  parent  is  superseded : 


75  GUARDIAN  AND  WARD.  §  258 

1.  By  his  removal,  as  provided  by  section  two  hundred  and 
fifty-three ; 

2.  By  the  solemnized  marriage  of  the  ward ;  or, 

3.  By  the  ward's  attaining  majority. 

Marriage  of  ward  terminates  guardianship:   Code  Civ.  Proc,  §  1802. 
Legislation  §  254.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  135. 

§  255.  Suspension  of  power  of  guardian.  The  power  of  a 
guardian  appointed  by  a  court,  is  suspended  only : 

One.     By  order  of  the  court ;  or, 

Two.  If  the  appointment  was  made  solely  because  of  the 
ward's  minority,  by  his  attaining  majority;  or, 

Three.  The  guardianship  over  the  person  of  the  ward,  by 
the  marriage  of  the  ward.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  197.] 

Marriage  of  ward  terminates  guardianship.  Code  Civ.  Proc,  §  1802. 
Legislation  §  255.     1.  Enacted    March    21,    1872;    based    on    Field's 

Draft,  N.  Y.  Civ.  Code,  §  136. 

2,  Amended  by  Code  Amdts.  1873-74,  p.  197,  adding  subd.  3. 

3.  Eepeal  by  Stats.  1901,  p.  341;  unconstitutional.     See  note,  §  4,  ante. 

§  256.  Release  by  ward.  After  a  ward  has  come  to  his 
majority,  he  may  settle  accounts  with  his  guardian,  and  give 
him  a  release,  which  is  valid  if  obtained  fairly  and  without 
undue  influence. 

Legislation  §  256.     Enacted  March  21.  1872;  baged  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  137. 

§  257.     Guardian's  discharge.     A  guardian  appointed  by  a 

court  is  not  entitled  to  his  discharge  until  one  year  after  the 
ward's  majority. 

Resignation  of   guardian:  See  Code  Civ.  Proc,  §  1801. 

Legislation  §  257.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  138. 

§  258.     Insane  persons.     [Repealed  1905 ;  Stats.  1905,  p.  729.] 
Guardianship  of  lunatic:   See  Code  Civ.  Proc,  §  1763. 
Legislation  §  258.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1880,  p.  5. 

3.  Eepeal  by  Stats.  1901,  p.  341;  unconstitutional.     See  note,  §  4,  ante. 

4.  Repealed  by  Stats.  1905,  p.  729;  the  code  commissioner  saying, 
"This  section,  which  prescribed  the  mode  of  placing  insane  persons  in 
the  asylum,  has  been  supplanted  by  later  legislation  (see  statute  of 
1897,  p.  311,  relative  to  the  establishment  of  a  lunacy  commission,  and 
Political  Code.  §§  2136  to  2199),  and  is,  therefore,  repealed." 


§  264  CIVIL  CODE.  76 

TITLP]  IV. 
Master  and  Apprentice. 

§  264.     Minors,  when  and  to  whom  may  be  bound  as  apprentices. 

§  265.     Persons  who  may  bind  minor  with  his  consent. 

§  266.  Indenture  of  apprenticeship,  how  to  be  executed  and  what  to  con- 
tain. 

§  267.     Jury  trial  as  to  facts  of  incapacity,  etc.,  of  parent. 

§  268.     Apprenticing  of  poor  and  homeless  minors. 

§  269.  Master  to  keep  apprentice  within  the  state,  to  deliver  him  money 
and  other  property  therein. 

§  270.     Duty  to  inquire  into  the  treatment  of  minor  apprentices. 

§  271.     Hearing  of  complaints  of  apprentices. 

§  272.     Power  of  court  to  discharge  apprentice  from  apprenticeship. 

§  273.     Liability  of  master  for  breach  of  his  covenant. 

§  274.  Liability  of,  and  proceedings  against,  apprentice  guilty  of  gross 
misbehavior. 

§  275.     Enticing  away   apprentices  and  liability  for. 

§  276.     Eelease  of  master  removing  out  of  state  or  quitting  business. 

Legislation  Title  IV.  1.  Enacted  March  21,  1872,  and  was  then  en- 
titled "Master  and  Servant,"  consisting  of  §§  264-276.  The  code  com- 
missioners say:  "This  title  (Master  and  Servant),  is  a  literal  copy  of 
the  Statutes  of  1858,  save  the  last  two  sections,'  which  provided  for 
special  remedies."  The  code  commissioners  say  nothing  of  §  13  of 
this  act,  which  read,  "Nothing  in  this  act  shall  concern,  or  in  any  man- 
ner affect  or  relate  to  Indians;  and  every  person  having  one  half  or 
more  of  Indian  blood  shall  be  deemed  an  Indian  within  the  provisions 
of  this  act."  Th«  original  code  sections  are  printed  in  their  numerical 
order  under  the  title  Legislation  of  the  respective  sections,  regardless 
of  the  amendment  of  1905.  It  should  be  noted  that,  besides  §  13, 
quoted  supra,  there  were  three  sections,  not  two,  of  the  act  of  1858, 
not  adopted  in  the  code,  the  marginal  titles  of  which  read:  (§  15) 
"Application  for  annulling  [contract];  (§16)  "Punishment  for  flying 
[sic]  from  service";  (§  17)  "Accomplices." 

2.  Eepealed  and  a  new  title  substituted  by  Stats.  1905,  p.  560,  the 
title  of  the  act  reading,  "An  Act  to  repeal  Title  FV  of  Part  III  of 
Division  First  of  the  Civil  Code  and  each  and  every  section  of  said 
title,  and  to  substitute  a  new  Title  FV  to  take  the  place  thereof  in 
said  code,  relating  to  masters  and  apprentices."  See  infra,  Legislation 
§  264,  for  code  commissioner's  note,  and  also  tit.  "Legislation,"  under 
the  respective  sections  of  the  title. 

§  264.  Minors,  when  and  to  whom  may  be  bound  as  ap- 
prentices. Every  minor  of  the  ag:e  of  fourteen  years  or  up- 
wards may  be  bound  by  -indenture  as  an  apprentice  to  any 
mechanical  trade  or  art  or  the  occupation  of  farming:  to  the 
age  of  eighteen  years,  if  a  female,  or  to  the  age  of  twenty-one 
years,  if  a  male. 

Aiding  apprentice  to  run  away,  a  misdemeanor:  Pen.  Code,  §  646. 
Master  and  servant  generally:  See  post,  §  2009. 

Legislation  264.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §1),  and  then  read:  "Every  minor,  with  the  consent  of  the 
persons  or  officers  hereinafter  mentioned,  may,  of  his  own  free  will. 


77  MASTER  AND  APPRENTICE.  §  265 

bind  himself,  in  writing,  to  serve  as  clerk,  apprentice,  or  servant,  in 
any  profession,  trade,  or  employment,  during  his  minority;  and  such 
binding  shall  be  as  valid  and  effectual  as  if  such  minor  was  of  full 
age  at  the  time  of  making  the  engagement." 

2.  Amendment  by  Stats.  1901,  p.  341;  unconstitutional.  Sen;  note,  §  1, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  560. 

4.  Ee-enacted  by  Stats.  1905,  p.  560;  the  code  commissioner  saying, 
in  his  note  to  §§  264,  265,  266,  267,  268,  269,  270,  271,  272,  273,  274, 
275,  276,  "These  sections  codify  the  statute  of  1875-76,  p.  842,  relative 
to  masters  and  apprentices,  as  amended  in  1880,  p.  28,  the  old  chapter 
being  repealed  and  the  provisions  of  the  acts  above  referred  to  sub- 
stituted in  place  thereof.  In  this  codification  §  1  of  the  statute  has 
been  made  §  264;  §§  2  and  7,  265;  §f  3,  4,  5,  and  12,  266;  §  6,  267;  §  8 
and  the  latter  part  of  §  9,  268;  the  first  clause  of  §  9,  and  all  of  §  10, 
269;  §11,  270;  §13,  271;  §14,  272;  §15,  273;  §§16  and  17,  274;  §19, 
275;  §20,  276.  It  will  be  observed  that  §  18  of  the  statute  has  been 
omitted.  It  purports  to  make  the  parties  to  an  indenture  of  appren- 
ticeship liable  to  the  master  for  any  breach  thereof.  The  theory  of 
the  statute  is  that  the  contract  of  apprenticeship  is  not  made  by  the 
minor,  but  by  his  parent  or  guardian.  If  such  parent  or  guardian  is 
made  personally  liable  on  the  contract,  a  parent  will  rarely,  and  the 
guardian  almost  never,  enter  into  it.  It  seems  sufficient  that  such 
parent  or  guardian  be  made  answerable  for  the  cost  of  the  proceeding 
brought  by  the  master  to  be  released  from  the  indenture,  as  provided 
for  in  §  274.  The  master  on  his  part  is  not  absolutely  bound,  because 
he  may,  if  he  wishes  to  remove  from  the  state,  or  to  quit  his  trade  or 
business,  apply  to  be  released  from  his  contract,  and  he  may  take 
like  action  whenever  the  apprentice  is  guilty  of  neglect,  refusal  to  do 
his  duty,  or  gross  misbehavior.  These  considerations  seem  to  furnish 
good  reason  for  the  omission  of  the  section."  See  supra,  Legislation 
Title  IV,  for  original  code  commissioners'  note,  etc. 

§  265.     Persons  who  may  bind  minor  with  his  consent,     A 

minor,  with  his  consent,  may  be  bound  by  his  father,  or,  in 
case  of  his  death  or  incompetency,  or  where  he  has  willfully 
abandoned  his  family  for  one  year  without  making  suitable 
provision  for  their  support,  or  is  habitually  intemperate  in 
the  use  of  intoxicants,  or  is  a  vagrant,  then  by  his  mother  or 
legal  guardian.  An  executor,  who,  by  the  will  of  the  father, 
is  directed  to  bring  up  a  child  to  a  trade  or  calling,  has  power 
to  bind  by  indenture  in  like  manner  as  the  father  might  have 
done,  if  living.  If  a  child  is  illegitimate,  the  mother  alone 
has  power  to  bind  him.  If  a  minor  has  no  parent  or  guardian 
competent  to  act  for  him,  he  may  bind  himself,  with  the  ap- 
proval of  the  superior  court  of  the  county  wherein  he  resides. 
If  the  mother  of  a  minor,  whether  legitimate  or  illegitimate, 
marries  after  his  birth,  she  cannot  bind  him  without  the  ap- 
proval of  such  superior  court. 

Legislation  §  265.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  2),  and  then  read:  "Such  consent  shall  be  given:  1.  By  the 
father  of  the  minor.  If  he  be  dead,  or  be  not  of  legal  capacity  to  give 
his  consent,  or  if  he  shall  have  abandoned  or  neglected  to  provide  for 
his  family,  and  such  fact  be  certified  by  a  justice  of  the  peace  of  the 


§  267  CIVIL  CODE.  78 

township  or  county,  or  sworn  to  bj'  a  credible  witness,  and  such  cer- 
tificate or  affidavit  be  indorsed  on  the  indenture,  then;  2.  By  the 
mother.  If  the  mother  be  dead,  or  be  not  of  legal  capacity  to  give  such 
consent  or  refusal,  then:  3.  By  the  guardian  of  such  infant.  If  such 
infant  have  no  parent  living,  or  none  in  a  legal  capacity  to  give  con- 
sent, and  there  be  no  guardian,  then:  4.  By  the  supervisors  of  the 
county,  or  any  two  justices  of  the  peace,  or  the  judge  of  the  probate 
court  of  the  county;  5.  If  such  minor  be  an  orphan,  under  the  care 
and  control  of  any  orphan  asylum  in  this  state,  then  by  the  board  of 
managers  thereof." 

2.  Amended  by  Code  Amdts.  1880,  p.  5,  in  subd.  4,  substituting  "su- 
perior" for  "probate." 

3.  Amendment  by   Stats.   1901,   p.   341;   unconstitutional.     See   note, 
§  4,  ante. 

4.  Eepealed  by  Stats.  1905,  p.  560. 

5.  Ee-enacted   by    Stats.    1905,   p.   561.     See   ante,   Legislation  §  264. 
for  code  commissioner's  note. 

§  266.  Indenture  of  apprenticeship,  how  to  be  executed 
and  what  to  contain.  Every  indenture  of  apprenticeship  must 
be  executed  in  duplicate,  must  state  the  age  of  the  minor,  and, 
except  as  hereinafter  provided,  must  show  that  he  consented 
thereto,  must  be  signed  by  him  and  the  person  binding  and 
the  master,  and  Avlien  made  with  the  approval  of  the  superior 
court,  a  certified  copy  of  the  order  of  approval  must  be  at- 
tached to  the  indenture.  One  copy  of  the  indenture  must  be 
delivered  to  the  master  and  the  other  kept  for  the  use  of  the 
minor  by  his  parent  or  guardian  when  executed  by  him,  or, 
when  made  with  the  approval  of  the  court,  it  must  be  filed 
and  deposited  with  the  clerk  for  safe-keeping  for  the  use  of 
the  minor.  No  indenture  binds  the  minor  after  the  death  of 
the  master,  but  thereafter  the  minor  may  be  bound  anew. 
Every  indenture  entered  into  otherwise  than  as  herein  pro- 
vided is,  as  against  the  apprentice,  absolutely  void. 

Legislation  §  266.     1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 

p.  134,  §  3),  and  then  read:  "Such  consent  shall  be  signified  in  writing 

by  the  person  entitled  to  give  the  same,  by  certificate  at  the  end  of, 

or  indorsed  upon  the  indentures." 

2.  Amendment   by   Stats.   1901,   p.   341;   unconstitutional.     See  note, 
§  4,  ante. 

3.  Repealed  by  Stats. '1905,  p.  560. 

4.  Re-enacted   by    Stats.   1905,    p.   561.     See   ante,   Legislation  §  264, 
for  code  commissioner's  note. 

§  267.     Jury  trial  as  to  facts  of  incapacity,  etc.,  of  parent. 

Facts  of  incapacity,  desertion,  habitual  intemperance,  and  va- 
grancy must  be  decided  in  said  court  by  a  jury,  before  the  in- 
denture can  take  effect,  and  an  indorsement  on  the  indenture, 
lender  seal  of  the  court,  that  the  charge  or  charges  are  proved, 
is  sufficient  evidence  of  the  mother's  power  to  give  such  con- 
sent; but  if  the  jury  does  not  find  the  charge  or  charges  to 


79  MASTER  AND  APPRENTICE.  §  269 

be  true,  the  person  at  whose  instance  such  proceedings  may 
have  been  had  must  pay  all  costs  attending  the  same. 

legislation  §  267,  1.  Enacted  March  21, 1872  (based  on  Stats.  1858, 
p.  134,  §  4),  and  then  read:  "The  executors  of  any  last  will  of  a  parent, 
who  shall  be  directed  in  such  will  to  bring  up  his  or  her  child  to  some 
trade  or  calling,  may  bind  such  child  to  service  as  a  clerk,  or  appren- 
tice, in  like  manner  as  the  father  might  have  done  if  living.  If  there 
is  a  surviving  mother,  her  consent  also  is  necessary." 

2.  Amendment  by  Stats.  1901,  p.  342;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Ee-enacted  by  Stats.  1905,  p.  561.  See  ante.  Legislation  §  264, 
for  code  commissioner's  note. 

§  268.  Apprenticing-  of  poor  and  homeless  minors.  When  a 
minor  is  poor,  homeless,  chargeable  to  the  county  or  state,  or 
an  outcast  who  has  no  visible  means  of  obtaining  an  honest 
livelihood,  the  superior  court  may,  with  his  consent,  bind  him 
as  an  apprentice  during  his  minority.  Proceedings  therefor 
may  be  instituted  by  any  citizen,  and  no  fee  must  be  charged 
by  any  officer  for  any  act  in  connection  therewith.  In  all  in- 
dentures by  the  court  for  binding  out  an  orphan  or  homeless 
minor  as  an  apprentice  there  must  be  inserted,  among  other 
things,  a  clause  to  the  following  effect:  that  the  master  to 
whom  such  minor  is  bound  must  cause  him  to  be  taught  to  read 
and  w^rite  and  the  ground  rules  of  arithmetic,  ratio  and  pro- 
portion, and  must  give  him  the  requisite  instruction  in  the 
different  branches  of  his  trade  or  calling,  and,  at  the  expira- 
tion of  his  term  of  service,  must  give  him  or  her  fifty  dollars 
in  gold,  and  two  whole  new-  suits  of  clothes,  to  be  worth  in 
the  aggregate  at  least  sixty  dollars  gold. 

Legislation  §  268.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  5),  and  then  read:  "The  supervisors  of  the  county  may  bind 
out  minors  who  are  or  shall  become  chargeable  to  such  county,  to  be 
clerks,  apprentices,  or  servants,  which  binding  shall  be  as  effectual  as 
if  such  minors  had  bound  themselves  with  the  consent  of  their  father." 

2.  Amendment  by  Stats.  1901,  p.  342;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Re-enacted"  by  Stats.  1905,  p.  561.  See  ante.  Legislation  §  264, 
for  code  commissioner's  note. 

§  269.  Master  to  keep  apprentice  within  the  state,  to  de- 
liver him  money  and  other  property  therein.  A  master  must 
not  remove  his  apprentice  out  of  the  state,  and  must  pay  and 
deliver  to  him  the  money,  clothes,  and  other  property  to  which 
he  is  entitled  under  the  indenture  of  apprenticeship,  to  be  held 
by  him  as  his  sole  property. 

Legislation  §  269.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  6),  and  then  read:  "In  every  town  or  city  the  presiding  officer 
of  the  first  council  or  legislative  board  thereof,  if  there  be  more  than 


§  272  CIVIL  CODE.  80 

one,  or  any  public  officer  or  officers  appointed  to  provide  for  the  poor, 
may  in  like  manner  bind  out  any  child  who,  or  whose  parents  are, 
chargeable  to  any  such  town  or  city."  , 

2.  Amendment  by  Stats.  1901,  p.  342;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Re-enacted  by  Stats.  1905,  p.  562.  See  ante,  Legislation  §  264, 
for  code  commissioner's  note. 

§  270.  Duty  to  inquire  into  the  treatment  of  minor  appren- 
tices. Parents  and  guardians  and  such  court  must,  from  time 
to  time,  inquire  into  the  treatment  of  children  bound  by  them 
respectively,  or  with  their  approval,  and  the  judges  of  such 
courts  are  responsible  far  the  charge  of  apprentices  bound  by 
a  court  or  with  its  approval,  and  must  defend  them  from  all 
cruelty,  neglect,  breach  of  contract,  or  misconduct  on  the  part 
of  their  masters. 

Legislation  §  270.  1.  Enacted  March  21,  1872  (based  on  Stats  1858, 
p.  134,  §  7),  and  then  read:  "The  age  of  every  infant  so  bound  shall 
be  inserted  in  the  indentures,  and  shall  be  taken  to  be  the  true  age; 
and  whenever  public  officers  are  authorized  to  execute  any  indentures, 
or  their  consent  is  required  to  the  validity  of  the  same,  it  shall  be 
their  duty  to  inform  themselves  fully  of  the  infant's  age." 

2.  Amendment  by  Stats.  1901,  p.  342;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Re-enacted  by  Stats.  1905,  p.  562.  See  ante,  Legislation  §  264, 
for  code  commissioner's  note. 

§  271.  Hearing'  of  complaints  of  apprentices.  The  superior 
court  must  hear  the  complaints  of  apprentices  who  reside 
within  the  county  against  their  masters,  alleging  undeserved 
or  immoderate  correction,  insufficient  allowance  of  food,  rai- 
ment, or  lodging,  want  of  instruction  in  the  different  branches 
of  their  trade  or  calling,  or  that  they  are  in  danger  of  being 
removed  out  of  the  state,  or  any  violation  of  the  indenture  of 
apprenticeship,  and  the  court  must  hear  and  determine  such 
case  and  make  such  order  therein  as  will  relieve  the  party  in 
the  future. 

Legislation  §  271.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  8),  and  then  read:  "Every  sum  of  money  paid  or  agreed  for, 
with  or  in  relation  to  the  biliding  out  of  any  clerk,  apprentice,  or  ser- 
vant, shall  be  inserted  in  the  indentures." 

2.  Amendment  by  Stats.  1901,  p.  342;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Re-enacted  by  Stats.  1905,  p.  562.  See  ante,  Legislation  §  264, 
for  code  commissioner's  note. 

§  272.  Pow^er  of  court  to  discharge  apprentice  from  appren- 
ticeship. The  superior  court  has  power,  where  circumstances 
require  it,  to  discharge  an  apprentice  from  his  apprenticeship, 
and,  in  case  any  money  or  other  thing  has  been  paid  or  con- 


81  MASTER  AND  APPRENTICE.  §  274 

tracted  to  be  paid  by  either  party  in  relation  to  the  appren- 
ticeship, the  eourt  nnist  make  snch  order  concerning  the  same 
as  seems  just  and  reasonable.  If  the  apprentice  so  discharged 
was  originally  bound  by  the  superior  court,  it  must,  if  found 
necessary,  again  bind  such  minor,  if  under  age. 

.  Legislation  §  272.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  9),  and  then  read:  "The  indenture  shall  also  contain  an  agree- 
ment, on  the  part  of  the  person  to  whom  such  child  shall  be  bound,  that 
he  will  cause  such  child  to  be  instructed  to  read  and  write,  and  to  be 
taught  the  general  rules  of  arithmetic,  or,  in  lieu  thereof,  that  he  will 
send  such  child  to  school  three  months  of  each  year  of  the  period  of 
indenture." 

2.  Amendment  by  Stats.  1901,  p.  343;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  560. 

4.  Ee-enacted  by  Stats.  1905,  p.  562.  See  ante.  Legislation  §  264, 
for  code  commissioner's  note. 

§  273.    Liability  of   master    for   breach    of   his    covenant. 

Every  master  is  liable  to  an  action  on  the  indenture  for  a 
breach  of  any  covenant  thereof  on  his  part.  All  damages  re- 
covered in  such  action,  after  deducting  necessary  charges  in 
its  prosecution,  belong  to  the  minor,  and  must  be  applied  and 
appropriated  to  his  use  by  the  person  recovering  it  in  his  be- 
half, and  must  he  paid  to  the  minor,  if  a  male,  at  the  age  of 
twenty-one  years,  and  if  a  female,  at  the  age  of  eighteen  years. 
If  no  action  is  brought  during  the  minority  of  the  apprentice, 
it  may  be  commenced  by  him  in  his  own  name  at  any  time 
within  two  years  after  his  coming  of  age. 

Legislation  §  273.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  10),  and  then  read:  "The  counterpart  of  any  indenture  exe- 
cuted by  any  county,  or  city,  or  town  officers,  must  be  by.  them  depos- 
ited in  the  office  of  the  clerk  of  the  county  court." 

2.  Amended  by  Code  Amdts.  1880,  p.  6. 

3.  Amendment  by  Stats.  1901,  p.  343;  See  note,  unconstitutional. 
§  4,  ante. 

4.  Repealed  by  Stats.  1905,  p.  560. 

5.  Ee-enacted  by  Stats.  1905,  p.  562.  See  ante.  Legislation,  §  264, 
for  code  commissioner's  note. 

§  274.  Liability  of,  and  proceedings  against,  apprentice 
g"uilty  of  gross  misbehavior.  An  apprentice  who  is  guilty  of 
any  gross  misbehavior,  or  refusal  to  do  his  duty,  or  willful 
neglect  thereof,  is  liable  to  the  complaint  of  his  master  in  the 
superior  court  of  the  county  wherein  the  apprentice  resides. 
Such  complaint  must  set  forth  the  circumstances  of  the  case, 
and  have  attached  thereto  a  citation,  signed  by  the  clerk  of 
the  court,  requiring  him  and  all  persons  who  have  covenanted 
in  his  behalf  to  appear  and  answer  the  complaint  within  ten 
days  after  the  service  thereof.     The  complaint  and  citation 

Civ.  Code — 6 


§  275  CIVIL  CODE.  82 

mast  be  served  in  the  manner  required  for  serving  civil  pro- 
cess. When  the  parties  have  answered,  or  when,  though  they 
have  not  answered,  the  time  therefor  allowed  after  the  ser- 
vice of  the  complaint  has  expired,  the  court  must  proceed  to 
hear  and  determine  the  cause,  and,  if  the  evidence  warrants 
it,  may  render  judgment  that  the  master  be  discharged  from 
the  contract  of  apprenticeship  and  for  costs  of  suit.  Such 
costs  may  be  recovered  from  the  parent  or  guardian  of  the 
minor,  if  there  is  any  who  signed  the  indenture,  and  execution 
therefor  may  issue  accordingly.  If  there  is  no  parent  or 
guardian  liable  for  such  cost,  execution  may  be  issued  therefor 
against  the  minor,  or  the  amount  thereof  may  be  recovered  in 
an  action  against  him  after  he  arrives  at  full  age.  He  is  also 
liable  to  the  master  in  an  action  on  the  indenture  for  the 
breach  of  any  covenant  on  the  part  of  the  apprentice  con- 
tained therein,  committed  before  the  master  was  discharged 
from  the  indenture. 

Legislation  §  274.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  11),  and  then  read:  "Any  minor,  capable  of  becoming  a  citizen 
of  this  state,  coming  from  any  other  country,  state,  or  territory,  may 
bind  himself  to  service  until  his  majority,  or  for  any  shorter  term. 
Such  contract,  if  made  for  the  purpose  of  raising  money  to  pay  his 
passage,  or  for  the  payment  of  such  passage,  may  be  for  the  term 
of  one  year,  although  such  term  may  extend  beyond  the  time  when 
such  person  will  be  of  full  age,  but  it  shall  in  no  case  be  for  a  longer 
term." 

2.  Amendment  by  Stats.  1901,  p.  343;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  560. 

4.  Re-enacted"  by  Stats.  1905,  p.  562.  See  ante.  Legislation  §  264, 
for  code  commissioner's  note. 

§  275.     Enticing  away  apprentices  and  liability  for.     It  is 

unlawful  for  any  person  to  entice,  counsel,  or  persuade  to  run 
away  any  apprentice,  or  to  harbor,  or  conceal  him,  knowing 
him  to  be  a  runaway.  Any  party  so  offending  is  guilty  of  a 
misdemeanor,  and  may  be  fined  not  more  than  one  hundred 
dollars,  to  be  recovered  by  the  master  in  any  court  having 
jurisdiction. 

Legislation  §  275.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  12),  and  then  read:  "No  contract  made  under  the  preceding 
section  shall  bind  the  servant,  unless  duly  acknowledged  by  the  minor, 
before  some  public  magistrate  or  other  officer  authorized  to  administer 
oaths,  nor  unless  a  certificate,  showing  that  the  same  was  made  freely, 
on  private  examination,  be  indorsed  upon  the  contract." 

2.  Amendment  by  Stats.  1901,  p.  343;  unconstitutional.  See  note, 
§'4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Re-enacted  by  Stats.  1905,  p.  563.  See  ante,  Legislation  §  264, 
for  code  commissioner's  note. 


83  MASTER  AND  APPRENTICE.  §  276 

§  276.  Release  of  master  removing  out  of  state  or  quitting 
business.  Whenever  any  master  wishes  to  remove  out  of  the 
state,  or  to  quit  his  trade  or  business,  he  must  appear  with  his 
apprentice  before  the  superior  court  of  the  county  in  which 
the  latter  resides,  and  if  the  court  is  satisfied  that  the  master 
has  done  justice  to  the  apprentice  for  the  time  he  has  had 
charge  of  him,  the  court  has  power  to  discharge  the  master 
from  the  indenture  and  to  again  bind  the  apprentice,  if  neces- 
sary. 

Legislation  §  276.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  134,  §  14),  and  then  read:  "Such  indentures  of  apprenticeship  may  be 
annulled  for:  1.  Fraud  in  the  contract  of  indenture;  2.  When  such  eon- 
tract  is  not  made  or  executed  in  accordance  with  the  provisions  of 
this  title;  3.  For  willful  nonfulfillment,  by  such  master,  of  the  pro- 
visions of  such  indenture;  4.  Cruelty  or  maltreatment  of  such  appren- 
tice by  the  master.  In  such  case,  the  apprentice  may  recover  for  his 
services." 

2.  Amendment  by  Stats.  1901,  p.  344;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  560. 

4.  Ee-enacted  by  Stats.  1905,  p.  563.  See  ante,  Legislation  §  264, 
for  code  commissioner's  note. 


ClVlIi    CODE. 


84 


PAET  IV. 

CORPORATIONS. 

iTi.E  I.     General  Provisions  Applicable    to    All    Corpora- 
tions.    §§283-410. 
II.     Insurance  Corporations.     §§414-453hh. 

III.  Railroad  Corporations.     §§454-494. 

IV.  Street-railroad  Corporations.     §§497-511. 
V.     Wagon-road  Corporations.     §§  512-524. 

VI.     Bridge,  Ferry,  Wharf,  Chute,   and   Pier   Corpora- 
tions.    §§  528-531. 
VII.     Telegraph   and    Telephone   Corporations.     §§  536- 

541. 
VIII.     Water  and  Canal  Corporations.    §§  548-552. 
IX.     Homestead  Corporations.     §§  557-566. 

X.  Savings  and  Loan  Corporations.     §§  571-583b. 

XI.  Mining  Corporations.     §§  584-590. 

XIa.  Corporations  for  the  Formation  of  Chambers  of 
Commerce,  Boards  of  Trade,  Mechanics'  Insti- 
tutes, AND  Other  Kindred  Associations.  §§  591- 
592e. 

XII.  Religious,  Social,  and  Benevolent  Corporations. 
§§593-605. 

Xlla.  Societies  for  the  Prevention  op  Cruelty  to  Chil- 
dren AND  Animals.     §§  607-607g. 

XIII.  Cemetery  Corporations.     §§  608-616. 

XIV.  Agricultural  Fair  Corporations.     §§  620-622. 

XV.     Corporations   to   Furnish   Light   for   Public   Use. 
§§  628-632. 
Land  and  Building  Corporations.     §§  633-648a. 
Colleges  and  Seminaries  of  Learning.      §§  649-651. 
Consolidation    of    Colleges    and    Institutions    of 
Higher  Education.     §§  652,  653. 
XIX.     Co-operative  Business  Corporations.     §§  653a. 
XX.     Co-operative  Business    Associations.     §§  653b-653l. 
XXI.    Non-profit  Co-operative  Agricultural,  Viticultural 

AND  Horticultural  Associations.     §§  653m-653s. 
XXII.     Non-profit     Co-operative     Corporations.     §§  653t^ 
653zb. 
Legislation   Part    IV.     When    enacted   in    1872,    Part   IV    contained 
Titles    I-XVI,    the    numbers     running     consecutively.     For    additions, 
amendments,   etc.,   see   tit.    "Legislation,"   under   the   respective   titles, 
chapters,  articles,  and  sections  constituting  the  part. 


85  FORMATION  OF  CORPORATIONS. 

TITLE  I. 
General  Provisions  Applicable  to  All  Corporations. 

Chapter  I.  Formation  of  Corporations.     Articles  I,  II,     §§  283-321b. 

II.  Corporate  Stock.     Articles  I,  II.     §§  322-349. 

III.  Corporate  Powers.     Articles  I-IV.     §§354-393. 

IV.  Extension   and  Dissolution  of  Corporations.     §§  399-403. 
V.  General  Provisions  Affecting  Corporations.     §§  403,  404. 

VI.     Foreign  Corporations.     §§  405-410. 

Legislation  Title  I.  When  enacted  in  1872,  Title  I  contained  Chap- 
ters I-IV.  Chapters  V  and  VI  were  added  in  1905.  See  tit.  "Legis- 
lation," under  these  chapters  and  under  the  sections  constituting  the 
same. 

CHAPTER  I. 

Formation  of  Corporations. 

Article  I.     Corporations   Defined   and   How   Organized.     §§  283-300a. 

II.     By-laws,   Directors,   Elections,   and   Meetings,     §§  301-321b. 

AETICLE  I. 
Corporations  Defined  and  How  Organized. 

§  283.     Corporation    defined. 

§  284.     Corporations;  what  are. 

§  285.     Private  corporations;  how  formed. 

§  286.     For  what  purpose  private  corporations  are  formed. 

§  287.     How  corporations  may  continue  their  existence  under  this  code. 

§  288.     Existing  corporations  not  affected. 

§  289.     Name  of  instrument  creating  corporation. 

§  290.  Articles  of  incorporation.  Number  of  directors.  Amount  of 
capital  stock. 

§  290a.  Affidavit  of  corporations  authorized  to  act  as  executors,  etc.  Bank- 
ing corporations.  Capital  stock.  Determination  of  population. 
Approval  of  superintendent  of  banks. 

§  2901/;.  Corporations  not  to  use  the  word  "trust"  as  part  of  corporate 
name. 

§  291.     Certain  corporations  to  state  further  facts  in  articles. 

§  292.     Subscription  and  acknowledgment  of  articles  of  incorporation. 

§  293.  Prerequisite  to  filing  articles.  Amounts  to  be  subscribed  to  be 
fixed. 

§  294.     Prerequisite  to  filing  articles  of  corporations  for  profit. 

§  295.  Oath  of  officer  to  subscription  of  stock  and  payment  of  ten  per 
cent. 

§  296.  Secretary  of  state  to  issue  certificate  of  incorporation.  Not  to 
file  copy  of  copy. 

§  297.     Copy  of  articles  prima  facie  evidence. 

§  297a.  Restoration  of  lost  original  articles  of  incorporation. 

§  298.     Who  are  members  and  who  stockholders  of  a  corporation. 

§  299.     When  members  die,  successors  to  be  elected.     [Eepealed.] 

§  299.     Filing  articles  of  incorporation. 

§  300.     Capital  stock  of  banking  corporations.     Dividends. 

§  300a.  Change  of  name;  filing  copy  of  decree. 


§  285  CIVIL  CODE.  86 

§  283.  Corporation  defined.  A  corporation  is  a  creature  of 
the  laAv,  having  certain  powers  and  duties  of  a  natural  person. 
Being  created  by  the  law,  it  may  continue  for  any  length  of 
time  which  the  law  prescribes. 

Powers  of  corporations:   See  post,  §§  354  et  seq. 
Existence  of  corporations  limited  to  fifty  years:  See  post,  §§  290,401. 
Legislation  §  283.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  vol.  2,  p.  117. 

§  284.  Corporations;  what  are.  Corporations  are  either 
public  or  private.  Public  corporations  are  formed  or  organ- 
ized for  the  government  of  a  portion  of  the  state ;  all  other 
corporations  are  private.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  197.] 

Legislation  §  284.  1. 'Enacted  March  21.  1872;  based  on  Const.  1849. 
art.  iv,  §  31;  Angell  and  Ames  on  Corporations,  §§  12,  32;  Field's  Draft, 
N.  Y.  Civ.  Code,  vol.  2,  p.  117.  The  code  commissioners  say:  "As  much 
controversy  has  arisen,  not  only  in  our  state,  but  throughout  many  of 
the  states  of  the  Union,  on  the  subject  of  this  section,  we  have  deemed 
it  best  to  give  these  definitions,  which,  in  our  opinion,  are  but  a  reit- 
eration of  our  very  explicit  constitution,  and  in  accordance  with  ex- 
cellent authority." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  197.  substituting  "all  other 
corporations  are  private"  for  "private  corporations  are  formed  for  the 
purpose  of  religion,  benevolence,  education,  art,  literature,  or  profit." 

§  285.  Private  corporations;  how  formed.  Private  cor- 
porations may  be  formed  hy  the  voluntary  association  of  any 
three  or  more  persons  in  the  manner  prescribed  in  this  article. 
A  majority  of  such  persons  must  be  residents  of  this  state. 
[Amendment  approved  1905;  Stats.  1905,  p.  502.] 

Formation  of  corporation  to  be  under  general  laws:  Const.  1879,  art. 
xii,  §  1. 

Legislation  §  285,  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  2G4,  §2;  Field's  Draft,  N.  Y.  Civ.  Code,  vol.  2,  p.  118),  and  then 
read:  "Private  corporations  may  be  formed  by  the  voluntary  associa- 
tion of  any  five  or  more  persons,  for  the  purposes  and  in  the  manner 
prescribed  in  this  article.  A  majority  of  such  persons  shall  be  citizens 
of  this  state.  Married  women  may  become  corporators,  officers,  and 
members  of  religious,  benevolent,  art,  literary,  or  educational  corpora- 
tions." The  code  commissioners  say:  "This  section  is  new,  and  is  in- 
tended as  a  substitute  for  the  first  section'  of  almost  every  act  author- 
izing the  formation  of  corporations  for  particular  purposes,  of  which 
there  are  many  in  our  statutes.  Their  great  prolixity,  and  their  diver- 
sity in  the  number  of  corporators  and  other  respects,  is  intended  by 
the  commission  to  be  obviated  by  condensing  provisions  and  sections 
having  similar  objects  into  one,  as  is  done  here.  In  the  New  York 
code  the  minimum  is  three,  but  as  the  majority  of  our  corporation  acts 
name  a  larger  number  as  their  minimum — some  as  many  as  thirteen — 
the  commission,  for  obvious  reasons,  felt  unwilling  to  place  the  number 
less  than  five.  The  following  acts  show  the  numbers  adopted  (late 
legislation  has  increased  rather  than  diminished  the  number):  Stats. 
1850,  p.  347;  Stats.  1851,  p.  523;  Stats.  1861,  p.  607;  Stats.  1853,  p.  87; 


S7  FORMATION  OF  CORPORATIONS.  §  286 

Stats.  1857,  p.  75;  Stats.  1859,  p.  281;  Stats.  1862,  p.  199;  Stats.  1866, 
p.  743;  Stats.  1866,  p.  752;  Stats.  1853,  p.  169;  Stats.  1858,  p.  57;  Stats. 

1861,  p.  567;  Stats.  1863,  p.  624." 

2.  Amended  by  Code  Amdts.   1873-74,   p.   197,  and  then  read  as  at 
present,  except  for  the  amendment  of  1905. 

3.  Amended  by  Stats.  1905,  p.  502;  substituting  "three"  for  "five." 

§  286.    For  what  purpose  private  corporations  are  formed. 

Private  corporations  may  be  formed  for  any  purpose  for  which 
individuals  may  lawfully  associate  themselves.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  198.] 

Corporations  to  give  bonds  required  by  law:   See  post.  Appendix,  tit. 
"Bonds." 

Legislation  §  286.     1.  Enacted  March  21,  1872  (based  on  Stats.  1865- 
66,  pp.  743,  752;   Stats.  1861,  p.  607;   Stats.  1853,  pp.  114,  160;  Stats. 

1862,  p.  540;  Stats.  1850,  p.  347;  Stats.  1867-68,  p.  539;  Stats.  1862, 
p.  199;  Stats.  1867-68,  p.  459;  Stats.  1869-70,  pp.  130-132,  364;  Stats. 
1869-70,  p.  523;  Stats.  1853,  p.  574;  Stats.  1857,  p.  121;  Stats.  1862, 
p.  41;  Stats.  1863-64,  p.  76;  Stats.  1869-70,  p.  822;  Stats.  1852,  p.  171; 
Stats.  1869-70,  p.  660;  Stats.  1869-70,  p.  815;  Stats.  1859,  p.  104;  Stats. 
1867-68,  pp.  204,  218;  Stats.  1869-70,  p.  419;  Stats.  1863,  p.  624; 'Stats. 
1865-66,  p.  469;  Stats.  1857,  p.  75;  Stats.  1850,  p.  347;  Stats.  1869-70, 
pp.  402,  702;  Stats.  1859,  p.  281),  and  then  read:  "The  purposes  for 
which  private  corporations  may  be  formed  are  the  following,  and 
none  other:  1.  Fire,  marine,  life,  health,  accident  insurance;  2.  The 
insurance  of  the  lives  of  domestic  animals;  3.  Construction,  conduct, 
and  maintenance  of  railroads,  and  telegraph  lines  in  connection  there- 
with; 4.  Construction,  conduct,  and  maintenance  of  street-railroads, 
plank-roads,  turnpikes,  common  wagon-roads;  5.  Construction,  conduct, 
and  maintenance  of  bridges,  ferries,  wharves,  chutes,  piers;  6.  The 
establishment,  conduct,  and  maintenance  of  express  or  stage  lines;  7. 
Constructing,  conducting,  and  maintaining  telegraph  lines;  8.  Construct- 
ing and  maintaining  canals  for  navigation,  and  canals  and  ditches 
for  drainage,  agricultural,  or  mining  purposes;  9.  For  navigating  the 
ocean,  or  any  of  the  waters  of  this  state,  with  vessels  propelled  by 
sails,  or  in  whole  or  in  part  by  steam;  10.  The  purchase  of  lands  for, 
and  the  distribution  of  homesteads;  11.  The  accumulation  of  funds  for 
the  purchase  of  real  property,  and  for  the  erection  of  buildings  and 
improvements  thereon,  for  the  benefit  of  the  members  thereof;  12.  Ac- 
cumulating savings,  and  loaning  the  funds  of  the  members  thereof;  13. 
Manufacturing,  mining,  mercantile,  mechanical,  wharfing,  docking,  or 
chemical  purposes,  or  for  engaging  in  any  other  species  of  trade,  busi- 
ness, or  commerce;  14.  The  transacting  of  a  printing  and  publishing 
business;  l5.  To  supply  water  to  the  public;  16.  The  manufacture  and 
supply  of  gas,  or  the  supply  of  light  or  heat  to  the  public  by  any  other 
•neans;  17.  The  establishment,  conduct,  and  maintenance  of  hotels, 
laundries,  or  theaters;  IS.  For  the  formation,  conduct,  and  maintenance 
of  district  and  county  agricultural  fairs;  19.  The  encouragement  of,  or 
business  of,  agriculture,  horticulture,  or  stock-raising;  20.  The  improve- 
ment of  the  breed  of  domestic  animals;  21.  The  support,  conduct,  and 
maintenance  of  colleges  of  learning,  or  for  any  literary  or  scientific 
object,  or  for  the  promotion  of  any  of  the  sciences  or  fine  arts;  22. 
Acquiring,  preserving,  and  conducting  public  libraries;  23.  The  organ- 
ization and  conduct  of  chambers  of  commerce,  boards  of  trade,  and 
mechanic  institutes;  24.  The  support,  conduct,  and  maintenance  of 
homes  and  schools  for  orphans  and  foundlings,  or  either  of  them,  or 


§  287  CIVIL  CODE.  88 

any  person  otherwise  destitute;  25.  For  the  purposes  of  religion,  socia- 
bility, charity,  or  learning;  26.  The  purchase  of  lands  for  and  the  main- 
tenance of  cemeteries;  27.  For  banks  of  discount  and  deposit."  The 
code  commissioners  say:  "It  will  be  observed  that  in  the  classification 
of  the  purposes  for  which  corporations  may  be  organized,  one  very  ex- 
tensive class  has  been  omitted.  We  allude  to  the  seventh  class,  under 
the  act  of  April  14,  1853,  p.  87,  which  reads  thus:  'Or  for  the  purpose 
of  engaging  in  any  other  species  of  trade  or  commerce,  foreign  or 
domestic'  This  was  'amended,'  March  5,  1864  (Stats.  1863-64,  p.  149), 
by  inserting  the  word  'business'  after  the  word  'trade.'  We  are  of  the 
opinion  that  this  was  an  advance  backwards;  and  subseqiient  legis- 
lation on  the  same  subject — even  that  had  at  the  session  of  1870  (Stats. 
1869-70,  p.  822) — shows  that  a  similar  'advance,'  to  a  greater  extent, 
has  been  made.  It  is  not  our  purpose,  in  this  note,  to  discuss  the  pro- 
priety of  'specifying'  particularly  the  objects  for  which  corporations 
may  be  formed;  but  if  the  act  of  1853,  as  amended  in  1863-64,  and 
that  of  1869-70,  are  to  be  retained,  all  others  should  be  stricken  from 
the  code,  for  they  comprehend  and  permit  every  species  of  corpora- 
tion. A  sufficient  reason  for  our  proposed  change  may  be  found  in 
the  decision  of  the  supreme  court  at  the  October  term,  1870 — Vandall 
V.  South  San  Francisco  Dock  Company  [40  Cal.  83] — in  which  the  learned 
judge  (Crockett)  uses  this  very  significant  language:  'Whatever  difficul- 
ties surround  this  question  result  from  the  peculiar  nature  of  this  class 
of  corporations,  organized  for  the  novel  purpose  of  speculating  in  real 
estate;  and  though  it  may  be  a  very  questionable  policy  which  per- 
mits corporations  to  be  formed  for  such  a  purpose,  that  is  a  considera- 
tion to  be  addressed  to  the  legislature  and  not  to  the  court.'  For  this 
reason  we  have  omitted  this  class  of  corporations,  except  in  so  far 
as  they  are  embraced  in  the  classes  enumerated  in  this  section,  which 
are  supposed  to  be  sufficiently  broad  to  embrace  every  character  of 
business  requiring  a  combination  of  capital  for  the  successful  prose- 
cution of  the  proposed  business." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  198. 

§  287.  How  corporations  may  continue  their  existence  un- 
der this  code.  Any  corporation  existing-  on  the  first  day  of 
January,  one  thousand  eight  hundred  and  seventy- three, 
formed  under  the  laws  of  this  state,  and  still  existing,  Avhieh 
has  not  already  elected  to  continue  its  existence,  under  the 
provisions  of  this  code  applicable  thereto,  may,  at  any  time 
hereafter,  make  such  election  by  the  unanimous  vote  of  all  its 
directors,  or  such  election  may  be  made  at  any  annual  meet- 
ing of  the  stockholders,  or  members,  or  at  any  meeting  called 
by  the  directors  expressly  for  considering  the  subject,  if  voted 
by  stockholders  representing  a  majority  of  the  capital  stock, 
or  by  a  majority  of  the  members,  or  may  be  made  by  the 
directors  upon  the  written  consent  of  that  number  of  such 
stockholders  or  members.  A  certificate  of  the  action  of  the 
directors,  signed  by  them  and  their  secretary,  when  the  elec- 
tion is  made  by  their  unanimous  vote,  or  upon  the  written  con- 
sent of  the  stockholders  or  members,  or  a  certificate  of  the 
proceedings  of  the  meeting  of  the  stockliolders  or  members, 
when  such  election  is  made  at  any  such  meeting,  signed  by  the 
chairman  and  secretary  of  the  meeting  and  a  majority  of  the 


287.  How  Corporations  May  Continue  Their  Existence  Under 
Thiis  Code.  Any  corporation  existing  on  the  first  day  of  Janu- 
ary, one  thousand  eight  hundred  seventy-three,  formed  under  the 
laws  of  this  state,  and  still  existing,  which  has  not  already 
elected  to  continue  its  existence,  under  the  provisions  of  this 
code  applicable  thereto,  may,  at  any  time  hereafter,  make  such 
election  by  the  unanimous  vote  of  all  its  directors,  or  such  elec- 
tion may  be  made  at  any  annual  meeting  of  the  stockholders,  or 
members,  or  at  any  meeting  called  by  the  directors  expressly  for 
considering  the  subject,  if  voted  by  stockholders  representing  a 
majority  of  the  capital  stock,  or  by  a  majority  of  the  members, 
or  may  be  made  by  the  directors  upon  the  written  consent  of 
that  number  of  such  stockholders  or  members.  A  certificate  of 
the  action  of  the  directors,  signed  by  them  and  their  secretary, 
when  the  election  is  made  by  their  unanimous  vote,  or  upon  the 
written  consent  of  the  stockholders  or  members,  or  a  certificate 
of  the  proceedings  of  the  meeting  of  the  stockholders  or  mem- 
bers, when  such  election  is  made  at  any  such  meeting,  signed  by 
the  chairman  and  secretary  of  the  meeting  and  a  majority  of  the 
directors,  must  be  filed  in  the  office  [of  the  secretary  of  state.J 
and  thereafter  the  corporation  shall  continue  its  existence  under 
the  provisions  of  this  code  which  are  applicable  thereto,  and  shall 
possess  all  the  rights  and  powers,  and  be  subject  to  all  the  obli- 
gations, restrictions,  and  limitations  prescribed  thereby.  [The 
secretary  of  state  shali  forthwith  issue  a  certified  copy  of  said 
certificate  and  transmit  said  copy  to  the  county  clerk  of  the 
county  in  which  the  principal  place  of  business  of  the  corpora- 
tion was  situated  at  the  time  said  corporation  was  incorporated 
which  copy  shall  be  filed  by  said  county  clerk  upon  payment  of 
the  fee  prescribed  by  law.  A  copy  of  such  certificate,  certified 
by  the  secretary  of  state,  shall  be  filed  by  such  corporation  In 
the  office  of  the  county  clerk  of  every  county  in  which  said  cor- 
poration has  or  holds  real  property.  Any  corporation  which  shall 
fall  to  comply  with  the  requirements  of  the  preceding  sentence 
shall  be  subject  to  the  penalties  and  liabilities  provided  in  section 
two  hundred  ninety-nine  for  a  failure  of  corporations  to  file 
copies  of  their  articles  of  incorporation  with  the  county  clerks  of 
the  counties  in  which  they  shall  purchase,  hold  or  locate  real 
property.]  (In  effect  90  days  from  and  after  April  20,  1<'21. 
Stats.    1921,    Chap.    129.)  Civ.  Code,  1921 


89  FORMATION  OF  CORPORATIONS.  §  290 

directors,  must  be  filed  in  the  office  of  the  clerk  of  the  county 
where  the  original  articles  of  corporation  are  filed,  and  a  cer- 
tified copy  thereof  must  be  filed  in  the  office  of  the  secretary 
of  state ;  and  thereafter  the  corporation  shall  continue  its 
existence  under  the  provisions  of  this'eode  which  are  applicable 
thereto,  and  shall  possess  all  the  rights  and  powers,  and  be 
subject  to  all  the  obligations,  restrictions,  and  limitations  pre- 
scribed thereby.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  198.] 

Legislation  §  287.  1.  Enacted  March  21,  1872,  and  then  read:  "Any 
existing  corporation  formed  under  any  law  of  this  state,  for  any  pur- 
pose designated  in  any  subdivision  of  the  preceding  section,  may,  at 
a  meeting  of  its  members  or  stockholders,  called  for  that  purpose, 
continue  its  existence,  under  title  one  of  this  part,  or  under  the  pro- 
visions of  any  subsequent  title  particularly  applicable  thereto,  as  fol- 
lows: 1.  Public  notice  of  such  meeting,  and  of  its  object,  must  be  given 
by  publishing  the  same  in  a  daily  newspaper  for  two  weeks,  or  a 
weekly  newspaper  for  four  weeks,  successively,  published  in  the  county 
where  the  principal  place  of  business  of  the  corporation  is.  In  lieu  of 
the  publication,  personal  notice  may  be  given  to  each  member  or 
stockholder  thereof;  2.  Two  thirds  of  the  members,  if  there  is  no  cap- 
ital stock,  and  if  there  is  a  capital  stock,  then  stockholders  represenj;- 
ing  two  thirds  of  it,  must  vote  in  favor  of  such  continuance;  3.  A 
copy  of  the  proceedings  of  this  meeting,  giving  the  names  of  all  per- 
sons present,  the  votes  taken,  the  notice  calling  the  meeting,  and  the 
proof  of  its  publication  or  service,  all  duly  certified  by  the  president 
and  secretary  of  the  corporation,  must  be  filed  in  the  offices  of  the  sec- 
retary of  state  and  clerk  of  the  county  where  the  articles  of  incor- 
poration are  on  file.  Thereafter  such  corporation  is  possessed  of  all 
the  rights  and  powers,  and  subject  to  all  the  obligations,  restrictions, 
and  limitations  provided  in  this  part  applicable  thereto,  and  its  cor- 
porate existence  is  continued." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  198. 

§  288.  Existing-  corporations  not  affected.  No  corporation 
formed  or  existing  before  tAvelve  o'clock,  noon,  of  the  day 
upon  which  this  code  takes  effect,  is  affected  by  the  provi- 
sions of  part  four,  of  division  first  of  this  code,  unless  such 
corporation  elects  to  continue  its  existence  under  it  as  provided 
in  section  two  hundred  and  eighty-seven;  but  the  laws  under 
which  such  corporations  were  formed  and  exist  are  applicable 
to  all  such  corporations,  and  are  repealed,  subject  to  the  pro- 
visions of  this  section. 

Legislation  §  288.     Enacted  March   21,   1872. 

§  289.  Name  of  instrument  creating  corporation.  The  in- 
strument by  which  a  private  corporation  is  formed  is  called 
"articles  of  incorporation," 

Legislation  §  289.     Enacted  March  21,  1872. 

§  290.  Articles  of  incorporation.  Number  of  directors. 
Amount  of  capital  stock.  Articles  of  incorporation  must  be 
prepared,  setting  forth  : 


§  290  CIVIL  CODE.  90 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  Avhere  its  principal  business  is  to  be  transacted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  its  directors  or  trustees,  which  shall  not 
be  less  than  three,  and  the  names  and  residences  of  those  who 
are  appointed  for  the  first  year;  provided,  that  the  corporate, 
powers,  business,  and  property  of  corporations  formed,  or  to 
be  formed  for  purposes  other  than  profit,  may  be  exercised, 
conducted,  and  controlled  by  a  board,  consisting  of  such  num- 
ber of  directors  as  may  be  in  the  constitution  and  by-laws 
provided ;  and  corporations  so  formed  may,  in  their  constitu- 
tion or  by-laws,  provide  for  the  length  of  time  that  the  direc- 
tors, or  any  number  thereof,  shall  act,  and  may  in  like  manner 
provide  that  certain  directors,  or  a  certain  number  of  the 
board  of  directors,  to  be  selected  by  the  corporation  or  the 
board  of  directors,  in  the  mode  and  manner  provided  in  the 
constitution  or  by-laws,  shall  act  for  any  specified  length  of 
time,  or  otherwise,  as  shall  be  in  the  constitution  or  by-laws 
set  forth. 

6.  The  amount  of  its  capital  stock,  and  the  number  of  shares 
into  which  it  is  divided  and  the  par  value  thereof.  Corpora- 
tions formed  for  profit,  pursuant  to  the  provisions  of  this  code, 
may,  by  their  articles  of  incorporation,  provide  for  the  classi- 
fication of  their  capital  stock  into  preferred  and  common  stock. 
In  the  event  that  the  articles  of  incorporation  shall  provide 
for  such  classification  the  same  must  contain  a  statement  of 
the  number  of  shares  of  a  stock  to  which  preference  is  granted, 
and  the  number  of  shares  of  stock  to  which  no  preference  is 
granted.  The  articles  of  incorporation  shall  also  state,  in 
clear  and  succinct  manner,  the  nature  and  extent  of  the  pref- 
erence granted,  and  except  as  to  the  matters  and  things  so 
stated,  no  distinction  shall  exist  betweeri.  said  classes  of  stock 
or  the  owners  thereof;  provided,  however,  that  no  preference 
shall  be  granted  nor  shall  any  distinction  be  made  between 
the  classes  of  stock  either  as  to  voting  power  or  as  to  the 
statutory  or  constitutional  liability  of  the  holders  thereof  to 
the  creditors  of  the  corporation ;  and  provided,  further,  that 
the  preferred  and  common  shares  shall  be  of  the  same  par 
value. 

7.  If  there  is  a  capital  stock,  the  amount  actually  subscribed, 
and  by  whom.  [Amendment  approved  1915 ;  Stats.  1915, 
p.  1481.] 

Requisites.     Particular  kinds  of  corporation:   See  post,  §§  291,  594. 
Limit  of  corporate  existence:   See  post,  §  401. 
Number  of  directors:   See  post,  §  305. 


91  FORMATION  OP  CORPORATIONS.  §  290 

Legislation  §  290.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  vol.  2,  p.  121;  Stats.  1868,  p.  539,  §§_2,  3),  and 
then  read:  "Articles  of  incorporation  must  be  prepared,  setting  forth: 
1.  The  name  of  the  corporation;  2.  The  purpose  for  which  it  is  formed; 
3.  The  place  where  its  principal  business  is  to  be  transacted;  4.  The 
term  for  which  it  is  to  exist,  not  exceeding  tifty  years;  5.  The  number 
of  its  directors  or  trustees,  and  the  names  and  residences  of  those 
who  are  appointed  for  the  first  year;  6.  The  amount  of  its  capital 
stock,  and  the  number  of  shares  into  which  it  is  divided;  7.  If  there 
is  a  capital  stock,  the  amount  actually  subscribed,  and  by  whom." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  199,  (1)  changing  subds.  5 
and  6  to  read:  "Five.  The  number  of  its  directors  or  trustees,  and 
the  names  and  residences  of  such  of  them  who  are  to  serve  until  the 
election  of  such  otlficers  and  their  qualification.  Six.  If  there  be  a 
capital  stock,  its  amount  and  the  number  of  shares  into  which  it  is 
divided";    (2)    omitting  subd.  7. 

3.  Amended  by  Code  Amdts.  1875-76,  p.  70,  (1)  changing  subd.  5  to 
read:  "Fifth.  The  number  of  its  directors  or  trustees,  and  the  names 
and  residences  of  those  who  are  appointed  for  the  first  year;  provided, 
at  any  time  during  the  existence  of  the  corporation  the  number  of  the 
directors  may  be  increased,  in  corporations  for  profit,  by  a  majority 
of  the  stockholders  of  the  corporation,  to  any  number  not  exceeding 
eleven,  who  must  be  members  of  the  corporation,  whereupon  a  certifi- 
cate, stating  the  number  of  directors,  must  be  filed  as  provided  for 
in  section  two  hundred  and  ninety-six  for  the  filing  of  the  original 
articles  of  incorporation";  (2)  restoring  subd.  6  to  read  as  originally 
enacted,  and  re-enacting,  also,  subd.  7. 

4.  Amended  by  Code  Amdts.  1880,  p.  11,  (1)  in  subd.  First,  substi- 
tuting "incorporation"  for  "corporation";  (2)  in  subd.  Second,  changing 
"formed"  to  "framed"  (probably  a  typographical  error;  corrected  in 
1891);  (3)  changing  subd.  5  to  read:  "Fifth.  The  number  of  its  direct- 
ors or  trustees,  which  shall  not  be  less  than  five  nor  more  than  eleven, 
and  the  names  and  residence  of  those  who  are  appointed  for  the  first 
year;  provided,  that  the  corporate  powers,  business,  and  property  of 
corporations  formed  or  to  be  formed  for  the  purpose  of  erecting  and 
managing  halls  and  buildings  for  the  meetings  and  accommodation  of 
several  lodges  or  societies  of  any  benevolent  or  charitable  order  or 
organization,  and  in  connection  therewith  the  leasing  of  stores  and 
offices  in  such  building  or  buildings  for  other  purposes  may  be  con- 
ducted, exercised,  and  controlled  by  a  board  of  not  less  than  five  nor 
more  than  fifty  directors,  to  be  chosen  from  among  the  stockholders 
of  such  corporation,  or  from  among  the  members  of  such  order  or 
organization;  and  provided,  also,  that  at  any  time  during  the  exist- 
ence of  corporations  for  profit,  other  than  those  of  the  character  last 
hereinabove  provided  for,  the  number  of  the  directors  may  be  increased 
or  diminished  by  a  majority  of  the  stockholders  of  the  corporation 
to  any  number  not  exceeding  eleven  nor  less  than  five,  who  must  be 
members  of  the  corporation;  whereupon  a  certificate,  stating  the  num- 
ber of  directors,  must  be  filed,  as  provided  for  in  section  two  hundred 
and  ninety-six  for  the  filing  of  the  original  articles  of  incorporation." 

5.  Amended  by  Stats.  1891,  p.  285,  (1)  in  subd.  2,  changing  "framed" 
to  "formed"  (quaere,  a  correction?);  (2)  in  subd.  5,  adding  a  third  pro- 
viso, at  end  of  subdivision,  which  read  the  same  as  the  proviso  in  the 
present  section  except  that  at  the  beginning  of  the  proviso,  it  read: 
"Corporations  formed  or  to  be  formed  for  social  purposes  and  not 
directly  for  profit,"  instead  of  "corporation  formed  or  to  be  formed  for 
purposes  other  than  profit." 


§  290a  CIVIL  CODE.  92 

6.  Amended  hj-  Stats.  1901,  p.  322,  in  subd.  5,  (1)  in  second  line, 
omitting  "nor  more  than  eleven"  after  "less  than  five";  (2)  at  end 
of  first  proviso,  changing  (a)  "nor"  to  "or"  after  "less  than  five"  and 
(b)  "stockholders"  to  "stockholder"  (both  either  clerical  or  typo- 
graphical errors,  probably) ;  (3)  in  second  proviso,  changing  "not  ex- 
ceeding eleven  nor  less  than  five"  to  "not  less  than  five." 

7.  Amended  by  Stats.  1905,  p.  502,  in  subd.  5,  (1)  changing  "five"  to 
"three"  after  "less  than,"  in  all  instances,  (2)  at  end  of  first  proviso, 
omitting  "from"  before  "among  the  members";  the  other  changes  being 
grammatical  errors  in  the  number  of  nouns. 

8.  Amended  by  Stats.  1907,  p.  347;  the  code  commissioner  saying, 
"The  change  consists  in  the  addition  of  all  after  the  first  sentence  in 
subd.  6,  providing  for  the  classification  of  the  capital  stock  into  pre- 
ferred and  common  stock." 

9.  Amended  by  Stats.  1915,  p.  1481. 

§  290a.  Affidavit  of  corporations  authorized  to  act  as  ex- 
ecutors, etc.  Banking"  corporations.  Capital  stock.  Determi- 
nation of  population.     Approval  of  superintendent  of  banks. 

Before  the  secretary  of  state  issues  any  certificate  of  incorpo- 
ration to  any  corporation,  authorized  in  its  articles  of  incor- 
poration to  conduct  the  business  of  acting  as  executor, 
administrator,  guardian  of  estates,  assignee,  receiver,  deposi- 
tary, or  trustee  under  appointment  of  any  court  or  by  author- 
ity of  any  law  of  this  state,  or  as  trustee  for  any  purpose 
permitted  by  law,  and  before  he  files  any  amended  articles  of 
incorporation  authorizing  such  purposes  if  the  principal  place 
of  business  of  such  corporation  is  in  a  city  of  which  the  popu- 
lation does  not  exceed  one  hundred  thousand  persons,  there 
must  be  filed  in  his  office  the  affidavit  of  all  the  directors  of 
such  corporation  that  at  least  one  hundred  thousand  dollars  of 
the  capital  stock  has  actually  been  subscribed  and  paid  in  in 
cash  to  a  person  named  in  such  affidavit,  for  the  conduct  of 
such  trust  business  and  for  the  exclusive  benefit  and  protec- 
tion of  the  creditors  of  such  trust  business,  and  if  the  principal 
place  of  business  is  in  a  city,  the  population  of  which  exceeds 
one  hundred  thousand  persons,  there  must  be  filed  in  his  office 
the  affidavit  of  all  the  directors  of  such  corporation  that  at 
least  two  hundred  thousand  dollars  of  the  capital  stock  has 
actually  been  subscribed  and  paid  in  in  cash  to  a  person  named 
in  such  affidavit,  for  the  conduct  of  such  trust  business  and 
for  the  exclusive  benefit  and  protection  of  the  creditors  of 
such  trust  business  and  before  he  issues  any  certificate  of  in- 
corporation to  any  corporation  authorized  in  its  articles  of 
incorporation  to  engage  in  the  business  of  banking,  or  of  re- 
ceiving the  money  of  others  on  deposit,  there  must  in  like 
mariner  be  filed  the  affidavit  herein  that  a  capital  stock,  as 
follows,  has  actually  been  subscribed,  and  paid  in  in  cash  to  a 
person  named  in  such  affidavit,  for  the  benefit  of  the  corpo- 
ration : 


290a.  Corporations  Authorized  to  Act  as  Executor,  Etc.,  or  to 
Engage  in  Business  of  Banl<ing.  [Before  any  corporation,  autiior- 
ized  in  its  articles  of  incorporation  to  conduct  the  business  of 
acting  as  executor,  administrator,  guardian  of  estates,  assignee, 
receiver,  depositary,  or  trustee  under  appointment  of  any  court  or 
by  authority  of  any  law  of  this  state,  or  as  trustee  for  any  purpose 
permitted  by  law,  or  to  engage  in  the  business  of  banking,  or  of 
receiving  the  money  of  others  on  deposit,  may  file  with  the  secre- 
tary of  state  a  certified  copy  of  its  articles  of  incorporation,  or  of  a 
certificate  of  extension  of  its  term  of  existence,  or  of  a  certificate 
increasing  or  decreasing  the  number  of  its  directors,  or  of  a  certift- 
cate  increasing  or  decreasing  its  capital  stock,  or  of  its  amendej:; 
articles  of  incorporation,  or  of  its  articles  of  incorporation  and  con- 
solidation, there  must  be  attached  thereto  the  certificate  of  ap- 
proval of  the  superintendent  of  banks;  provided,  that  this  section 
shall  not  apply  to  any  corporation  authorized  to  engage  in  the  busi- 
ness of  receiving  and  holding  in  escrow  money  or  its  equivalent, 
pending  investment  in  real  estate  or  securities  for  or  on  account 
of  its  principal,  or  to  act  as  trustee  under  deeds  of  trust  given 
solely  for  the  purpose  of  securing  obligations  for  the  repayment  of 
money  other  than  corporation  bonds,  nor  shall  such  corporations  be 
subject  to  the  supervision  of  the  superintendent  of  banks.]  (In 
effect  90  <iay.«  from  and  after  April  27,  1917.  Stat.s.  1917,  Chap. 
^*^2-)  Civ.  Code,   1917. 


290a.     Corporations    Authorized    to    Act    as    Executor,    Etc., 
to     Engage     in     Business    of    Banking.      Before    any    corporatic 
authorized    in    its    articles    of    incorporation    to    conduct    the    bui 
ness    of    acting    as    executor,    administrator,    guardian    of    estati 
assignee,    receiver,    depositary    or    trustee    under    appointment 
any  court  or  by  authority  of  any  law  of  this  state,   or  as  trust 
for   any  purpose   permitted   by   law,    or   to   engage  in   the   busine 
of  banking,   or  of  receiving  the   money  of  others  on   deposit,    m 
file  with   the   secretary  of    [state   its]    articles  of  incorporation, 
a  certificate  of  extension  of  its  term  of  existence,  or  a  certificE 
increasing  or  decreasing  the  number  of  its  directors,  or  a  certi 
cate    increasing    or    decreasing    its    capital    stock,    or    its    amend 
articles  of  incorpoi-ation,   or  its  articles  of  incorporation  and  cc 
solidation,     there    must     be    attached    thereto     the    certificate 
approval  of  the  superintendent  of  banks;   provided,    that  this   s< 
tion   shall   not  apply   to   any   corporation   authorized   to   engage 
the    business    of    receiving    and    holding    in    escrow    money    or 
equivalent   pending  investment   in   real  estate   or   securities   for 
on   account   of   its   principal,   or   to  act  as   trustee   under  deeds 
trust  given  solely  for  the  purpose  of  securing  obligations   for  1 
repayment  of  money  other  than  corporation  bonds,  nor  shall  sij 
corporations   be   subject   to   the   supervision   of   the    superintends 
of  banks.     (In  effect  90  days  from  and  after  April  29,   1921.     Sta 
1921,  Chap.   130.)  Civ.   Code,  19 


93  FORMATION  OF  CORPORATIONS.  §  290a 

(a)  In  any  locality  in  which  the  population  does  not  exceed 
five  thousand  persons,  not  less  than  twenty-five  thousand  dol- 
lars if  it  is  incorporated  to  trj^nsact  either  a  commercial  or 
savings  business  or  both,  or  not  less  than  one  hundred  twenty- 
five  thousand  dollars  if  it  is  incorporated  to  transact  both  a 
commercial  and  trust  business,  or  not  less  than  one  hundred 
twenty-five  thousand  dollars  if  it  is  incorporated  to  transact 
both  a  savings  and  trust  business  and  not  less  than  one  hun- 
dred twenty-five  thousand  dollars  if  it  is  incorporated  to 
transact  a  commercial,  savings  and  trust  business. 

(b)  In  any  city  in  which  the  population  is  more  than  five 
thousand  persons  but  does  not  exceed  twenty-five  thousand 
persons,  not  less  than  fifty  thousand  dollars  if  it  is  incorpo- 
rated to  transact  either  a  commercial  or  savings  business  or 
both,  or  not  less  than  one  hundred  fifty  thousand  dollars  if  it 
is  incorporated  to  transact  both  a  commercial  and  trust  busi- 
ness, or  not  less  than  one  hundred  fifty  thousand  dollars  if  it 
is  incorporated  to  transact  both  a  savings  and  trust  business, 
and  not  less  than  one  hundred  fifty  thousand  dollars  if  it  is 
incorporated  to  transact  a  commercial,  savings  and  trust  busi- 
ness. 

(c)  In  any  city  in  which  the  population  is  more  than 
twenty-five  thousand  persons,  but  does  not  exceed  one  hundred 
thousand  persons,  not  less  than  one  hundred  thousand  dollars 
if  it  is  incorporated  to  transact  cither  a  commercial  or  savings 
business  or  both,  or  not  less  than  two  hundred  thousand  dol- 
lars if  it  is  incorporated  to  transact  both  a  commercial  and  trust 
business,  or  not  less  than  two  hundred  thousand  dollars  if  it 
is  incorporated  to  transact  both  a  savings  and  trust  business, 
and  not  less  than  two  hundred  thousand  dollars  if  it  is  incor- 
porated to  transact  a  commercial,  savings  and  trust  business. 

(d)  In  any  city  in  which  the  population  is  more  than  one 
hundred  thousand  persons  but  does  not  exceed  two  hundred 
thousand  persons,  not  less  than  two  hundred  thousand  dollars 
if  it  is  incorporated  to  transact  either  a  commercial  or  savings 
business  or  both,  or  not  less  than  four  hundred  thousand  dol- 
lars if  it  is  incorporated  to  transact  both  a  commercial  and 
trust  business,  or  not  less  than  four  hundred  thousand  dollars 
if  it  is  incorporated  to  transact  both  a  savings  and  trust  busi- 
ness, and  not  less  than  four  hundred  thousand  dollars  if  it  is 
incorporated  to  transact  a  commercial,  savings  and  trust 
business. 

(e)  In  any  city  in  which  the  population  exceeds  two  hun- 
dred thousand  persons,  not  less  than  three  hundred  thousand 
dollars  if  it  is  incorporated  to  transact  either  a  commercial 
or  savings  business  or  both,  or  not  less  than  five  hun- 
dred thousand  dollars  if  it  is  incorporated  to  transact  both  a 


§  290a  CIVIL  CODE.  94 

commercial  and  trust  business,  or  not  less  than  five  hundred 
thousand  dollars  if  it  is  incorporated  to  transact  both  a  sav- 
ings and  trust  business,  and  fjot  less  than  five  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  a  commercial, 
savings  and  trust  business. 

For  the  purposes  of  this  section,  the  population  shown  and 
determined  by  the  last  preceding  federal  census,  or  any  sub- 
sequent census  compiled  and  certified  under  any  law  of  this 
state,  shall  be  deemed  to  be  the  population  of  any  city  in 
which  such  corporation  is  to  be  organized.  If  the  principal 
place  of  business  of  any  corporation  so  organized  is  located 
outside  of  the  corporate  limits  of  any  city,  then  the  population 
of  that  portion  of  the  judicial  township  in  which  said  corpo- 
ration is  to  have  its  principal  place  of  business,  which  is  not 
included  within  the  boundaries  of  any  municipal  corporation, 
as  such  population  is  shown  and  determined  by  such  federal 
or  subsequent  official  census,  shall  be  the  basis  for  classifica- 
tions under  the  provisions  of  this  section. 

Before  the  secretary  of  state  shall  issue  any  certificate  of 
incorporation  to  any  corporation  specified  in  this  section  and 
before  he  files  any  amended  articles  of  incorporation  or  other 
certificate  increasing  or  decreasing  the  capital  stock,  extend- 
ing or  shortening  the  corporate  existence  or  increasing  or 
decreasing  the  number  of  directors  of  any  such  corporation 
there  must  be  attached  to  said  certificates  or  amendments  the 
approval  of  the  superintendent  of  banks.  [Amendment  ap- 
proved 1915;  Stats.  1915,  p.  1136.] 

Legislation  §  290a.  1.  Added  by  Stats.  1907,  p.  842,  and  then  read: 
"Before  the  secretary  of  state  issues  to  any  corporation,  authorized  in 
its  articles  of  incorporation  to  act  as  executor,  administrator,  guardian, 
assignee,  receiver,  depositary  or  trustee,  there  must  be  filed  in  his  office 
the  affidavit  of  the  persons  named  in  said  articles  as  the  first  directors 
of  the  corporation,  that  at  least  one  hundred  thousand  dollars  of  the 
capital  stock,  has  actually  been  subscribed,  and  paid  in  to  a  person 
named  in  such  affidavit,  for  the  benefit  of  the  corporation."  The  code 
commissioner  says  of  the  addition  of  this  section  in  1907:  "A  new- 
section  providing  an  effective  method  of  enforcing  §  25  of  the  Bank 
Commission  Act  of  March  24,  1903,  added  by  the  amendment  of  1905 
(Stats.  1905,  p.  307)." 

2,  Amended  by  Stats.  1909,  p.  300,  and  then  read:  "Before  the  sec- 
retary of  state  issues  any  certificate  of  incorporation  or  certificate 
of  authority  to  transact  business  in  this  state,  to  any  corporation, 
authorized  in  its  articles  of  incorporation  to  act  as  executor,  admin- 
istrator, guardian,  assignee,  receiver,  depositary  or  trustee,  there  must 
be  filed  in  his  office  the  affidavit  of  the  persons  named  in  said  articles 
as  the  first  directors  of  the  corporation,  that  at  least  two  hundred 
thousand  dollars  of  the  capital  stock,  has  actually  been  subscribed, 
and  paid  in  to  a  person  named  in  such  affidavit,  for  the  benefit  of  the 
corporation  and  before  he  issues  any  certificate  of  incorporation,  or 
certificate  of  authority  to  transact  business  in  thi«  state,  to  any  cor- 
poration, authorized  in  its  articles  of  incorporation  to  engage  in  the 


95  FORMATION  OF  CORPORATIONS.  §  290a 

business  of  banking,  or  of  receiving  the  money  of  others  on  deposit, 
there  must  in  like  manner  be  filed  the  affidavit  provided  herein  that 
at  least  twenty-five  thousand  dollars  of  the  capital  stock,  has  actually 
been  subscribed,  and  paid  in  to  a  person  named  in  such  affidavit,  for 
the  benefit  of  the  corporation." 

3.  Amended  by  Stats.  1913,  p.  201  to  read:  "Before  the  secretary 
of  state  issues  any  certificate  of  incorporation  to  any  corporation, 
authorized  in  its  articles  of  incorporation  to  conduct  the  business  of 
acting  as  executor,  administrator,  guardian  of  estates,  assignee,  re- 
ceiver, depositary,  or  trustee  under  appointment  of  any  court  or  by 
authority  of  any  law  of  this  state  or  as  trustee,  for  any  purpose  per- 
mitted by  law,  and  before  he  files  any  amended  articles  of  incorpora- 
tion authorizing  such  purposes  if  the  principal  place  of  business  of 
such  corporation  is  in  a  city  of  which  the  population  does  not  exceed 
one  hundred  thousand  persons,  there  must  be  filed  in  his  office  the 
affidavit  of  all  the  directors  6f  such  corporation  that  at  least  one  hun- 
dred thousand  dollars  of  the  capital  stock  has  actually  been  sub- 
scribed and  paid  in  in  cash  to  a  person  named  in  such  affidavit,  for 
the  conduct  of  such  trust  business  and  for  the  exclusive  benefit  and 
protection  of  the  creditors  of  such  trust  business,  and  if  the  principal 
place  of  business  is  in  a  city,  the  population  of  which  exceeds  one 
hundred  thousand  persons,  there  must  be  filed  in  his  office  the  affidavit 
of  all  the  directors  of  such  corporation  that  at  least  two  hundred 
thousand  dollars  of  the  capital  stock  has  actually  been  subscribed  and 
paid  in  in  cash  to  a  person  named  in  such  affidavit,  for  the  conduct  of 
such  trust  business  and  for  the  exclusive  benefit  and  protection  of  the 
creditors  of  such  trust  business  and  before  he  issues  any  certificate 
of  incorporation  to  any  corporation  authorized  in  its  articles  of  incor- 
poration to  engage  in  the  business  of  banking,  or  of  receiving  the 
money  of  others  on  deposit,  there  must  in  like  manner  be  filed  the 
affidavit  herein  that  a  capital  stock,  as  follows,  has  actually  been  sub- 
scribed, and  paid  in  in  cash  to  a  person  named  in  such  affidavit,  for 
the  benefit  of  the  corporation:  (a)  In  any  locality  in  which  the 
population  does  not  exceed  five  thousand  persons,  not  less  than  twenty- 
five  thousand  dollars  if  it  is  incorporated  to  transact  either  a  com- 
mercial or  savings  business  or  both,  or  not  less  than  one  hundred 
twenty-five  thousand  dollars  if  it  is  incorporated  to  transact  both  a 
commercial  and  trust  business,  or  not  less  than  one  hundred  twenty- 
five  thousand  dollars  if  it  is  incorporated  to  transact  both  a  savings 
and  trust  business  and  not  less  than  one  hundred  twenty-five  thousand 
dollars  if  it  is  incorporated  to  transact  a  commercial,  savings  and  trust 
business,  (b)  In  any  city  in  which  the  population  is  more  than  five 
thousand  persons  but  does  not  exceed  twenty-five  thousand  persons, 
not  less  than  fifty  thousand  dollars  if  it  is  incorporated  to  transact 
either  a  commercial  or  savings  business  or  both,  or  not  less  than  one 
hundred  fifty  thousand  dollars  if  it  is  incorporated  to  transact  both 
a  commercial  and  trust  business,  or  not  less  than  one  hundred  fifty 
thousand  dollars  if  it  is  incorporated  to  transact  both  a  savings  and 
trust  business,  and  not  less  than  one  hundred  and  fifty  thousand  dollars 
if  it  is  incorporated  to  transact  a  commercial,  savings  and  trust  busi- 
ness, (c)  In  any  city  in  which  the  population  is  more  than  twenty- 
five  thousand  persons,  but  does  not  exceed  one  hundred  thousand  per- 
sons, not  less  than  one  hundred  thousand  dollars  if  it  is  incorporated  to 
transact  either  a  commercial  or  savings  business  or  both,  or  not  less 
than  two  hundred  thousand  dollars  if  it  is  incorporated  to  transact  both 
a  commercial  and  trust  business,  or  not  less  than  two  hundred  thou- 
sand dollars  if  it  is  incorporated  to  transact  both  a  savings  and  trust 


§  291  CIVIL   CODE.  96 

business,  and  not  less  than  two  hundred  thousand  dollars  if  it  is 
incorporated    to    transact    a    commercial,    savings   and    trust   business. 

(d)  In  any  city  in  which  the  population  is  more  than  one  hundred 
thousand  persons  but  does  not  exceed  two  hundred  thousand  persons, 
not  less  than  two  hundred  thousand  dollars  if  it  is  incorporated  to 
transact  either  a  commercial  or  savings  business  or  both,  or  not  less 
than  four  hundred  thousand  dollars  if  it  is  incorporated  to  transact 
both  a  commercial  and  trust  business,  or  not  less  than  four  hundred 
thousand  dollars  if  it  is  incorporated  to  transact  both  a  savings  and 
trust  business,  and  not  less  than  four  hundred  thousand  dollar^  if  it 
is  incorporated  to  transact  a  commercial,  savings  and  trust  business. 

(e)  In  any  city  in  which  the  population  exceeds  two  hundred  thou- 
sand persons,  not  less  than  three  hundred  thousand  dollars  if  it  is  in- 
corporated to  transact  either  a  commercial  or  savings  business  or  both, 
or  not  less  than  five  hundred  thousand  dollars  if  it  is  incorporated  to 
transact  both  a  commercial  and  trust  business,  or  not  less  than  five 
hundred  thousand  dollars  if  it  is  incorporated  to  transact  both  a  sav- 
ings and  trust  business,  and  not  less  than  five  hundred  thousand  dollars 
if  it  is  incorporated  to  transact  a  commercial,  savings  and  trust  busi- 
ness. For  the  purposes  of  this  section,  the  population  shown  and  deter- 
mined by  the  last  preceding  federal  census,  or  any  subsequent  census 
compiled  and  certified  under  any  law  of  this  state,  shall  be  deemed 
to  be  the  population  of  any  city  in  which  such  corporation  is  to  be 
organized.  If  the  principal  place  of  business  of  any  corporation  so 
organized  is  located  outside  of  the  corporate  limits  of  any  city,  then 
the  population  of  that  portion  of  the  judicial  township  in  which  said 
corporation  is  to  have  its  principal  place  of  business,  which  is  not 
included  within  the  boundaries  of  any  municipal  corporation,  as  such 
population  is  shown  and  determined  by  such  federal  or  subsequent 
official  census,  shall  be  the  basis  for  classifications  under  the  pro- 
visions of  this  section." 

4.  Amended  by  Stats.  1915,  p.  11.36. 

§  2901/2-  Corporations  not  to  use  the  word  "trust"  as  part 
of  corporate  name.  No  corporation  hereafter  formed  shall  use 
the  word  "trust"  or  "trustee"  as  a  part  of  its  corporate  name 
unless  it  shall  be  authorized  by  its  articles  of  incorporation 
to  act  as  executor,  administrator,  guardian,  assignee,  receiver, 
depositary  or  trustee,  nor  shall  any  corporation  hereafter 
formed  accept  or  execute  any  trust  unless  it  shall  have  com- 
plied with  all  the  provisions  of  "An  act  authorizing  certain 
corporations  to  act  as  executor,  and  in  other  capacities,  and  to 
provide  for  and  regulate  the  administration  of  trusts  by  such 
corporation,"  approved  April  sixth,  eighteen  hundred  and 
ninety-one,  and  the  amendment  thereto  approved  April  first, 
eighteen  hundred  and  ninety-seven. 

Corporations  as  executor,  giTardian,  etc.  "An  a^t  authorizing  eertaii>. 
corporations  to  act  as  executor,"  etc.:  See  post,  Appendix,  tit.  "Cor- 
porations." 

Legislation  §  2901 -o.     Added  by  Stats.  1905,  p.  251. 

§  291.    Certain  corporations  to  state  further  facts  in  articles. 

The  articles  of  incorporation  of  any  railroad,  wagon-road,  or 
telegraph  organization  must  also  state : 


97  FORMATION  OF  CORPORATIONS.  §  294 

1.  The  kind  of  road  or  telegraph  intended  to  be  constructed ; 

2.  The  place  from  and  to  which  it  is  intended  to  be  run,  and 
all  the  intermediate  branches ; 

3.  The  estimated  length  of  the  road  or  telegraph  line; 

4.  That  at  least  ten  per  cent  of  the  capital  stock  subscribed 
has  been  paid  in  to  the  treasurer  of  the  intended  corporation. 

Legislation  §  291.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  vol.  2,  p.  121. 

§  292.  Subscription  and  acknowledgment  of  articles  of  in- 
corporation. The  articles  of  incorporation  must  be  suliscribed 
by  three  or  more  persons,  a  majority  of  whom  must  be  residents 
of  this  state,  and  acknowledged  by  each  before  some  officer  au- 
thorized to  take  and  certify  acknowledgments  or  conveyances 
of  real  property. 

The  signature  of  each  person  named  in  said  articles  of  in- 
corporation as  directors  of  such  corporation  shall  be  affixed  to 
said  articles  of  incorporation  and  aeknowledaed  by  each  be- 
fore some  officer  authorized  to  take  and  certify  acknowledg- 
ments of  conveyances  of  real  property.  [Amendment  ap- 
proved 1911;  Stats.  1911,  p.  1112.] 

Legislation  §  292.  1.  Enacted  March  21.  1872,  and  then  read:  "The 
articles  of  incorporation  must  be  subscribed  by  five  or  more  persons, 
three  of  whom  must  be  citizens  of  this  state,  and  acknowledged  by 
each  before  some  officer  authorized  to  take  and  certify  acknowledg- 
ments of  grants  of  real  property." 

2.  Amended  by  Code  Amdts.'  1873-74,  p.  199,  substituting  (1)  "a 
majority"  for  "three,"  (2)  "residents"  for  "citizens,"  and  (3)  "convey- 
ances" for  "grants." 

3.  Amended  by  Stats.  1905,  p.  503,  to  read:  "The  articles  of  incor- 
poration must  be  subscribed  by  three  or  more  persons,  a  majority  of 
whom  must  be  re.sidents  of  this  state,  and  acknowledged  by  each  before 
some  officer  authorized  to  take  and  certify  acknowledgments  or  con- 
veyances of  real  property." 

4.  Amended  by  Stats.  1911,  p.  1112. 

§  293.  Prerequisite  to  filing-  articles.  Amounts  to  be  sub- 
scribed to  be  fixed.  Each  intended  corporation  named  in  sec- 
tion two  hundred  and  ninety-one,  before  filing  articles  of  incor- 
poration, must  have  actually  subscribed  to  its  capital  stock, 
for  eacli  mile  of  tlie  contemplated  work,  the  following  amounts, 
to  wit : 

1.  One  thousand  dollars  per  mile  of  railroads ; 

2.  One  hundred  dollars  per  mile  of  telegraph  lines ; 

3.  Three  hundred  dollars  per  mile  of  wagon-roads. 
Legislation  §  293.     Enacted   March   21,   1872;    based   on   Stats.    1853 

pp.  114,  169;  Stats.  1861,  p.  607. 

§  294.  Prerequisite  to  filing-  articles  of  corporations  for 
profit.     Before  the  articles  of  incorporation  of  any  corporation 

Civ.  Code— 7 


-§  296  CIVIL  CODE.  98 

referred  to  in  the  preceding  section  are  filed,  there  must  be 
paid  for  the  benefit  of  the  corporation,  to  a  treasurer  elected 
by  the  subscribers,  ten  per  cent  of  the  amount  subscribed. 
Legislation  §  294.     Enacted   March    21,   1872;   based   on   Stats.   1850, 

p.  370,  §§  156,  157. 

§  295.  Oath  of  officer  to  subscription  of  stock  and  payment 
of  ten  per  cent.  Before  the  secretary  of  state  issues  to  any 
such  corporation  a  certificate  of  the  filing  of  articles  of  incor- 
poration, there  must  be  filed  in  his  office  an  affidavit  of  the 
president,  secretary,  or  treasurer  named  in  the  articles,  that 
the  required  amount  of  the  capital  stock  thereof  has  been  actu- 
ally subscribed,  and  ten  per  cent  thereof  actually  paid  to  a 
treasurer  for  the  benefit  of  the  corporation. 
Signing  fictitious  name:  Pen.  Code,  §  557. 

Legislation  §  295.  Enacted  March  21.  1872;  based  on  Dannebroge 
Mining  Co.  v.  Ailment,  26  Cal.  286;  Mokelumne  Hill  Mining  Co.  v. 
Woodbury,  14  Cal.  424.  The  code  commissioners  say:  "This  provision, 
existing  in  many  of  our  laws,  is  made  applicable  to  all  not  purely 
religious  or  benevolent,  or  to  promote  education,  art  or  literature." 

§296.  Secretary  of  state  to  issue  certificate  of  incorpora- 
tion. Not  to  file  copy  of  copy.  Upon  filing  the  articles  of  incor- 
poration in  the  office  of  the  county  clerk  of  the  county  in 
which  the  principal  business  of  the  company  is  to  be  trans- 
acted, and  a  copy  thereof  certified  by  the  county  clerk  Avith 
the  secretary  of  state,  and  the  affidavit  mentioned  in  the  last 
section  where  such  affidavit  is  required,  the  secretary  of  state 
must  issue  to  the  corporation,  over  the  great  seal  of  the  state, 
a  certificate  that  a  copy  of  the  articles  containing  the  re- 
quired statement  of  facts  has  been  filed  in  his  office,  and 
thereupon  the  persons  signing  the  articles  and  their  associates 
and  successors  shall  be  a  body  politic  and  corporate  by  the 
name  stated  in  the  certificate,  and  for  the  term  of  fifty  years, 
unless  it  is,  in  the  articles  of  incorporation,  otherwise  stated, 
or  in  this  code  otherwise  specially  provided ;  provided,  how- 
.  ever,  that  the  secretary  of  state  shall  not  file  any  copy  of  the 
copy  of  any  articles,  or  issue  any  certificate  of  incorporation 
to  any  corporation,  which  articles  set  forth  the  corporate 
name  of  any  corporation  heretofore  organized  in  this  state, 
or  file  any  copy  of  any  articles,  or  issue  any  certificate  of 
incorporation  to  any  corporation  existing  at  the  time  of  filing 
said  articles,  which  articles  set  forth  a  name  so  closely  resem- 
bling the  name  of  such  corporation  as  will  tend  to  deceive. 
The  secretary  of  state  shall  issue  and  file  in  his  office  a  dupli- 
cate of  the  certificate  hereinabove  provided  for  and  copies 
thereof,  duly  certified  by  the  secretary  of  state,  shall  have  the 
same  force  and  effect  in  evidence  as  the  original.  (Amend- 
ment approved  1915;  Stats.  1915,  p.  1039.) 


296.  Secretary  of  State  to  Issue  Certificate  of  Incorporation; 
Not  to  File  Copy  of  Copy.  Upon  filing  the  articles  of  incorpora- 
tion in  the  office  [  ]  of  the  secretary  of  state,  and  the  affi- 
davit mentioned  in  the  last  section  where  such  affidavit  is  re- 
quired, the  secretary  of  state  must  issue  to  the  corporation,  over 
the  great  seal  of  the  state,  a  certificate  that  [the  original  articles] 
containing  the  required  statement  of  facts  [have]  been  filed  in 
his  office,  and  thereupon  the  persons  signing  the  articles  and 
their  associates  and  successors  shall  be  a  body  politic  and  cor- 
porate by  the  name  stated  in  the  certificate,  and  for  the  term  of 
fifty  years,  unless  it  is,  in  the  articles  of  incorporation,  otherwise 
stated,  or  in  tliis  code  otherwise  specially  provided;  [provided, 
however,  that  no  corporation  shall  be  authorized  to  transact  any 
business  until  it  shall  have  filed  in  the  office  of  the  county  clerk 
of  the  county  in  which  its  principal  business  is  to  be  transacted, 
a  copy  of  its  articles  of  incorporation  certified  by  the  secretary 
of  state;  provided,  further,]  that  the  secretary  of  state  shall  not 
file  [the  original  articles  of  incorporation,  or  issue  any  certified 
copy  thereof,]  or  issue  any  certificate  of  incorporation  to  any 
incorporation,  which  articles  set  forth  the  corporate  name  of  any 
corporation  heretofore  organized  in  this  [state,  or]  which  articles 
set  forth  a  name  so  closely  resembling  the  name  of  such  cor- 
poration as  will  tend  to  deceive.  [  ]  (in  effect  90  days  from 
and  after  April  29,  1921.     Stats.  1921,  Chap.   130.)  '    Civ.  Code,   1921. 


39T.  Copy  of  Articles  Prima  Facie  Evidence.  A  copy  of  any 
articles  of  incorporation  filed  in  pursuance  [to]  this  chapter,  and 
certified  by  the  secretary  of  state,  (  ]  must  be  received  in  all 
the  courts  of  this  state  and  other  places,  as  prima  facie  evi- 
dence of  the  facts  therein  stated.  (In  effect  90  days  from  and 
after  April   29,    1921.      Stats.    1921,    Chap.    130.)  Civ.  Code,  1921. 


99  FORMATION  OF  CORPORATIONS.  §  297 

Banking  corporation  cannot  take  name  of  friendly  society:  See  Code 
Civ.  Proc,  §  1276. 

Legislation  §  296.  1.  Enacted  March  21,  1872,  and  then  read:  "Upon 
the  filing  of  the  articles  of  incorporation  in  the  office  of  the  county 
clerk  of  the  county  in  which  the  business  of  the  company  is  to  be 
transacted,  and  a  copy  thereof  with  the  secretary  of  state,  the  secre- 
tary of  state  must  issue  to  the  corporation,  over  the  great  seal  of  the 
state,  a  certificate  that  such  articles,  containing  the  required  statement 
of  facts,  have  been  filed  in  his  office;  and  thereafter  the  persons  sign- 
ing the  same,  and  their  associates  and  assigns,  are  a  body  politic  and 
corporate,  by  the  name  stated  in  the  certificate,  and  for  the  term  of 
fifty  years,  unless  it  is  in  the  articles  of  incorporation  otherwise  stated, 
or  in  this  part  otherwise  specially  provided." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  199,  and  read  like  the 
section  as  adopted  in  1901  (post)  except  that  it  did  not  contain  the 
proviso  added  in  1901.     See  post. 

3.  Amended  by  Stats.  1901,  p.  629,  to  read:  "Upon  filing  the  articles 
of  incorporation  in  the  office  of  the  county  clerk  of  the  county  in 
which  the  principal  business  of  the  company  is  to  be  transacted,  and 
a  copy  thereof  certified  by  the  county  clerk  with  the  secretary  of 
state,  and  the  affidavit  mentioned  in  the  last  section  where  such  affi- 
davit is  required,  the  secretary  of  state  must  issue  to  the  corporation, 
over  the  great  seal  of  the  state,  a  certificate  that  a  copy  of  the  articles 
containing  the  required  statement  of  facts  has  been  filed  in  his  office, 
and  thereupon  the  persons  signing  the  articles  and  their  associates 
and  successors  shall  be  a  body  politic  and  corporate  by  the  name 
stated  in  the  certificate,  and  for  the  term  of  fifty  years,  unless  it  is, 
in  the  articles  of  incorporation,  otherwise  stated,  or  in  this  code 
otherwise  specially  provided;  provided,  however,  that  the  secretary  of 
state  shall  not  file  any  copy  of  the  copy  of  any  articles,  or  issue  any 
certificate  of  incorporation  to  any  corporation,  which  articles  set  forth 
the  corporate  name  of  any  corporation  heretofore  organized  in  this 
state,  or  file  any  copy  of  any  articles,  or  issue  any  certificate  of  in- 
corporation to  any  corporation  existing  at  the  time  of  filing  said  arti- 
cles, which  articles  set  forth  a  name  so  closely  resembling  the  name  of 
such  corporation  as  will  tend  to  deceive." 

4.  Amended  by  Stats.  1915,  p.  1039. 

§  297.  Copy  of  articles  prima  facie  evidence.  A  copy  of 
any  articles  of  incorporation  filed  in  pursuance  of  this  chapter, 
and  certified  by  the  secretary  of  state,  or  by  the  county  clerk 
of  the  county  where  the  original  articles  shall  have  been  filed, 
must  be  received  in  all  the  courts  of  this  state,  and  other 
places,  as  prima  facie  evidence  of  the  facts  therein  stated. 
[Amendment  approved  1895;  Stats.  1895,  p.  30.] 

Legislation  §  297.  1.  Enacted  March  21,  1872  (based  on  Stats.  1862, 
p.  199,  §  3;  Stats.  1853,  p.  83,  §  3;  Stats.  1850,  p.  370,  §  158;  Stats.  1861, 
p.  566,  §  17),  and  then  read:  "A  copy  of  any  articles  of  incorporation 
filed  in  pursuance  of  this  chapter,  and  certified  by  the  secretary  of 
state,  must  be  received  in  all  the  courts  and  other  places  as  primary 
evidence  of  the  facts  therein  stated." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  200,  and  then  read  as  at 
present,  except  for  the  changes  made  in  1895. 


§  299  CIVIL  CODE.  100 

3.  Ameuded  by  Stats.  1895,  p.  30,  inserting  (1)  "or  by  the  county 
clerk  of  the  county  where  the  original  articles  shall  have  been  filed," 
and  (2)   "of  this  state"  after  "in  all  the  courts."' 

§  297a.  Restoration  of  lost  original  articles  of  incorpora- 
tion. "Whenever  the  articles  of  incorporation  of  any  corpora- 
tion have  been,  or  may  hereafter  be,  destroyed  by  conflagra- 
tion or  other  public  calamity,  a  copy  of  the  certified  copy  of 
the  articles  of  incorporation  of  such  corporation  filed  in  the 
office  of  the  secretary  of  state  pursuant  to  the  provisions  of 
section  two  hundred  and  ninety-six  of  this  code,  duly  certified 
by  such  secretary  of  state,  may  be  filed  in  the  office  of  the 
county  clerk  of  the  county  where  such  articles  of  incorpora- 
tion were  on  file  at  the  time  of  their  loss  or  destruction.  Any 
such  copy  filed  pursuant  to  this  section  shall  have  the  same 
force  and  effect  as  the  document  so  lost  or  destroyed. 
Legislation  §  297a.     Added  by  Stats.  1906,  p.  S3. 

§  298.  Who  are  members  and  who  stockholders  of  a  cor- 
poration. The  owners  of  shares  in  a  corporation  Avhich  has 
a  capital  stock  are  called  stockholders.  If  a  corporation  has 
no  capital  stock,  the  corporators  and  their  successors  are  called 
members. 

Who  are  stockholders:   See  post,  §  322. 

Legislation  §  298.     Enacted   March   21,   1872. 

§  299.  When  members  die,  successors  to  be  elected.  [Re- 
pealed 1874;  Code  Amdts.  1873-74,  p.  200.] 

Legislation  §  299.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  200. 

§  299.  Filing-  articles  of  incorporation.  No  corporation 
hereafter  formed  must  pui-ehase,  locate,  or  hold  property,  in 
any  county  in  this  state,  other  than  the  county  in  Avhich  its 
original  articles  of  incorporation  are  filed,  Avithout  filing  a 
copy  of  the  copy  of  its  articles  of  incorporation  filed  in  the 
office  of  the  secretary  of  state,  duly  certified  by  such  secretary 
of  state,  in  the  office  of  the  county  clerk  of  the  county  in  Avhich 
such  property  is  situated,  within  sixty  days  after  such  pur- 
chase or  location  is  made.  Every  corporation  now  in  exist- 
ence, whether  formed  under  the  provisions  of  this  code  or  not, 
must,  Avithin  ninety  days  after  the  passage  of  this  section,  file 
such  certified  copy  of  the  copy  of  its  articles  of  incorporation 
in  the  office  of  the  county  clerk  of  every  county  in  this  state 
in  which  it  holds  any  property,  except  the  county  where  the 
original  articles  of  incorporation  are  filed ;  and  if  any  corpora- 
tion hereafter  acquires  any  property  in  a  county  other  than 
that  in  which  it  now  holds  property,  it  must,  within  ninety 
days  thereafter,  file  Avith  the  clerk  of  such  county  such  cer- 


299.  Filing  Articles  of  Incorporation.  No  corporation  here- 
after formed  must  purchase,  locate,  or  hold  property  In  any 
county  in  the  Tstate  without]  filing-  a  certified  copy  of  its  articles 
of  incorporation  filed  in  the  office  of  the  secretary  of  [state  with] 
the  county  clerk  of  the  county  in  which  such  property  is  situ- 
ated, within  sixty  days  after  such  purchase  or  location  is  made. 
Every  corporation  [now  existing]  whether  formed  under  the  pro- 
visions of  this  code  or  not,  must,  within  ninety  days  after  the 
passage  of  this  section,  [file  a  copy]  of  the  copy  of  its  articles 
of  incorporation  [filed]  in  the  office  of  the  [secretary  of  state, 
duly  certified  by  the  secretary  of  state  in  the  office  of  the] 
county  clerk  of  every  county  in  the  state  in  which  it  holds  any 
property,  except  [where  certified  copies  have  heretofore  been 
filed,  or  where  original  articles  are  on  file  under  an  act  in  force 
at  the  time  of  filing  thereof;]  and  if  any  corporation  hereafter 
acquires  any  property  in  a  county  other  than  that  in  which  it 
[holds  property,]  it  must  within  ninety  days  thereafter  file  with 
the  clerk  of  [said]  county,  such  certified  copy  of  the  copy  of  its 
articles  of  incorporation [,  or  if  incorporated  after  the  passage 
hereof,  a  certified  copy  of  the  original  articles  of  Incorporation 
filed  in  the  office  of  the  secretary  of  state].  The  copies  filed 
with  the  several  county  [clerks,  have]  the  same  force  and  effect 
in  evidence  as  the  originals.  Any  corjSforation  failing-  to  comply 
with  the  provisions  of  this  section  cannot  maintain  or  defend 
any  action  or  proceeding  in  relation  to  such  property,  its  rents, 
issues,  or  profits,  until  such  [certified  copy  of  its]  articles  of 
[incorporation  are  filed]  at  the  places  directed  by  the  general 
law  and  this  section;  provided,  that  all  corporations  are  liable  in 
damages  for  any  and  all  loss  that  may  arise  by  the  failure  of  such 
corporation  to  perform  any  of  the  foregoing  duties  within  the 
time  mentioned  in  this  section;  and  provided,  further,  that  the 
said  damages  may  be  recovered  in  an  action  brought  in  any 
court  of  this  state  of  competent  jurisdiction,  by  any  party  or 
parties  suffering  the  same.  (In  effect  90  days  from  and  after 
April  29,   1921.     Stats.   1921,   Chap.   130.)  Civ.   Code,   1921. 


101  FORMATION  OF  CORPORATIONS.  §  299 

tified  copy  of  the  copy  of  its  articles  of  incorporation.  The 
copies  filed  with  the  several  county  clerks,  and  certified  copies 
thereof,  have  the  same  force  and  effect  in  evidence  as  the  origi- 
nals. Any  corporation  failing  to  comply  with  the  provisions 
of  this  section  cannot  maintain  or  defend  any  action  or  pro- 
ceeding in  relation  to  such  property,  its  rents,  issues,  or  profits, 
until  such  articles  of  incorporation,  and  such  certified  copy  of 
its  articles  of  incorporation,  and  such  certified  copy  of  the  copy 
of  its  articles  of  incorporation,  are  filed  at  the  places  directed  by 
the  general  law  and  this  section;  provided,  that  all  corpora- 
tions are  liable  in  damages  for  any  and  all  loss  that  may  arise 
by  the  failure  of  such  corporation  to  perform  any  of  the  fore- 
going duties  M-ithin  the  time  mentioned  in  this  section ;  and 
provided  further,  that  the  said  damages  may  be  recovered  in 
an  action  brought  in  any  court  of  this  state  of  competent  juris- 
diction, by  any  party  or  parties  suffering  the  same.  [Amend- 
ment approved  1905 ;  Stats.  1905,  p.  556.] 

Right  to  purchase  real  and  personal  estate:  See  post,  §  354. 
Legislation  §  299.  1.  Added  by  Code  Amdts.  1875-76,  p.  71,  and  then 
read:  "Xo  corporation  hereafter  formed  under  the  provisions  of  this 
chapter  shall  purchase,  locate,  or  hold  property  in  any  county  of  this 
state,  without  filing  a  certified  copy  of  the  certificate  of  its  articles  of 
incorporation  in  the  office  of  the  county  clerk  of  the  county  in  which 
such  property  is  situated,  within  sixty  days  after  such  purchase  or 
location  is  made,  and  every  corporation  now  in  existence  must,  within 
ninety  days  after  the  passage  of  this  act,  file  a  certified  copy  of  the 
certificate  of  its  articles  of  incorporation  as  provided  in  this  section, 
and  a  certified  copy  of  such  copy  shall,  as  evidence,  have  the  same 
force  and  effect  as  a  certified  copy  of  the  original.  Any  corporation 
failing  to  comply  with  the  provisions  of  this  section  shall  not  main- 
tain or  defend  any  action  or  proceeding  in  relation  to  such  property." 
2.  Amended  by  Code  Amdts.  1877-78,  p.  76,  and  then  read:  "No  cor- 
poration hereafter  formed  shall  purchase,  locate,  or  hold  property  in 
any  county  in  this  state  without  filing  a  copy  of  the  copy  of  its  articles 
of  incorporation  filed  in  the  office  of  the  secretar}'  of  state,  duly  cer- 
tified by  such  secretary  of  state,  in  the  office  of  the  county  clerk  of 
the  county  in  which  such  property  is  situated,  within  sixty  days  after 
such  purchase  or  location  is  made.  Every  corporation  now  in  exist- 
ence, whether  formed  under  provisions  of  this  code  or  not,  must,  within 
ninety  days  after  the  passage  of  this  section,  file  such  certified  copy 
of  the  copy  of  its  articles  of  incorporation  in  the  office  of  the  county 
clerk  of  every  county  in  this  state  in  which  it  holds  any  property, 
and  if  any  such  corporation  hereafter  acquires  any  property  in  a 
county  other  than  that  in  which  it  now  holds  property,  it  must,  within 
ninety  days  thereafter,  file  with  the  clerk  of  such  county  such  certified 
copy  of  the  copy  of  its  articles  of  incorporation.  The  copies  so  filed 
with  the  several  county  clerks,  and  certified  copies  thereof,  shall  have 
the  same  force  and  effect  in  evidence  as  would  the  originals.  Any 
corporation  failing  to  comply  with  the  provisions  of  this  section  shall 
not  maintain  or  defend  any  action  or  proceeding  in  relation  to  such 
property,  its  rents,  issues,  or  profits.  Any  corporation  which  has  not 
heretofore  filed  a  certified  copy  of  the  certificate  of  its  articles  of  in- 
corporation  may   avail   itself   of   the   provisions   of   this   act  witli   the 


§  300  CIVIL  CODE.  102 

same  effect  as  if  it  had  filed  such  certified  copy  of  such  certificate; 
provided,  that  this  act  shall  not  affect  any  pending  litigation,  or  any 
suit  now  pending  in  court." 

3.  Amended  by  Code  Amdts.  1880,  p.  13,  and  then  read  as  at  present, 
except  for  the  changes  made  in  1905. 

4.  Amendment  by  Stats.  1901,  p.  344;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  556,  (1)  in  first  sentence,  (a)  changing 
"shall"  to  "must"  before  "jjurchase,"  and  "of"  to  "in"  before  "this 
state,"  (b)  adding,  after  "this  state,"  the  words  "other  than  the  county 
in  which  its  original  articles  of  incorporation  are  filed";  (2)  in  sen- 
tence beginning  "Everj^  corporation,"  changing  (a)  "acquire"  to  "ac- 
quires" before  "any  property,"  and  (b)  "any"  to  "a"  before  "county"; 
(3)  in  sentence  beginning  "The  copies,"  omitting  (a)  "so"  before 
"filed,"  (b)  "shall"  before  "have  the  same,"  and  (c)  "would"  before 
"the  originals";  (4)  in  sentence  beginning  "Any  corporation,"  chan- 
ging (a)  "shall  not"  to  "cannot"  before  "maintain,"  and  (b)  "shall  be" 
to  "are"  before  "filed"  and  before  "liable." 

§  300.     Capital  stock  of  banking  corporations.     Dividends. 

Every  corporation  that  has  been  or  may  be  created  under  the 
general  laws  of  this  state,  doing  a  banking  business  therein, 
and  which  has  no  capital  stock,  may  elect  to  have  a  capital 
stock,  and  may  issue  certificates  of  stock  therefor,  in  the  same 
manner  as  corporations  formed  under  the  provisions  of  chap- 
ter one,  article  one,  of  the  Civil  Code,  relating  to  the  forma- 
tion of  corporations;  provided,  that  no  such  corporation  shall 
use  or  convert  any  moneys  or  funds  theretofore  belonging  to 
it,  or  under  its  control,  into  capital  stock ;  but  such  funds  or 
moneys  must  be  held  and  managed  only  for  the  purposes  and 
ill  the  manner  for  w^hich  they  were  created.  Before  such 
change  is  made,  a  majority  of  the  members  of  such  corpora- 
tion present  at  a  meeting  called  for  the  purpose  of  considering 
the  proposition  whether  it  is  best  to  have  a  capital  stock,  its 
amount,  and  the  number  of  shares  into  which  it  shall  be  di- 
vided, must  vote  in  favor  of  having  a  capital  stock,  fix  the 
amount  thereof,  and  the  number  of  shares  into  which  it  shall 
be  divided.  Notice  of  the  time  and  place  of  holding  such 
meeting,  and  its  object,  must  be  given  by  the  president  of  such 
corporation,  by  publication  in  some  newspaper  printed  and 
published  in  the  county,  or  city  and  county,  in  which  the  prin- 
cipal place  of  business  of  the  corporation  is  situated,  at  least 
once  a  week  for  three  successive  weeks  prior  to  the  holding 
of  the  meeting.  A  copy  of  the  proceedings  of  this  meeting, 
giving  the  number  of  persons  present,  the  votes  taken,  the  no- 
tice calling  the  meeting,  the  proof  of  its  publication,  the 
amount  of  capital  actually  subscribed,  and  by  whom,  all  duly 
certified  by  the  president  and  secretary  of  the  corporation, 
must  be  filed  in  the  offices  of  the  secretary  of  state  and  clerk 
of  the  county  where  the  articles  of  incorporation  are  filed. 


103  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.         §  300a 

Thereafter  such  corporation  is  possessed  of  all  the  rights  and 
powers,  and  is  subject  to  all  the  obligations,  restrictions,  and 
limitations,  as  if  it  had  been  originally  created  with  a  capital 
stock;  and  provided  further,  that  no  bank  in  this  state  shall 
ever  pay  any  dividend  upon  so-called  guaranty  notes,  nor  upon 
any  stock,  except  upon  the  amount  actually  paid  in  money 
into  said  capital  upon  such  stock,  and  any  payment  made  in  vio- 
lation of  this  provision  shall  render  all  officers  and  directors 
consenting  to  the  same  jointly  and  severally  liable  to  the 
depositors  to  the  extent  thereof. 

Act  regulating  business  of  banking:   See  post,  Appendix,  tit.  "Bank- 
ing." 

Legislation  §  300.     Added  by  Code   Amdts.  1877-78,  p.  77. 

§  300a.  Change  of  name ;  filing-  copy  of  decree.  Every  cor- 
poration which  has  changed  its  name  under  the  provisions  of 
sections  one  thousand  two  hundred  and  seventy-five,  one  thou- 
sand two  hundred  and  seventy-six,  one  thousand  two  hundred 
and  seventy-seven,  one  thousand  two  hundred  and  seventy- 
eight,  and  one  thousand  two  hundred  and  seventy-nine  of  the 
Code  of  Civil  Procedure,  must  file  in  the  office  of  secretary  of 
state  and  in  the  office  of  the  county  clerk  of  each  county  in 
which  the  original  articles  or  certified  copies  thereof  are  re- 
quired by  law  to  be  filed,  a  certified  copy  of  the  decree  of  the 
court  changing  such  name.  [Amendment  approved  1909; 
Stats.  1909,  p.  973.] 

Change  of  name  by  corporation:  See  Code  Civ.  Proc,  §  1276. 
Legislation  §  300a.  1.  Added  by  Stats.  1903,  p.  256,  and  then  read: 
"Every  corporation  which  has  clianged  its  name  under  the  provisions 
of  sections  1275,  1276,  1277,  1278  and  1279,  of  the  Code  of  Civil  Pro- 
cedure, must  file  in  the  office  of  the  secretary  of  state,  a  certified  copy 
of  the  decree  of  the  court,  changing  such  name." 
2.  Amended  by  Stats.  1909,  p.  973. 

ARTICLE  IL 
By-Laws,   Directors,  Elections,   and  Meetings. 

§  301.     Adoption  of  by-laws,  when,  how,  and  by  whom. 

§  302.     Election  of  directors;  notice  of. 

§  302a.  Financial  statement  to  stockholders  upon  request  of  10  per  cent. 

§  303.     By-laws  may  provide  for  what. 

§  304.  By-laws  to  be  copied  and  open  to  public  inspection.  Amendment 
of. 

§  305.     Powers   of  directors   of   corporations. 

§  306.  Directors  must  be  elected  and  by-laws  adopted  at  first  meeting. 
[Repealed.] 

§  307.     Elections,  how  conducted. 

§  308.     Organization  of  board  of  directors,  etc. 

§  309.  Dividends  to  be  made  from  surplus  profits.  Increase  and  reduc- 
tion of  capital  stock. 

§  310.     Removal  of  directors. 

§311.     Justice  of  the  peace  may  order  meeting  when. 


§  301  CIVIL   CODE.  104 

§312.     Corporations;  election  in,  majority  of  stock  must  be  represented; 

election  set  aside,  when  and  by  whom. 
§  313.     Stock  of  minors,  insane,  etc.,  how  represented. 
§  314.     Election  may  be  postponed. 
§  315.     New  election  may  be  ordered  by  the  court. 
§  316.     False  certificate,  report,  or  notice  to  make  officers  liable. 
§  317.     Stockholders'  waiver  of  notice  of  meetings. 
§  318.     Proceedings  at  meeting  to  be  binding. 
§  319.     Meetings,  where  held. 
§  320.     Special  meetings,  how  called. 
§  320a.  Waiver  of  notice  of  corporation  meeting. 
§  321.     Certain  books  to  be  open  for  inspection. 
§  321a.  Corporation  may  change  its  principal  place  of  business. 
§  321b.  Voting  at  stockholders'  meetings.     Proxy.     Eevocation. 

§  301.     Adoption   of  by-laws,   when,   how,   and  by  whom. 

Every  corporation  formed  under  this  title  must,  within  one 
month  after  filing  articles  of  incorporation,  adopt  a  code  of 
by-laws  for  its  government  not  inconsistent  with  the  constitu- 
tion and  laws  of  this  state.  The  assent  of  stockholders  repre- 
senting a  majority  of  all  the  subscribed  capital  stock,  or  of  a 
majority  of  the  members,  if  there  be  no  capital  stock,  is  neces- 
sary to  adopt  by-laws,  if  they  are  adopted  at  a  meeting  called 
for  that  purpose ;  and  in  the  event  of  such  meeting  being 
called,  two  weeks'  notice  of  the  same  by  advertisement  in 
some  newspaper  published  in  the  county  in  which  the  prin- 
cipal place  of  business  of  the  corporation  is  located,  or  if  none 
is  published  therein,  then  in  a  paper  published  in  an  adjoining 
county,  must  be  given  by  order  of  the  acting  president.  The 
written  assent  of  the  holders  of  two  thirds  of  the  stock,  or  of 
two  thirds  of  the  members,  if  there  be  no  capital  stock,  shall 
be  effectual  to  adopt  a  code  of  by-laws  without  a  meeting  for 
that  purpose.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  200.] 

Repeal  and  amendment  of  by-laws:  Post,  §  301. 

Legislation  §  301.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  34S.  §7;  Stats.  1862,  p.  540,  §  3;  Stats.  1861,  p.  85,  §  4),  and  then 
read:  "Every  corporation  formed  under  this  title  must,  at  a  meeting 
of  its  stockholders  or  members,  to  be  held  within  one  month  after 
filing  articles  of  incorporation,  adopt  a  code  of  by-laws  for  its  govern- 
ment not  inconsistent  with  the  constitution  and  laws  of  this  state. 
Notice  of  such  meeting,  by  order  of  the  acting  president,  specifying 
its  object,  must  be  published  two  weeks  in  some  newspaper  published 
in  the  county  where  the  meeting  is  to  be  held;  or  if  none  is  published 
therein,  then  in  a  paper  published  in  an  adjoining  county.  In  the 
adoption  of  the  by-laws,  each  stockholder  has  as  many  votes  as  he 
holds  shares  of  stock;  if  there  is  no  capital  stock,  each  member  has 
one  vote.  A  majority  of  all  the  subscribed  capital  stock,  or  of  the 
members,  if  there  is  no  capital  stock,  is  necessary  to  adopt  the  by-laws, 
or  anv  one  of  them." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  200. 

3.  Amendment  by  Stats.  1901,  p.  344;  unconstitutional.  See  note, 
§  4,  ante. 


105  BY-LAWS,   DIRECTORS,  ELECTIONS  AND   MEETINGS.         §  302a 

§  302.  Election  of  directors;  notice  of.  The  directors  of  a 
corporation  must  be  elected  annually  by  the  stockholders  or 
members,  and  if  no  provision  is  made  in  the  by-laws  for  the 
time  of  election,  the  election  must  be  held  on  the  first  Tuesday 
in  June.  Notice  of  such  election  must  be  given  as  prescribed 
in  section  three  hundred  [and]  one,  unless  all  of  the  stock- 
holders waive  such  notice  in  writing.  [Amendment  approved 
1909;  Stats.  1909,  p.  48.] 

Postponing  election:   Post,  §  314. 

Legislation  §  302.     1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 

p.  347,  §  7;  18.53,  p.  102,  §  11;  1861,  p.  607;  1869-70,  p.  577,  §  1. 

2.  Amendment  by  Stats.  1901,  p.  343;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  557,  omitting  "and  the  right  to  vote 
determined"  before  "as  prescribed  in  section  301";  the  code  commis- 
sioner saying,  "The  right  to  vote  is  controlled  by  §  307." 

4.  Amended  by  Stats.  1909,  p.  48,  adding  "unless  all  of  the  stock- 
holders waive  such  notice  in  writing." 

§  302a.  Financial  statement  to  stockholders  upon  request 
of  10  per  cent.  Upon  the  written  request  of  not  less  than 
ten  per  cent  of  the  stockholders,  presented  not  less  than  two 
weeks  prior  to  the  time  of  the  election  provided  for  by  section 
three  hundred  two  of  this  code,  there  must  be  served  upon 
each  stockholder,  at  least  one  week  prior  to  such  election, 
one  copy  of  a  financial  statement  of  the  affairs  of  the  corpora- 
tion, which  must  show  the  authorized  capital  stock  of  the 
corporation,  the  amount  of  capital  stock  subscribed,  the 
amount  of  capital  actually  paid  in,  the  assets  and  the  surplus 
and  undivided  profits  of  the  corporation,  the  amount  paid  to 
employees,  the  names  and  addresses  of  all  the  officers  and 
directors  of  the  corporation,  the  amount  of  mortgages,  bonded 
or  other  indebtedness  of  the  corporation  and  the  amount  of 
the  last  annual,  semi-annual  or  quarterly  dividend,  and  a  gen- 
eral summary  of  the  business  transacted  by  the  corporation 
since  the  last  preceding  annual  meeting.  The  financial  state- 
ment herein  referred  to  shall  be  signed  by  the  president  and 
secretary  of  the  corporation  and  shall  be  sworn  to  by  such 
officers  before  some  officer  authorized  by  law  to  administer 
oaths,  and  must  be  personally  served  upon  each  stockholder 
or,  in  lieu  of  personal  service,  must  be  sent  by  mail  addressed 
to  each  stockholder  at  his  place  of  residence  if  known,  or  if 
not  known,  at  the  place  where  the  principal  office  of  the  cor- 
poration is  situated.  The  president  or  secretary  of  any  cor- 
poration who  with  intent  to  deceive  shall  sign  a  false  finan- 
cial statement  shall  be  deemed  guilty  of  a  misdemeanor. 
Legislation  §  302a.     Added  by  Stats.  1915,  p.  1271. 


§  303  CIVIL   CODE.  106 

§  303.  By-laws  may  provide  for  what.  A  corporation  may, 
by  its  by-laws,  Avhere  no  other  provision  is  specially  made,  pro- 
vide for: 

1.  The  time,  place,  and  manner  of  calling  and  conducting  its 
meetings,  and  may  dispense  with  notice  of  all  regular  meetings 
of  stockholders  or  directors. 

2.  The  number  of  stockholders  or  members  constituting  a 
quorum. 

3.  The  mode  of  voting  by  proxy. 

4.  The  qualifications  and  duties  of  directors,  and  also  the 
time  of  their  annual  election,  and  the  mode  and  manner  of 
giving  notice  thereof. 

5.  The  compensation  and  duties  of  officers. 

6.  The  manner  of  election  and  tenure  of  office  of  all  officers 
other  than  the  directors ;  and, 

7.  Suitable  penalties  for  violations  of  by-laws,  not  exceed- 
ing in  any  case  one  hundred  dollars  for  any  one  offense. 

8.  The  newspaper  in  which  all  notices  of  the  meetings  of 
stockholders  or  board  of  directors,  notice  of  which  is  required, 
shall  be  published,  Avhich  must  be  some  newspaper  published 
in  the  county  where  the  principal  place  of  business  of  the 
corporation  is  located,  or  if  none  is  published  therein,  then  in 
a  newspaper  published  in  an  adjoining  county;  provided,  that 
when  the  by-laws  prescribe  the  newspaper  in  which  said  pub- 
lication shall  be  made,  if  from  any  cause  at  the  time  any  pub- 
lication is  desired  to  be  made,  the  publication  of  such  news- 
paper shall  have  ceased,  the  board  of  directors  may,  by  an 
order  entered  on  the  records  of  the  corporation,  direct  the 
publication  to  be  made  in  some  other  ncAvspaper  published  in 
the  county,  or  if  none  is  published  therein,  then  in  an  ad.join- 
ing  county.      [Amendment  approved  1889;  Stats.  1889,  p.  365.] 

By-laws  of:   Post.  §§  305,  308,  323,  344,  599. 

Quorum,  provision  for:   See  post,  §  312. 

Legislation  §  303.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  7),  and  then  read:  "A  corporation  may,  by  its  by-laws,  where 
no  other  provision  is  specially  made,  provide:  1.  The  time,  place,  and 
manner  of  calling  and  conducting  their  meetings;  2.  The  number  of 
stockholders  or  members,  or  the  quantity  of  stock  constituting  a 
quorum;  3.  The  number  of  shares  which  entitles  the  stockholders  re- 
spectively to  one  or  more  vot^s;  4.  The  mode  of  voting  by  proxy; 
5.  The  time  and  place  of  the  annual  election  for  directors,  and  the 
mode  and  manner  of  giving  notice  thereof;  6.  The  mode  of  selling 
shares  for  the  non-payment  of  assessments  or  installments;  7.  The  com- 
pensation and  duties  of  officers;  8.  The  tenure  of  office  of  subordinate 
officers;  and,  9.  Suitable  penalties  for  violations  of  by-laws,  not  ex- 
ceeding, in  any  case,  one  hundred  dollars  for  any  one  offense." 

2.  Amendedby  Code  Amdts.  1873-74,  p.  201,  and  then  read:  "A  cor- 
poration may,  by  its  by-laws,  whore  no  other  provision  is  specially 
made,  provide  for:   One.     The  time,  place,  and  manner  of  calling  and 


107  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  304 

conducting  its  meetings.  Two.  The  number  of  stockholders  or  mem- 
bers constituting  a  quorum.  Three.  The  mode  of  voting  by  proxy. 
Four.  The  time  of  the  annual  election  for  directors,  and  the  mode  and 
manner  of  giving  notice  thereof.  Five.  The  compensation  and  duties 
of  officers.  Six.  The  manner  of  election  and  the  tenure  of  office  of 
all  officers  other  than  the  directors;  and,  Seven.  Suitable  penalties 
for  violations  of  by-laws,  not  exceeding,  in  any  case,  one  hundred  dol- 
lars for  any  one  offense." 

3.  Amended  by  Stats.  1889,  p.  365. 

4.  Amendment  by  Stats.  1901,  p.  345;  unconstitutional.  See  note, 
§  4,  ante. 

§  304.  By-laws  to  be  copied  and  open  to  public  inspection. 
Amendment  of.  All  by-laws  adopted  must  be  certified  by  a 
majority  of  the  directors  and  secretary  of  the  corporation,  and 
copied  in  a  legible  hand,  in  some  book  kept  in  the  office  of  the 
corporation,  to  be  known  as  the  "book  of  by-laws,"  and  the 
book  must  then  be  open  to  the  inspection  of  the  public  during 
office  hours  each  day  except  holidays.  The  by-laws  may  be  re- 
pealed or  amended,  or  new  by-laws  may  be  adopted,  at  the 
annual  meeting,  or  at  any  other  meeting  of  the  stockholders 
or  members,  called  for  that  purpose  by  the  directors,  by  a  vote 
representing  two  thirds  of  the  subscribed  stock,  or  by  two 
thirds  of  the  members.  The  written  assent  of  the  holders  of 
two  thirds  of  the  stock,  or  two  thirds  of  the  members  if  there 
is  no  capital  stock,  is  effectual  to  repeal  or  amend  any  by-law, 
or  to  adopt  additional  by-laws.  The  power  to  repeal  and 
amend  the  by-laws,  and  adopt  new  by-laws,  may,  by  a  similar 
vote  at  any  such  meeting,  or  similar  written  assent,  be  dele- 
gated to  the  board  of  directors.  The  power,  when  delegated, 
may  be  revoked  by  a  similar  vote,  at  any  regular  meeting  of 
the  stockholders  or  members.  AVhenever  any  amendment  or 
new  by-law  is  adopted,  it  must  be  copied  in  the  book  of  by- 
laws with  the  original  by-laws,  and  immediately  after  them. 
If  any  by-law  is  repealed,  the  fact  of  repeal,  with  the  date  of 
the  meeting  at  which  the  repeal  was  enacted,  or  written  assent 
was  filed,  must  be  stated  in  said  book.  Until  copied  or  stated 
as  hereinbefore  required,  no  by-law,  nor  any  amendment  or 
repeal  thereof,  can  be  enforced  against  any  person,  other 
than  the  corporation,  not  having  actual  notice  thereof. 
[Amendment  approved  1905;  Stats.  1905,  p.  557.] 

Legislation  §  304.  1.  Enacted  March  21,  1872,  and  then  read:  "All 
by-laws  adopted  must  be  certified  by  the  officers  of  the  corporation, 
and  filed  and  recorded  in  the  recorder's  office  of  the  county  where  the 
principal  place  of  business  of  the  corporation  is  located.  The  by-laws 
thus  adopted  must  not  be  altered  or  amended,  except  at  a  special  meet- 
ing of  the  stockholders  or  members,  to  be  called  by  the  directors  for 
that  purpose,  specifying  in  the  order  the  proposed  amendments;  and 
a  two-third  vote  of  all  the  subscribed  capital  stock,  or  of  the  mem- 
bers,   is    necessary    to    adopt    the    same.     And    the    amendments    thus 


§  304  CIVIL  CODE.  108 

adopted    must   be    certified    aud    recorded   iii   the    same   manner   as   the 
original  by-laws." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  201,  and  then  read:  "All 
by-laws  adopted  must  be  certified  by  a  majority  of  the  directors  and 
secretary  of  the  corporation,  and  copied  in  a  legible  hand  in  some  book 
kept  in  the  office  of  the  corporation,  to  be  known  as  the  'Book  of 
By-Laws,'  and  no  by-law  shall  take  effect  until  so  copied,  and  the  book 
shall  then  be  open  to  the  inspection  of  the  public  during  office  hours 
of  each  day  except  holidays.  The  by-laws  may  be  repealed  or  amended, 
or  new  by-laws  may  be  adopted,  at  the  annual  meeting,  or  at  any 
other  meeting  of  the  stockholders  or  members,  called  for  that  purpose 
by  the  directors,  by  a  vote  representing  two  thirds  of  the  subscribed 
stock,  or  by  two  thirds  of  the  members;  or  the  power  to  repeal  and 
amend  the  by-laws,  and  to  adopt  new  by-laws,  may,  by  a  similar  vote 
at  any  such  meeting,  be  delegated  to  the  board  of  directors.  The 
power  when  delegated  may  be  revoked  by  a  similar  vote,  at  any  regu- 
lar meeting  of  the  stockholders  or  members.  Whenever  any  amend- 
ment or  new  by-law  is  adopted,  it  shall  be  copied  in  the  book  of  by- 
laws with  the  original  by-laws,  and  immediately  after  them,  and  shall 
not  take  effect  until  so  copied.  If  any  by-law  be  repealed,  the  fact 
of  repeal,  with  the  date  of  the  meeting  at  which  the  repeal  was  en- 
acted, shall  be  stated  in  the  said  book,  and  until  so  stated,  the  repeal 
shall  not  take  effect." 

3.  Amended  by  Stats.  1885,  p.  130,  (1)  in  first  sentence,  changing 
"open"  to  "opened"  before  "to  the  inspection"  (evidently  a  clerical  or 
t-ypographical  error,  although  the  code  commission  in  1901  adopt  this 
form  of  the  word);  (2)  after  the  words  "two  thirds  of  the  members." 
in  sentence  beginning  "The  by-laws,"  the  section  reading,  "The  written 
assent  of  the  holders  of  two  thirds  of  the  stock,  or  two  thirds  of  the 
members  if  there  be  no  capital  stock,  shall  be  effectual  to  repeal  or 
amend  any  by-law,  or  to  adopt  additional  by-laws.  The  power  to 
repeal  and  amend  the  by-laws,  and  adopt  new  by-laws  may,  by  a  simi- 
lar vote  at  any  such  meeting  or  similar  written  assent,  be  delegated 
to  the  board  of  directors.  The  power,  when  delegated,  may  be  revoked 
by  a  similar  vote,  at  any  regular  meeting  of  the  stockholders  or  mem- 
bers. Whenever  any  amendment  or  new  by-law  is  adopted,  it  shall 
be  copied  in  the  book  of  by-laws  with  the  original  by-laws,  and  imme- 
diately after  them,  and  shall  not  take  effect  until  so  copied.  If  any 
by-law  be  repealed,  the  fact  of  repeal,  with  the  date  of  the  meeting 
at  which  the  repeal  was  enacted,  or  written  assent  was  filed,  shall  be 
stated  in  said  book,  and  until  so  stated  the  repeal  shall  not  take 
effect." 

4.  Amendment  by  Stats.  1901,  p.  345;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  5-57;  the  code  commissioner  saying. 
"The  provisions  of  the  section,  declaring  that  no  by-law  or  any  amend- 
ment thereof  shall  take  effect  until  copied  in  the  book  of  by-laws,  are 
amended  so  as  to  permit  by-laws  and  amendments  thereof,  which  have 
been  duly  passed,  to  be  treated  as  valid  and  enforceable  against  the 
corporation  and  persons  having  notice  thereof,  regardless  of  whether 
or  not  they  have  been  copied  into  the  proper  book.  It  has  often  hap- 
pened that  by-laws  have  been  published  and  generally  acted  upon  by 
the  corporation,  and  by  others,  and  thereafter  their  effect  has  been 
sought  to  be  avoided  on  account  of  the  failure  of  the  proper  officer  to 
perform  his  duty  of  copying  them  as  the  code  directs.  The  change 
consists  in  the  addition  of  the  last  sentence." 


109  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  305 

§  305.  Powers  of  directors  of  corporations.  The  corporate 
poAvers,  business,  and  property  of  all  corporations  formed  un- 
der this  title  must  be  exercised,  conducted,  and  controlled  by  a 
board  of  not  less  than  three  directors,  to  be  elected  from 
among  the  holders  of  stock ;  or  where  there  is  no  capital  stock, 
then  from  the  members  of  such  corporations;  except  that  cor- 
porations formed  or  to  be  formed  for  the  purpose  of  erecting 
and  managing  halls  and  buildings  for  the  meetings  and  accom- 
modation of  several  lodges  or  societies  of  any  benevolent  or 
charitable  order  or  organization,  and  in  connection  therewith, 
the  leasing  of  stores  and  offices  in  such  building  or  buildings 
for  other  purposes,  the  corporate  powers,  business,  and  prop- 
erty thereof  may  be  conducted,  exercised,  and  controlled  by 
a  board  [of]  not  less  than  three  [n]or  more  than  fifty  direc- 
tors, to  be  chosen  from  among  the  stockholders  of  such  corpora- 
tion or  from  among  the  members  of  such  order  or  organization, 
A  majority  of  the  directors  must  be  in  all  cases  residents  of 
this  state.  Directors  of  corporations  for  profit  must  be  hold- 
ers of  stock  therein  to  an  amount  to  be  fixed  by  the  by-laws 
of  the  corporation.  Directors  of  all  other  corporations  must 
be  members  thereof.  Unless  a  quorum  is  present  and  acting 
no  business  performed  or  act  done  is  valid  as  against  the  cor- 
poration. Whenever  a  vacancy  occurs  in  the  office  of  director, 
unless  the  by-laws  of  the  corporation  otherwise  provide,  such 
vacancy  must  be  filled  by  an  appointee  of  the  board.  [Amend- 
ment approved  1905;  Stats.  1905,  p.  503.] 
Number  of  directors:  See  ante,  §  305. 

Legislation  §  305.  1.  Enacted  March  21,  1872  (based  on  Stats.  1853, 
p.  169,  §§  5,  7,  8;  Stats.  1863-66,  pp.  743,  752;  Stats.  1850,  p.  347,  §  159, 
pp.  345,  347;  Stats.  1850,  p.  178,  §  6;  Stats.  1862,  p.  199,  §  6;  Stats.  1863, 
p.  624,  §  1),  and  then  read:  "The  corporate  powers,  business,  and  prop- 
erty of  all  corporations  formed  under  this  title  must  be  exercised,  con- 
ducted, and  controlled  by  a  board  of  not  less  than  five  nor  more  than 
eleven  directors,  to  be  elected  from  among  the  holders  of  stock;  or 
where  there  is  no  capital  stock,  then  from  the  members  of  such  corpo- 
ration. A  majority  of  the  directors  must  be  citizens  of  this  state. 
Directors  of  corporations  for  profit  must  be  holders  of  stock  therein 
in  an  amount  to  be  fixed  by  the  by-laws  of  the  corporation.  Directors 
of  all  other  corporations  must  be  members  thereof.  Unless  a  quorum 
is  present  and  actinj^,  no  business  performed  or  act  done  is  valid  as 
against  the  corporation.  Whenever  a  vacancy  occurs  in  the  office  of 
director,  unless  the  by-laws  of  the  corporation  otherwise  provide,  such 
vacancy  must  be  filled  by  an  appointee  of  the  board." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  71,  (1)  inserting  at  end  of 
first  sentence,  "except  that  corporations  formed,  or  to  be  formed,  for 
the  purpose  of  erecting  and  managing  halls  and  buildings  for  the  meet- 
ings and  accommodation  of  several  lodges  or  societies  of  any  benevo- 
lent or  charitable  order  or  organization,  and  in  connection  therewith 
the  leasing  of  stores  and  oflHces  in  such  building  or  buildings  for  other 
purposes,  the  corporate  powers,  business,  and  property  thereof  may  be 
conducted,  exercised,  and  controlled  by  a  board  of  not  less  than  five 


§  307  CIVIL   CODE.  110 

nor  more  than  fifty  directors,  to  be  chosen  from  among  the  stockholders 
of  such  corporation  or  from  among  the  members  of  such  order  or  or- 
ganization," and  (2)  in  second  sentence,  inserting  "in  all  cases"  before 
"citizens." 

3.  Amended   by   Stats.   1901,   p.   308,   and   then   read   as   at   present, 
except  for  the  changes  made  in  1905. 

4.  Amended  by  Stats.  1905,  p.  503,   (1)   in  first  sentence,  changing 

(a)  "five"   to   "three"   after   "not   less   than,"   in   both   instances,   and 

(b)  omitting  "of"  before  "not  less  than"  in  second  instance;  (2)  in 
sentence  beginning  "A   majority,"   changing  "citizens"   to  "residents." 

§  306.  Directors  must  be  elected  and  by-laws  adopted  at 
first  meeting-.     [Kepealed  1889;  Stats.  1889,  p.  365.] 

Legislation  §  306.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  202. 

3.  Repealed  by  Stats.  1889,  p.  365. 

§  307.  Elections,  how  conducted.  All  elections  must  be  by 
ballot,  and  every  stockholder  shall  have  the  right  to  vote  in 
person  or  by  proxy  the  number  of  shares  standing  in  his  name, 
as  provided  in  section  three  hundred  and  twelve  of  this  code, 
for  as  many  persons  as  there  are  directors  to  be  elected,  or  to 
cumulate  said  shares  and  give  one  candidate  as  many  votes  as 
the  number  of  directors  multiplied  by  the  number  of  his  shares 
of  stock  shall  equal,  or  to  distribute  them  on  the  same  prin- 
ciple among  as  many  candidates  as  he  shall  think  fit.  The 
provisions  of  this  section,  so  far  as  it  relates  to  cumulative  vot- 
ing, shall  apply  to  all  corporations  and  associations  doing 
business  in  this  state,  having  a  capital  stock  or  shares  of  stock, 
and  electing  directors  by  a  meeting. of  stockholders  held  in 
this  state,  whether  such  corporations  or  associations  are  or- 
ganized under  the  laws  of  this  state  or  not  and  no  election 
for  directors  of  any  corporation  or  association,  doing  business 
in  this  state,  and  electing  directors  in  this  state,  shall  be  valid, 
if  the  right  of  a  stockholder  to  cumulate  his  shares  as  herein 
provided  shall  be  denied.  In  corporations  having  no  capital 
stock,  each  member  of  the  corporation  may  cast  as  many  votes 
for  one  director  as  there  are  directors  to  be  elected,  or  may 
distribute  the  same  among  any  or  all  the  candidates.  In  any 
case  the  director  receiving  the  highest  number  of  votes  shall 
be  declared  elected.  The  provisions  of  this  section,  so  far  as 
it  relates  to  cumulative  voting,  shall  not  apply  to  literary, 
religious,  scientific,  social  or  benevolent  societies,  having  no 
capital  stock  or  shares  unless  it  shall  be  so  provided  in  their 
by-laws  or  rules.  [Amendment  approved  1903 ;  Stats.  1903, 
p.  253.] 

Legislation  §  307.     1.  Enacted  March  21,  1872,  and  then  read:   "All 

elections   must   be   by  ballot,   and   unless   otherwise   prescribed  by   the 

by-laws,  a  majority  of  the  subscribed  capital  stock  or  of  the  members 

is  necessary  to  a  choice." 


Ill  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  309 

2.  Amended  by  Code  Amdts.  1873-74,  p.  202,  to  read:  "All  elections 
of  directors  must  be  by  ballot,  and  a  vote  of  stockholders  representing 
a  majority  of  the  subscribed  capital  stock,  or  of  a  majority  of  the 
members,  is  necessary  to  a  choice.  If  there  be  capital  stock  in  the 
corporation,  each  stockholder  is  entitled  to  one  vote  for  each  share 
held  by  him  at  all  such  elections,  and  also  at  all  elections  at  other 
meetings  of  stockholders." 

3.  Amended  by  Code  Amdts.  1877-78,  p.  78,  to  read:  "All  elections 
must  be  by  ballot,  and  every  stockholder  shall  have  the  right  to  vote 
in  person  or  by  proxy  the  number  of  shares  standing  in  his  name,  aS' 
provided  in  section  three  hundred  and  twelve  of  this  code,  for  as  many 
persons  as  there  are  directors  to  be  elected,  or  to  cumulate  said  shares 
and  give  one  candidate  as  many  votes  as  the  number  of  directors  mul- 
tiplied by  the  number  of  his  shares  of  stock  shall  equal,  or  to  dis- 
tribute them  on  the  same  principle  among  as  many  candidates  as  he 
shall  think  fit.  In  corporations  having  no  capital  stock,  each  member 
of  the  corporation  may  cast  as  may  votes  for  one  director  as  there 
are  directors  to  be  elected,  or  may  distribute  the  same  among  any  or 
all  of  the  candidates.  In  either  case,  the  directors  receiving  the 
highest  number  of  votes  shall  be  declared  elected." 

4.  Amended  by  Stats.  1887,  p.  95,  adding  a  new  sentence  at  end  of 
section,  reading,  "The  provisions  of  this  section,  so  far  as  it  relates  to 
cumulative  voting,  shall  not  apply  to  literary,  religious,  scientific, 
social,  or  benevolent  societies,  unless  it  shall  be  so  provided  in  their 
by-laws  or  rules." 

5.  Amended  by  Stats.  1903,  p.  253. 

§  308.  Organization  of  board  of  directors,  etc.  Immedi- 
ately after  their  election,  the  directors  must  organize  by  the 
election  of  a  president,  who  must  be  one  of  their  number,  a 
secretary,  and  treasurer.  They  must  perform  the  duties  en- 
joined on  them  by  law  and  the  by-laws  of  the  corporation.  A 
majority  of  the  directors  is  a  sufficient  number  to  form  a  board 
for  the  transaction  of  business,  and  every  decision  of  a  ma- 
jority of  the  directors  forming  such  board,  made  when  duly 
assembled,  is  valid  as  a  corporate  act. 

Legislation  §  308.     Enacted   March    21,   1872;    based   on   Stats.   1850, 

p.  347,  §  159;  Stats.  1850,  p.  373,  §  175;  Stats.  1850.  p.  375,  §  189;  Stats. 

1853,   p.   169,  §4;   Stats.   1861,  p.   609,  §  4;   Stats.    1865-66,   p.   743,  §  4; 

Stats.  1865-66,  p.  754,  §  6. 

§  309.  Dividends  to  be  made  from  surplus  profits.  In- 
crease and  reduction  of  capital  stock.  The  directors  of  cor- 
porations must  not  make  dividends,  except  from  the  surplus 
profits  arising  from  the  business  thereof;  nor  must  they  create 
any  debts  beyond  their  subscribed  capital  stock ;  nor  must 
they  divide,  withdraw,  or  pay  to  the  stockholders,  or  any  of 
them,  any  part  of  the  capital  stock,  except  as  hereinafter  pro- 
vided, nor  reduce  or  increase  the  capital  stock,  except  as  herein 
specially  provided.  For  a  violation  of  the  provisions  of  this 
section,  the  directors  under  whose  administration  the  same 
may  have  happened  (except  those  who  may  have  caused  their 
dissent  therefrom  to  be  entered  at  large  on  the  minutes  of  the 


§309  CIVIL   CODE.  112 

directors  at  the  time,  or  were  not  present  when  the  same  did 
happen)  are,  in  their  individnal  or  private  capacity,  jointly 
and  severally  liable  to  the  corporation,  and  to  the  creditors 
thereof,  to  the  full  amount  of  the  capital  stock  so  divided, 
withdrawn,  paid  out,  or  reduced,  or  debt  contracted ;  and  no 
statute  of  limitation  is  a  bar  to  any  suit  against  such  directors 
for  any  sums  for  which  they  are  liable  by  this  section;  pro- 
vided, however,  that  where  a  corporation  has  been  heretofore 
or  may  hereafter  be  formed  for  fhe  purpose,  among  other 
things,  of  acquiring,  holding,  and  selling  real  estate,  Avater, 
and  water  rights,  the  directors  of  such  corporation  may,  with 
the  consent  of  stockholders  representing  two  thirds  of  the 
capital  stock  thereof,  given  at  a  meeting  called  for  that  pur- 
pose, divide  among  the  stockholders  the  land,  water,  or  water 
rights  so  by  such  corporation  held,  in  the  proportions  to  which 
their  holdings  of  such  stock  at  the  time  of  sifch  division  entitle 
them.  All  conveyances  made  by  the  corporation  in  pursuance 
of  this  section  must  be  made  and  received  subject  to  the  debts 
of  such  corporation  existing  at  the  date  of  the  conveyance 
thereof.  Nothing  herein  prohibits  a  division  and  distribution 
of  the  capital  stock  of  any  corporation  which  remains  after  the 
payment  of  all  its  debts,  upon  its  dissolution,  or  the  expira- 
tion of  its  term  of  existence.  [Amendment  approved  1905; 
Stats.  1905,  p.  558.] 

Increasing  and  diminishing  capital  stock:  See  post,  §  359. 
Penalties:  See  Pen.  Code,  §§  560,  563,  564,  569,  570. 
Actions  against  directors:  See  Code  Civ.  Proc,  §  359. 
Legislation  §  309.  1.  Enacted  March  21.  1872  (based  on  Stats.  1850, 
p.  348;  Stats.  1861,  p.  607,  §  50;  Stats.  1865-66,  p.  747,  §  12;  Stats.  1865- 
66,  p.  757,  §  13;  Stats.  1861,  p.  626,  §  56;  Stats.  1853,  p.  89,  §§  13, 
14),  and  then  read:  "The  directors  of  corporations  must  not  make 
dividends,  except  from  the  surplus  profits  arising  from  the  business 
thereof;  nor  must  they  divide,  withdraw,  or  pay  to  the  stockholders, 
or  any  of  them,  any  part  of  the  capital  stock;  nor  must  they  create 
debts  bej'ond  their  subscribed  capital  stock,  or  reduce  or  increase  the 
capital  stock,  except  as  hereinafter  specially  provided.  For  a  viola- 
tion of  the  provisions  of  this  section,  the  directors  under  whose  admin- 
istration the  same  may  have  happened  (except  those  who  may  have 
caused  their  dissent  therefrom  to  be  entered  at  large  on  the  minutes 
of  the  directors  at  the  time,  or  were  not  present  when  the  same  did 
hajjpen),  are,  in  their  individual  and  private  capacity,  jointly  and 
severally  liable  to  the  corporation,  and  to  the  creditors  thereof,  in 
the  event  of  its  dissolution,  to  the  full  amount  of  the  capital  stock  so 
divided,  withdrawn,  paid  out,  or  reduced,  or  debt  contracted;  and  no 
statute  of  limitations  is  a  bar  to  any  suit  against  such  directors  for 
any  sums  for  which  they  are  made  liable  by  this  section.  There  may, 
however,  be  a  division  and  distribution  of  the  capital  stock  of  any 
corporation  which  remains  after  the  payment  of  all  its  debts,  upon 
its  dissolution  or  the  expiration  of  its  term  of  existence." 

2.  Amended  by  Stats.  1891,  p.  468,  and  differed  from  the  amendment 
of   1905,    (1)    the  first  sentence  then  reading,  "The  directors  of  corpo- 


309.  Dividends  to  be  Made  ■from  Surplus  Profits;  Increase  and 
Reduction  of  Capital  Stock.  [Unless  they  shall  have  been  first 
permitted  or  authorized  so  to  do  by  the  commissioner  of  corpora- 
tions,] directors  of.  corporations  must  not  make  dividends  except 
from  the  surplus  profits  arising  from  the  business  thereof;  nor 
must  they  create  any  debts  Ijeyond  their  subscribed  capital  stock; 
nor  must  they  divide,  witlidraw,  or  pay  to  the  stockholders,  or 
anj-  of  them,  any  part  of  the  capital  stock,  except  as  hereinafter 
piovided,  nor  reduce  or  increase  the  capital  stock,  except  as 
[provided  in  section  three  hundred  fifty-nine  of  this  code.]  For 
a  violation  of  the  provisions  of  this  section,  the  directors  under 
whose  administration  the  same  may  have  happened  (except  those 
who  may  have  caused  their  dissent  therefrom  to  be  entered  at 
large  on  the  minutes  of  the  directors  at  the  time,  or  were  not 
present  when  tiie  same  did  happen)  are,  in  their  individual  or 
private  capacity,  jointly  and  severally  liable  to  the  corporation, 
and  to  the  creditors  thereof,  to  the  full  amount  of  the  capital 
stock  so  divided,  withdrawn,  paid  out,  or  reduced  or  debt  con- 
tracted. [  ]  Nothing  herein  proliibits  a  division  and  distribution 
of  the  capital  stock  of  any  corporation  which  remains  after  the 
payment  of  all  its  debts,  upon  its  dissolution,  or  the  expiration  of 
its  term  of  existence. 

[Sec.  2.  No  right,  cause  of  action,  or  liability  now  existing  or 
any  action  or  proceeding  now  pending,  shall  be  affected  by  this 
act  and  such  right,  cause  of  action  or  liability  may  be  enforced 
and  such  action  or  proceeding  may  be  prosecuted  in  the  same 
manner  and  with  the  same  effect  as  if  this  act  had  not  be^n 
passed;  excepting  only  the  liability  of  a  director  of  a  corporation 
heretofore  incurred  shall  not  exist  in  any  case  where,  all  of  the 
debts  and  liabilities  of  the  corporation  to  creditors  having  been 
paid,  the  capital  stock  divided,  withdrawn,  or  paid  out  constituted 
all  of  the  capital  stock  of  the  corporation  and  the  same  was  paid 
out,  withdrawn,  or  divided  with  the  consent  of  all  of  the  stock- 
holders to  or  among  themselves.]  (In  effect  90  days  from  and 
after   April   27,    1917.      Stats.    1917,    Chap.    521.)  Civ.    Code,    1917. 


113  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  310 

rations  must  not  make  dividends,  except  from  the  surplus  profits  aris- 
ing from  the  business  thereof;  nor  must  they  divide,  withdraw,  or  pay 
to  the  stockholders,  or  any  of  them,  any  part  of  the  capital  stock;  nor 
must  they  create  debts  beyond  their  subscribed  capital  stock;  nor  must 
they  divide,  withdraw,  or  pay  to  the  stockholders,  or  any[of]them,  any 
part  of  the  capital  stock,  except  as  hereinafter  provided,  nor  reduce 
or  increase  the  capital  stock,  except  as  herein  specially  provided"; 
(2)  the  sentence  beginning  "For  a  violation"  having  (a)  "and"  instead 
of  "or"  before  "private  capacity,"  (b)  the  words  "in  the  event  of  its 
dissolution"  before  "to  the  full  amount,"  (c)  "limitations"  instead 
of  "limitation"  after  "statute  of,"  and  (d)  "would"  before  "entitle 
them"  at  end  of  sentence;  (3)  the  final  sentence  then  having  as  the 
first  words  "Nothing  herein  shall  prohibit"  instead  of  "Nothing  herein 
prohibits." 

3.  Amendment  by  Stats.  1901,  p.  346;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  55S,  making  the  changes  noted  supra, 
in  the  amendment  of  1891;  the  code  commissioner  saying,  "The  reason 
for  the  omission  of  the  words  first  above  alluded  to  [q.  v.,  quoted 
supra,  amendment  of  1891]  is  that  by  some  clerical  error  they  occur 
twice  in  the'  section.  The  words  'in  the  event  of  its  dissolution'  are 
omitted  because  their  presence  makes  it  impossible  to  enforce  the  lia- 
bility against  the  directors  unless  the  corporation  is  first  dissolved, 
which  could  not  have  been  the  intention  of  the  legislature." 

§  310.  Removal  of  directors.  The  board  of  directors  may 
be  removed  from  office  by  a  vote  of  two  thirds  of  the  menibers 
or  of  stockholders  holding  two  thirds  of  the  capital  stock,  at 
a  general  meeting  held  after  previous  notice  of  the  time  and 
place,  and  of  the  intention  to  propose  such  removal.  Meet- 
ings of  stockholders  for  this  purpose  may  be  called  by  the 
president,  or  by  a  majority  of  the  directors,  or  by  members  or 
stockholders  holding  at  least  one  half  of  the  votes.  Such  calls 
must  be  in  writing,  and  addressed  to  the  secretary,  who  must 
thereupon  give  notice  of  the  time,  place,  and  object  of  the 
meeting,  and  by  whose  order  it  is  called.  If  the  secretary  re- 
fuses to  give  the  notice,  or  if  there  is  none,  the  call  may  be 
addressed  directly  to  the  members  or  stockholders,  and  be 
served  as  a  notice,  in  which  case  it  must  specify  the  time  and 
place  of  meeting.  The  notice  must  be  given  in  the  manner 
provided  in  section  three  hundred  and  one  of  this  title,  unless 
other  express  provision  has  been  made  therefor  in  the  by-laws. 
In  case  the  board  of  directors  is  so  removed,  a  new  board  may 
be  elected  at  the  same  meeting.  [Amendment  approved  1905 ; 
Stats.  1905,  p.  558.] 

Legislation  §  310.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  610,  §7),  and  then  read:  "No  director  shall  be  removed  from  office, 
unless  by  a  vote  of  two  thirds  of  the  members,  or  of  stockholders  hold- 
ing two  thirds  of  the  capital  stock,  at  a  general  meeting  held  after 
previous  notice  of  the  time  and  place,  and  of  the  intention  to  propose 
such  removal.  Meetings  of  stockliolders  for  this  purpose  may  be  called 
by  the  president,  or  by  a  majority  of  the  directors,  or  by  members  or 
Civ.  Code — 8 


^  312  CIVIL   CODE.  114 

stockholders  holding  at  least  one  half  of  the  votes.  Such  calls  must 
be  in  writing,  and  addressed  to  the  secretary,  who  must  thereupon  give 
notice  of  the  time,  place,  and  object  of  the  meeting,  and  by  whose 
order  it  is  called.  If  the  secretary  refuse  to  give  the  notice,  or  if 
there  is  none,  the  call  may  be  addressed  directly  to  the  members  or 
stockholders,  and  be  served  as  a  notice,  in  which  case  it  must  specify 
the  time  and  place  of  meeting.  The  notice  must  be  given  in  the  man- 
ner provided  in  section  301  of  this  title,  unless  other  express  provision 
has  been  made  therefor  in  the  by-laws.  In  case  of  removal,  the 
vacancy  may  be  filled  by  election  at  the  same  meeting." 

2.  Amenc^ment  by  Stats.  1901,  p.  347;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  558;  the  code  commissioner  saying, 
"The  amendment,  while  it  authorizes  the  removal  of  the  whole  board 
of  directors  by  a  two  thirds  vote  of  the  members  or  stockholders, 
denies  the  power  to  remove  less  than  the  whole  number  by  such  vote. 
The  reason  for  this  is  that  by  the  system  of  cumulative  voting  sanc- 
tioned by  section  307,  a  minority  may  obtain  representation  in  the 
board  of  directors;  if  so,  a  director  elected  to  represent  a  minority  of 
one  third  ought  not  to  be  removed  by  the  subsequent  vote  of  the  other 
two  thirds,  and  the  system  of  cumulative  voting  and  minority  repre- 
sentation thus  made  ineffective.     The  first  sentence  only  is  changed." 

§  311.    Justice  of  the    peace    may    order    meeting    when. 

Whenever,  from  any  cause,  there  is  no  person  authorized  to 
call  or  to  preside  at  a  meeting  of  a  corporation,  any  justice 
of  the  peace  of  the  county  where  such  corporation  is  estab- 
lished may,  on  written  application  of  three  or  more  of  the 
stockholders  or  of  the  members  thereof,  issue  a  warrant  to  one 
of  the  stockholders  or  members,  directing  him  to  call  a  meet- 
•ing  of  the  corporation,  by  giving  the  notice  required,  and  the 
justice  may,  in  the  same  warrant,  direct  such  person  to  pre- 
side at  such  meeting  until  a  clerk  is  chosen  and  qualified,  if 
there  is  no  other  officer  present  legally  authorized  to  preside 
thereat.  The  application  of  a  number  of  stockholders  less 
than  three,  but  holding  a  majority  of  the  capital  stock,  has 
the  same  effect  as  an  application  by  three  or  more  stockhold- 
ers or  members.  [Amendment  approved  1905 ;  Stats.  1905,  p. 
559.] 

Legislation  §  311.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347),  the  section  then  being  the  first  sentence  of  the  present  section. 

2.  Amendment  by  Stats.  1901,  p.  347;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  559,  adding  the  last  sentence,  the  code 
commissioner  saying,  "By  the  amendment  proposed  the  holders  of  a 
majority  of  the  stock,  though  their  number  is  less  than  three,  are 
authorized  to  apply  to  the  justice  to  issue  a  warrant  for  an  election. 
The  change  consists  in  the  addition  of  tlie  last  sentence." 

§  312.     Corporations ;  election  in,  majority  of  stock  must 
be  represented ;  election  set  aside,  when  and  by  whom.    At  all 

elections  or  votes  had  for  any  purpose  in  corporations  formed 
for  profit  there  must  be  a  majority  of  the  subscribed  capital 


115  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  312 

stock  or  of  the  members  represented,  either  in  person  or  by 
proxy  in  writing;  provided,  that  in  all  instances  of  corpora- 
tions formed  for  purposes  other  than  profit  the  by-laws  shall 
provide  the  number  of  members  or  stockholders  that  shall  con- 
stitute a  quorum  for  the  transaction  of  business.  Every  per- 
son acting  therein,  in  person  or  by  proxy  or  representative, 
must  be  a  member  thereof  or  a  stockholder,  having  stock  in 
his  own  name  on  the  stock-books  of  the  corporation  at  least 
ten  days  prior  to  the  election.  Any  vote  or  election  had  other 
than  in  accordance  with  the  provisions  of  this  article  is  void- 
able at  the  instance  of  absent  or  any  stockholders  or  members, 
and  may  be  set  aside  by  petition  to  the  superior  court  of  the 
county  where  the  same  is  held.  Any  regular  or  called  meet- 
ing of  the  stockholders  or  members  may  adjourn  from  day  to 
day,  or  from  time  to  time,  if  for  any  reason  there  is  not  pres- 
ent a  majority  of  the  subscribed  stock  or  members,  or  no  elec- 
tion had,  such  adjournment  and  the  reasons  therefor  being 
recorded  in  the  journal  of  proceedings  of  the  board  of  direc- 
tors.    [Amendment  approved  1907;  Stats.  1907,  p.  596.] 

Quorum,  provision  for:   See  ante,  §  303,  subcl.  2. 

Notice  of  meeting:  See  ante,  §  302. 

Legislation  §  312,  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  607,  §§  5,  6;  Stats.  1853,  p.  169,  §  8),  and  then  read:  "At  all  elections 
or  votes  had  for  anj^  purpose  there  must  be  a  majority  of  the  sub- 
scribed capital  stock,  or  of  the  members,  represented,  either  in  person 
or  by  proxy  in  writing.  Every  person  acting  therein,  in  person  or  by 
proxy  or  representative,  must  be  a  member  thereof  or  a  bona  fide 
stockholder,  having  stock  in  his  own  name  on  the  stock-books  of  the 
corporation  at  least  ten  days  prior  to  the  election.  Any  vote  or  elec- 
tion had  other  than  in  accordance  with  the  provisions  of  this  article 
is  voidable  at  the  instance  of  absent  stockholders  or  members,  and 
may  be  set  aside  by  petition  to  the  district  court  of  the  county  where 
the  same  was  held.  Any  regular  or  called  meeting  of  the  stockholders 
or  members  may  adjourn  from  day  to  day,  or  from  time  to  time,  if 
for  any  reason  there  is  not  present  a  majority  of  the  subscribed  stock 
or  members,  or  no  election  or  majority  vote  had — such  adjournment 
and  the  reasons  thereof  being  recorded  in  the  journal  of  proceedings 
of  the  board  of  directors." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  79,  (1)  in  sentence  begin- 
ning "Any  vote,"  (a)  adding  "(or  any)"  before  "stockholders,"  and 
(b)  changing  "was"  to  "is"  before  "held"  at  end  of  sentence;  (2)  in 
final  sentence,  omitting  "or  majority  vote"  after  "or  no  election." 

3.  Amendment  by  Stats.  1901,  p.  347;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  559  (approved  March  21,  1905),  (1) 
in  sentence  beginning  "Every  person,"  omitting  "bona  fide"  before 
"stockholder";  (2)  in  sentence  beginning  "Any  vote,"  (a)  omitting  the 
marks  of  parentheses  from  the  words  "or  any,"  added  in  1877-78,  and 
(b)  changing  "district"  to  "superior"  before  "court";  the  code  commis- 
sioner saying,  "For  the  purposes  of  election,  a  person  appearing  upon 
the  books  of  the  corporation  to  be  a  stockholder,  should  be  permitted 
to  vote,  and  election  officers  should  not  be  vested  with  authority  to 


§  314  CIVIL  CODE.      ■  116 

deny  such  a  stockholder  the  right  to  vote  or  to  claim  that  -for  some 
reason  he  is  not  a  bona  fide  stockholder.  (See  Smith  v.  S.  F.  &  N.  P. 
Ry.  Co.,  115  Cal.  584)";  this  amendment  being  repealed  in  1907  (Stats. 
1907,  p.  59G),  there  having  been  two  amendments  of  §  312  in  1905  (for 
second  of  which,  see  infra). 

5.  Amended  by  Stats.  1905,  p.  787  (approved  March  22,  1905),  and 
differed  from  the  amendment  of  1907,  in  that  it  had  (1)  in  sentence 
beginning  "Every  person,"  marks  of  parentheses  inclosing  the  words 
"in  person  or  by  proxy  or  representative,"  and  (b)  the  words  "bona 
fide"  before  "stockholder";  (2)  in  sentence  beginning  "Any  vote,"  (a) 
marks  of  parentheses  inclosing  the  words  "or  any"  (added  in  1877-78), 
and  (b)  "was"  instead  of  "is"  before  "held"  at  end  of  sentence. 

6.  Amended  by  Stats.  1907,  p.  596;  the  code  commissioner  saying, 
"The  change  in  the  amendment  of  this  section,  as  api)roved  March  21, 

,  1905,  consisted  in  the  substitution  of  the  words  'superior  court'  in  place 
of  'district  court,'  and  in  the  omission  of  the  words  'bona  fide'  before 
'stockholder.'  For  the  purpose  of  election,  a  person  appearing  upon 
the  books  of  the  corporation  to  be  a  stockholder  should  be  permitted 
to  vote,  and  election  officers  should  not  be  vested  with  authority  to 
deny  such  a  stockholder  the  right  to  vote,  or  to  claim  that  for  some 
reason  he  is  not  a  bona  fide  stockholder.  (See  Smith  v.  S.  F.  &  N.  P. 
Ry.  Co.,  115  Cal.  581.)  On  March  22,  1905,  another  act  (not  suggested 
by  the  commissioner)  was  apjiroved,  superseding  the  act  approved  upon 
the  day  before.  This  act  omitted  some  of  the  changes  of  the  act  of 
March  21,  but  made  other  changes.  In  the  session  of  1907,  the  section 
as  approved  March  21,  1905,  was  repealed,  but  the  changes  contained 
in  it  were  incorporated  into  the  amendment  of  the  section,  as  approved 
March  22,  1905." 

§  313.     Stock  of  minors,  insane,  etc.,  how  represented.     The 

shares  of  stock  of  an  estate  of  a  minor,  or  insane  person,  may 
be  represented  by  his  guardian,  and  of  a  deceased  person  by 
his  executor  or  administrator,  and,  except    when    otherwise 
agreed,  all  shares  of  stock  standing  on  the  books  of  a  corpora- 
tion in  the  name  of  any  person  as  pledgee  or  trustee,  may  be 
represented  or  voted  by  such  pledgee  or  trustee  only  when 
such  pledgor  or  beneficial  owner  fails  to  represent  and  vote 
the  same.      [Amendment  approved  1911;  Stats.  1911,  p.  318.] 
Legislation  §  313.     1.  Enacted  March  21,  1872  (based  on  Stats.  1S61, 
p.  610,  §  S;  Stats.  1861,  p.  567,  §§  12,  13;  Stats.  1853,  p.  169,  §  8;  Stats. 
1863,  p.   89,  §§  11,   12;   Stats.   1862,  p.  199,  §  23),  and  then  read:   "The 
shares  of  stock  of  an  estate  of  a  minor,  insane  or  deceased  person,  may 
be  represented  at  all  elections  and  meetings  of  the  corporation  by  the 
legal  representative  of  the  person  holding  the  same." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  203,  to  read:  "The  shares 
of  stock  of  an  estate  of  a  minor,  or  insane  person,  may  be  represented 
by  his  guardian,  and  of  a  deceased  person  by  his  executor  or  adminis- 
trator." 

3.  Amended  by  Stats.  1911,  p.  318. 

§  314.  Election  may  be  postponed.  If  from  any  cause  an 
election  does  not  take  place  on  the  day  appointed  by  law  or 
the  by-laws,  or  otherwise,  it  may  be  held  on  any  day  there- 
after as  is  provided  for  in  such  by-laws,  or  to  which  such  elec- 
tion may  be  adjourned  or  ordered  by  the  directors.     If  an 


117  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  315 

election  has  not  been  held  at  the  appointed  time,  and  no  ad- 
jonrned  or  other  meeting'  for  the  purpose  has  been  ordered  by 
the  directors,  a  meeting  may  l)e  called  by  the  stockholders 
as  provided  in  section  three  hundred  and  ten.  [Amendment 
approved  1905;  Stats.  1905,  p.  559.] 

Legislation  §  314.     1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 

p.  347,  §  168;  Stats.  1853,  p.  88,  §  6;  Stats.  1862,  p.  199,  §  7;  Stats.  1861, 

p.  610,  §  8;  Stats.  1863,  p.  624,  §  10. 

2.  Amendment  by  Stats.  1901,  p.  34S;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  559,  (1)  in  first  sentence,  substituting 
"by-law  or  the  by-laws,  or  otherwise,"  for  "in  the  by-laws";  (2)  omit- 
ting "of  this  article"  at  end  of  section;  the  code  commissioner  saying, 
"The  design  of  the  amendment  is  to  extend  the  provisions  of  the  sec- 
tion to  all  elections  howsoever  authorized." 

§  315.  New  election  may  be  ordered  by  the  court.  Upon 
the  application  of  any  person  or  body  corporate  aggrieved  by 
any  election  held  by  any  corporate  body,  the  superior  court 
of  the  county  in  which  such-  election  is  held  must  proceed 
forthwith  to  hear  the  allegations  and  proofs  of  the  parties,  or 
otherwise  inquire  into  the  matters  of  complaint,  and  thereupon 
confirm  the  election,  order  a  new  one,  or  direct  such  other 
relief  in  the  premises  as  accords  Avith  right  and  justice.  Upon 
filing  the  petition,  and  before  any  further  proceedings  are  had 
under  this  section,  five  days'  notice  of  the  hearing  must  be 
given,  under  the  direction  of  the  court  or  the  judge  thereof, 
to  the  adverse  party,  or  those  to  be  affected  therebv.  [Amend- 
ment approved  1905;  Stats.  1905,  p.  560.] 

Legislation  §  315.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §15),  and  then  read:  "Upon  the  application  of  any  person  or 
body  corporate  aggrieved  by  any  election  held  by  any  corporate  body, 
or  any  proceedings  thereof,  the  district  nudge  of  the  district  in  which 
such  election  is  held  must  proceed  forthwith  summarily  to  hear  the 
allegations  and  proofs  of  the  parties,  or  otherwise  incjuire  into  the 
matters  of  complaint,  and  thereupon  confirm  the  election,  order  a  new 
one,  or  direct  such  other  relief  in  the  premises  as  accords  with  right 
and  justice.  Before  any  proceedings  are  had  under  this  section,  five 
days'  notice  thereof  must  be  given  to  the  adverse  party,  or  to  those  to 
be  affected  thereby." 

2.  Amended  by 'Code  Amdts.  1877-78,  p.  79.  to  read:  "Upon  the  ap- 
plication of  any  person,  or  body  corporate,  aggrieved  by  any  election 
held  by  any  corporate  body,  the  district  court  of  the  district  in  which 
such  election  is  held  must  proceed  forthwith  to  hear  the  allegations 
and  proofs  of  the  parties,  or  otherwise  inquire  into  the  matters  of  com- 
plaint, and  thereupon  confirm  the  election,  order  a  new  one,  or  direct 
such  other  relief  in  the  premises  as  accords  with  right  and  justice. 
Upon  filing  the  petition,  and  before  any  further  proceedings  are  had 
under  this  section,  fi^'e  days'  notice  of  the  hearing  must  be  given,  under 
the  direction  of  the  court,  or  the  judge  thereof,  to  the  adverse  party, 
or  those  to  be  affected  thereby." 

3.  Amendment  by  Stats.  1901,  p.  HIS;  nncon«titutiniial.  See  nole. 
§  4,  ante. 

4.  Amended  by  Stats.  1905.  p.  560. 


§  318  CIVIL   CODE.  118 

§  316.  False  certificate,  report,  or  notice  to  make  officers 
liable.  Any  officer  of  a  corporation  who  willfully  gives  a 
certificate,  or  willfully  makes  an  official  report,  public  notice, 
or  entry  in  any  of  the  records  or  books  of  the  corporation, 
concerning  the  corporation  or  its  business,  which  is  false  in  any 
material  representation,  shall  be  liable  for  all  the  damages 
resulting  therefrom  to  any  person  injured  thereby,  and  if  two 
or  more  officers  unite  or  participate  in  the  commission  of  any 
of  the  acts  herein  designated,  they  shall  be  jointly  and  sev- 
erally liable.  [Amendment  approA^ed  1874;  Code  Amdts. 
1873-74,  p.  203.]. 

Liability  of  officer:  Pen.  Code,  §§  558,  564. 

Protection  of  stockholders.  "An  Act  to  protect  stockholders  and 
persons  dealing  with  corporations  in  this  state":  See  post,  Appendix, 
tit.  "Corporations."     See  also  Pen.  Code,  §  564. 

Legislation  §  316.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  626,  §55;  Stats.  1865-66,  p.  747,  §16;  Stats.  1853,  p.  90,  §19),  and 
then  read:  "Any  officer  of  a  corporation  who  makes  or  gives  a  certifi- 
cate, official  report,  public  notice,  or  entry  in  any  of  the  records  or 
books  of  the  corporation,  concerning  the  corporation  or  its  business, 
which  is  false  in  any  material  representation,  and  who  knew  or  had 
full  opportunity  to  know  the  same  to  be  false,  is  liable  for  all  the 
debts  of  the  corporation  contracted  while  he  was  a  stockholder  or 
officer  thereof;  and  if  more  than  one  violate  the  provisions  of  this  sec- 
tion in  concert,  they  are  jointlv  and  severally  liable." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  203. 

§  317.  Stockholders'  v^^aiver  of  notice  of  meetings.  "When 
all  the  stockholders  or  members  of  a  corporation  are  present 
at  any  meeting  however  called  or  notified,  and  sign  a  written 
consent  thereto  on  the  records  of  such  meetings,  or  if  those 
not  present  sign  in  writing  a  waiver  of  notice  of  such  meeting, 
which  waiver  is  presented  and  made  a  part  of  the  records  of 
such  meeting,  the  doings  of  such  meeting  are  as  valid  as  if 
had  at  a  meeting  legally  called  and  noticed.  [Amendment  ap- 
proved 1909;  Stats.  1909,  p.  49.] 

Legislation  §  317.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §10),  and  then  read:  "When  all  the  stockholders  or  members 
of  a  corporation  are  present  at  any  meeting,  however  called  or  noti- 
fied, and  sign  a  written  consent  thereto  on  the  record  of  such  meeting, 
the  doings  of  such  meeting  are  as  valid  as  if  had  at  a  meeting  legally 
called  and  noticed." 

2.  Amended  by  Stats.  1909,  p.  49. 

§  318.  Proceedings  at  meeting  to  be  binding.  The  stock- 
holders or  members  of  such  corporation,  wlien  so  assembled, 
may  elect  officers  to  fill  all  vacancies  then  existing,  and  may 
act  upon  such  other  business  as  might  lawfully  be  transacted 
at  regular  meetings  of  the  corporation. 

Legislation  §  318.     Enacted   March   21,   1872;    based   on   Stats.   1S50. 

p.  347,  §  11. 


119  BY-LAWS,  DIRECTORS,  ELECTIONS  AND  MEETINGS.  §  321 

§  319.  Meeting's,  where  held.  The  meetings  of  the  stock- 
holders and  board  of  directors  of  a  corporation  must  be  held 
at  its  office  or  principal  place  of  business. 

Changing  place  of  business:   See  post,  §  322. 

Legislation  §  319.     Enacted  March  21,  1872. 

§  320.  Special  meetings,  how  called.  When  no  provision 
is  made  in  the  by-laws  for  regular  meetings  of  the  directors 
and  the  mode  of  calling  special  meetings,  all  meetings  must 
be  called  by  special  notice  in  writing,  to  be  given  to  each 
director  by  the  secretary,  on  the  order  of  the  president,  or  if 
there  be  none,  on  the  order  of  two  directors. 
Legislation  §  320.     Enacted  March  21,  1872. 

§  320a.  Waiver  of  notice  of  corporation  meeting.  When 
all  the  directors  of  a  corporation  are  present  at  any  directors' 
meeting,  however  called  or  noticed,  and  sign  a  written  consent 
thereto,  on  the  record  of  such  meeting,  or  if  the  majority  of 
the  directors  are  present,  and  if  those  not  present  sign  in 
writing  a  waiver  of  notice  of  such  meeting,  which  waiver  is 
presented  and  made  a  part  of  the  records  of  such  meeting, 
the  transactions  of  such  meeting  are  as  valid  as  if  had  at  a 
meeting  regularly  called  and  noticed. 

Legislation  §  320a.     Added  by  Stats.  1915,  p.  939. 

§321.  Certain  books  to  be  open  for  inspection.  Every  cor- 
poration doing  a  banking  business  in  this  state  must  keep  in 
its  office,  in  a  place  accessible  to  the  stockholders,  depositors, 
and  creditors  thereof,  and  for  their  use,  a  book  containing 
a  list  of  all  stockholders  in  such  corporation,  and  the  number 
of  shares  of  stock  held  by  each,  and  every  such  corporation 
must  keep  posted  in  its  office,  in  a  conspicuous  place,  accessible 
to  the  public  generally,  a  notice,  signed  by  the  president  or 
secretary,  showing: 

First.     The  names  of  the  directors  of  such  corporation. 

Second.  The  number  and  value  of  shares  of  stock  held  by 
each    director. 

The  entries  on  such  book  and  such  notice  shall  be  made  and 
posted  within  twenty-four  hours  after  any  transfer  of  stocky 
and  shall  be  conclusive  evidence  against  each  director  and 
stockholder  of  the  numl  er  of  shares  of  stock  held  by  each. 
The  provisions  of  this  section  shall  apply  to  all  banking  cor- 
porations formed  or  existing  before  twelve  o'clock  noon  of 
the  day  on  which  this  code  took  effect,  as  well  as  to  those 
formed  after  such  time. 

Legislation  §  321.     Added  by  Code  Amdts.  1875-76,  p.  72;   approved 

.January  29,  1876.     There  was  another  §  321  enacted  at  the  same  session 

of  the  legislature,  1875-76;  q.  v.,  infra,  the  present  §  321a. 


§  321b  CIVIL  CODE.  120 

§  321a.  Corporation  may  change  its  principal  place  of  busi- 
ness. Every  corporation  that  has  been  or  may  be  created 
under  the  general  laws  of  this  state  may  change  its  principal 
place  of  business  from  one  place  to  another  in  the  same  county, 
or  from  one  city  or  county  to  anotlier  city  or  county  within 
this  state.  Before  such  change  is  made,  the  consent  in  writing, 
of  the  holders  of  two  thirds  of  the  capital  stock  of  the  cor- 
poration must  be  obtained  and  filed  in  its  office.  When  such 
consent  is  obtained  and  filed,  notice  of  the  intended  removal 
or  change  must  be  published,  at  least  once  a  week,  for  three 
successive  weeks,  in  some  newspaper  published  in  the  county, 
wherein  said  principal  place  of  business  is  situated,  if  there 
is  one  published  therein;  if  not,  in  a  newspaper  of  an  adjoining 
county,  giving  the  name  of  the  county  or  city  where  it  is 
situated  and  that  to  which  it  is  intended  to  remove  it.  When- 
ever any  such  change  is  made,  a  copy  of  the  resolution  or  ac- 
tion of  'the  board  of  directors  authorizing  the  same  together 
with  a  copy  of  an  affidavit  of  the  pulilication  above  required, 
all  duly  certified  by  the  president  and  secretary  of  the  corpo- 
ration with  the  corporate  seal  affixed  shall  be  filed  in  each 
office  where  the  original  articles  of  incorporation  are,  or  any 
copy  thereof  is  required  to  be  filed.  This  section  shall  not  be 
construed  to  require  such  consent,  notice  or  publication  in 
the  case  of  any  such  removal  from  one  location  to  another  in 
tlie  same  city,  town  or  village.  [Amendment  approved  1903 ; 
Stats.  1903,  p.  254.] 

This  section  was  formerly  §  321.  There  being  two  sections  of  this 
number,  it  was  ciianged  to  §  321a. 

LcFislation  §  321a.  1.  Added  by  Code  Amdts.  1875-76,  p.  73  (ap- 
proved April  3,  1876),  as  §  321.  There  was  another  §  321  enacted  at 
the  same  session  of  the  legislature,  187.0-76;  q.  v.,  supra.  When  added 
in  1875-76,  the  second  sentence  read,  "Before  such  change  is  made,  the 
consent  in  writing  of  the  holders  of  two  thirds  of  the  capital  stock 
must  be  obtained  and  filed  in  the  office  of  the  corporation";  the  section 
then  containing  only  the  first  three  sentences,  ending  with  the  words 
"intended  to  remove  it" 

2.  Amendment  by  Stats.  1901,  p.  348,  as  §  321a;  unconstitutional. 
See  note,  §  4,  ante. 

3.  Amended  by  Stats.  19G3,  p.  2-54,  adding  the  last  two  sentences. 

§  321b.  Voting  at  stockholders'  meetings.  Proxy.  Revoca- 
tion, At  all  meetings  of  stockholders  of  corporations  organ- 
ized under  the  laws  of  this  state,  or  in  the  case  of  corporations 
having  no  capital  stock,  then  at  all  meetings  of  the  members 
of  such  corporation,  only  the  stockholders  or  members  ac- 
tually present  shall  be  entitled  to  vote  on  any  proposition, 
including  the  election  of  directors  and  other  officers  of  the 
corporation,  unless  proxies  from  absent  or  nonattending  stock- 
holders or  members  shall  be  held  by  some  person  or  persons 


321a.  Corporation  May  Change  Its  Principal  Place  of  Busi- 
ness. Every  corporation  that  has  been  or  may  be  created  under 
the  general  laws  of  this  state  may  change  its  principal  place 
of  business  from  one  place  to  another  in  the  same  county,  or 
from  one  city  or  county  to  another  city  or  county  within  this 
state.  Before  such  change  is  made,  the  consent  in  writing,  of 
the  holders  of  two-thirds  of  the  capital  stock  of  the  corporation 
must  be  obtained  and  filed  in  its  office;  [or  if  the  corporation 
has  no  capital  stock,  then  the  consent  in  writing  of  two-thirds 
of  the  members  thereof,  must  be  obtained  and  filed  in  its  office.] 
When  sucli  consent  is  obtained  and  filed,  notice  of  the  intended 
removal  or  change  must  be  published,  at  least  once  a  week,  for 
three  successive  weeks,  in  srome  newspaper  published  in  the 
county,  wherein  said  principal  place  of  business  is  situated,  if 
there  is  one  published  therein;  if  not,  in  a  newspaper  of  an  ad- 
joining county,  giving  the  name  of  the  county  or  city  where  it  is 
situated  and  that  to  which  it  is  intended  to  remove  it.  Whenever 
any  such  change  is  made,  a  copy  of  the  resolution  or  action  of 
the  board  of  directors  authorizing  the  game,  together  with  a  copy 
of  an  affidavit  of  the  publication  above  required,  all  duly  certi- 
fied by  the  president  and  secretary  of  the  corporation  with  the 
corporate  seal  affixed,  shall  be  filed  in  each  office  where  the  orig- 
inal articles  of  incorporation  are,  or  any  copy  thereof  is  requii-ed 
to  be  filed.  This  section  shall  not  be  construed  to  require  such 
consent,  notice  or  publication  in  the  case  of  any  such  removal 
from  one  location  to  another  in  the  same  city,  town  or  village.  (In 
effect  !)0  days  from  and  after  April  27,  1917.  Stats.  1917,  Chap. 
167.)  Civ.  Code,  1917. 


321c.  fNew.]  Pooling  or  Voting  Trust  Agreements  Between 
Stockholders  of  Cor'porations  Organized  for  the  Purpose  of  Market- 
ing Agricultural  Products.  Nothing  contained  in  this  article  shall 
prevent  t!,e  execution  of  valid  pooling  or  voting  trust  agreements 
by  the  stockholders  of  a  corporation  organized  for  the  purpose  of 
marketing  agricultural  products,  and  the  principal  business  of 
which  is  the  preparation  for  and  the  maiketing  of  such  products, 
the  majority  of  the  stock  of  which  is  owned  by  producers  of  such 
products;  and  it  shall  be  lawful  for  any  number  of  the  owners  of 
the  capital  stock  of  such  corporation,  in  order  to  prevent  the  cap- 
ital stock  thereof  from  being  controlled  by  interests  hostile  to  such 
producers  and  to  secure  safe  and  prudent  management  of  the  cor- 
poration in  the  interestsi  of  the  whole  number  of  its  stockholders, 
to  enter  into  agreements  with  each  other  by  which,  for  a  definite 
period  of  time  stated  therein,  the  capital  stock  of  such  corpora- 
tion owned  by  them  shall  be  voted  as  the  owners  of  a  majority 
of  the  stock  represented  by  such  agreement  shall  direct  from  time 
to  time,  or  to  enter  into  agreements  by  which  the  stock  to  which 
they  shall  be  entitled  shall  be  issued  to  trustees  sielected  from 
among  the 'signers  to  be  held  and  voted  by  such  trustees  for  the 
period  specified  in  and  in  accordance  with  the  terms  of  said  agree- 
ment, and  the  mutual  promises  of  the  several  signers  of  any  such 
agreement  sihall  be  sufficient  consideration  for  the  making  thereof. 
(In  effect  DO  days  fiom  and  after  April  22,  1919.  Stats.  1919,  Chap. 
79)  Civil   Code,   1919. 


I2i  STOCK  AND  STOCKHOLDERS.  §  322 

present  at  such  meeting  and  shall  be  executed  in  accordance 
with  the  provisions  of  this  section.  Every  such  proxy  must 
be  executed  in  writing  by  the  member  or  stockholder  himself, 
or  by  his  duly  authorized  attorney.  No  proxy  heretofore 
given  or  made  shall  be  valid  after  the  expiration  of  eleven 
months  from  the  passage  of  this  act,  unless  the  member  or 
stockholder  executing  it  shall  have  specified  therein  the  length 
of  time  for  which  such  proxy  is  to  continue  in  force,  which 
must  be  for  some  limited  period,  and  in  no  case  to  exceed 
seven  years  from  the  date  of  the  execution  of  such  proxy. 
No  proxy  hereafter  to  be  given  or  made  shall  be  valid  after 
the  expiration  of  eleven  months  from  the  date  of  its  execution, 
unless  the  member  or  stockholder  executing  it  shall  have 
specified  therein  the  length  of  time  for  which  such  proxy  is 
to  continue  in  force,  which  must  be  for  some  limited  period, 
and  in  no  case  to  exceed  seven  years  from  the  date  of  the 
execution  of  such  proxy.  Every  proxy  shall  be  revocable  at 
the  pleasure  of  the  person  executing  it ;  but  a  corporation  hav- 
ing no  capital  stock  may  prescribe  in  its  by-laws  the  persons 
who  may  act  as  proxies  for  members,  and  the  length  of  time 
for  which  such  proxies  may  be  executed.  Executors,  adminis- 
trators, guardians  and  trustees  may  give  proxies.  [Amend- 
ment approved  1913;  Stats.  1913,  p.  230.] 

Legislation  §  321b.     1,  Added  by  Stats.  1905,  p.  22. 

2.  Amended  by  Stats.  1913,  p.  230.  The  only  change  made  by  the 
amendment  of  1913  consisted  in  the  addition  of  the  last  sentence. 


CHAPTER  II. 

Corporate  Stock. 

Article  I.     Stock  and   Stockholders.     §§  322-329. 
II.     Assessment  of  Stock.     §§331-349. 

AETICLE  I. 
Stock  and  Stockholders. 

§  322.     Liability  of  stockholders. 

§  323.     Certificates  of  stock,  how  and  when  issued. 

§  324.     Transfer  of  shares  of  stock.     Certain  stock  appurtenant  to  land. 

§  32.5.  Transfer  of  shares  held  by  married  women,  etc.  Dividends  pay- 
able to  married  women. 

§  326.     Affidavit  or  bond  may  be  required  before  transfer. 

§  327.     Contract  to  relieve  directors,  void. 

§  328.     Shares  of  stock,  etc.;  duplicates,  how  issued. 

§  329.  Burned  bonds,  procedure  to  obtain  duplicates.  Form  of  summons. 
.Judgment.     Indemnity. 

§322.  Liability  of  stockholders.  Each  stockholder  of  a 
corporation  is  individually  and  personally  liable  for  such  pro- 
portion of  all  its  debts  and  liabilities  contracted  or  incurred 


§  322  CIVIL  CODE.  122 

during  the  time  he  was  a  stockholder  as  the  amount  of  stock 
or  shares  owned  by  him  bears  to  the  whole  of  the  subscribed 
capital  stock  or  shares  of  the  corporation.  Any  creditor  of 
the  corporation  may  institvite  joint  or  several  actions  against 
any  of  its  stockholders,  for  the  proportion  of  his  claim  pay- 
able by  each,  and  in  such  action  the  court  must  ascertain  the 
proportion  of  the  claim  or  debt  for  which  each  defendant  is 
liable,  and  a  several  judgment  must  be  rendered  against  each, 
in  conformity  therewith.  If  any  stockholder  pays  his  propor- 
tion of  any  debt  due  from  the  corporation,  incurred  while  he 
Avas  such  stockholder,  he  is  relieved  from  any  further  personal 
liability  for  such  debt,  and  if  an  action  has  been  brought 
against  him  upon  such  debt,  it  must  be  dismissed,  as  to  him, 
upon  his  paying  the  costs,  or  such  proportion  thereof  as  may 
be  properly  chargeable  against  him.  The  liability  of  each 
stockholder  is  determined  by  the  amount  of  stock  or  shares 
owned  by  him  at  the  time  the  debt  or  liability  was  incurred; 
and  such  liability  is  not  released  by  any  subsequent  transfer 
of  stock.  The  term  stockholder,  as  used  in  this  section,  ap- 
plies not  only  to  such  persons  as  appear  by  the  books  of  the 
corporation  to  be  such,  but  also  to  every  eqiiitable  owner  of 
stock,  although  the  same  appears  on  the  books  in  the  name  of 
another;  and  also  to  every  person  Avho  has  advanced  the  in- 
stallments or  purchase-money  of  stock  in  the  name  of  a  minor, 
so  long  as  the  latter  remains  a  minor ;  and  also  to  every  guard- 
ian, or  other  trustee,  who  voluntarily  invests  a.ny  trust  funds 
in  the  stock.  Trust  funds  in  the  hands  of  a  guardian,  or  trus- 
tee, are  not  liable  under  the  provisions  of  this  section,  by 
reason  of  any  such  investment ;  nor  must  the  person  for  whose 
benefit  the  investment  is  made  be  responsible  in  respect  to  the 
stock  until  he  becomes  competent  and  able  to  control  the 
same ;  but  the  responsibility  of  the  guardian  or  trustee  making 
the  investment  continues  until  that  period.  Stock  held  as  col- 
lateral security,  or  by  a  trustee,  or  in  any  other  representative 
capacity,  does  not  make  the  holder  thereof  a  stockholder 
within  the  meaning  of  this  section,  except  in  the  cases  above 
mentioned,  so  as  to  charge  him  with  any  proportion  of  the 
debts  or  liabilities  of  the  corporation ;  but  the  pledgor,  or  per- 
son or  estate  represented,  is  to  be  deemed  the  stockholder,  as 
respects  such  liability.  In  a  corporation  having  no  capital 
stock,  each  member  is  individually  and  personally  liable  for 
an  equal  share  of  its  debts  and  liabilities,  and  similar  actions 
may  be  brought  against  him,  either  alone  or  jointly  with  other 
members,  to  enforce  such  liability  as  by  this  section  may  be 
brought  against  one  or  more  stockholders,  and  similar  judg- 
ments may  be  rendered.     The  liability  of  each  stockholder  of 


ered    in    such    action,    shall    be   considered    as    having    been    paid    on 
his    shares. 

r4.  The  liability  of  each  stockholder  of  a  corporation  formed 
under  the  laws  of  any  other  state  or  territory  of  the  United 
States,  or  of  any  foreign  country,  and  doing  business  within 
this  state,  is  the  same  as  the  liability  of  a  stockholder  of  a 
corporation  created  under  the  constitution  and  laws  of  this 
state.] 

Any  creditor  of  [a]  corpoiation  may  [commence]  joint  or  sev- 
eral actions  against  any  of  its  stoclvliolders  [or  members]  for 
the  [amount  op]  proportion  of  his  claim  payable  by  each;  and 
in  such  action  the  court  must  ascertain  the  [amount  of  the] 
proportion  of  the  claim  or  debt  for  which  each  defendant  is 
liable,  and  a  several  judgment  must  be  rendered  against  each, 
in  conformity  therewith.  [  ]  The  [terms  "stockholder"  and 
"member,"]  as  used  in  this  section,  applies  not  only  to  such 
persons  as  appear  by  the  books  of  the  corporation  to  be  such, 
but  also  to  every  equitable  owner  of  stock  [or  of  a  membership,] 
although  the  same  appears  on  the  books  in  the  name  of  an- 
other; and  also  to  every  person  who  has  advanced  the  install- 
ments or  purchase  money  of  stock  [or  a  membership]  in  the 
name  of  a  minor,  so  long  as  the  latter  remains  a  minor;  and 
also  to  every  guardian,  or  other  trustee,  who  voluntarily  invests 
any  trust  funds  in  the  stock  [or  membership.]  Trust  funds  in 
the  hands  of  a  guardian,  or  trustee,  are  not  liable  under  the 
provisions  of  this  section  by  reason  of  any  such  investment; 
nor  must  the  person  for  whose  benefit  the  investment  is  made 
be  responsible  in  respect  to  the  stock  until  he  becomes  compe- 
tent and  able  to  control  the  same;  but  the  responsibility  of  the 
guardian  or  trustee  making  the  investment  continues  until  that 
period.  Stock  held  as  collateral  security,  or  by  a  trustee,  or  in 
any  other  representative  capacity,  does  not  make  the  holder 
thereof  a  stockholder  within  the  meaning  of  this  section,  except 
in  the  cases  above  mentioned,  so  as  to  charge  him  with  any 
proportion  of  the  debts  or  liabilities  of  the  corporation;  but  the 
pledgor,  or  person  or  estate  represented,  is  to  be  deemed  the 
stockholder,    as    respects    such    liability.     [     ] 

[Sec.  2.  This  act  shall  take  effect  and  be  in  force  upon  the 
approval  and  ratification  by  the  people  of  an  amendment  to  sec- 
tion three  of  article  twelve  of  the  constitution  of  this  state 
submitted  by  the  forty-second  session  of  the  legislature  to  the 
people;  and  if  such  amendment  so  submitted  shall  not  be  so 
approved  and  ratified,  this  act  shall  thereafter  be  void.]  (In  ef- 
fect 90  days  from  and  after  April  27,  1917.  Stats.  1917,  Chap. 
568.)  Civ.    Code,    1917. 


322.  Liability  of  Stockholders.  [Stocki-.clders  of  corporations 
siiall  be  liable  for  the  payment  of  corporate  debts  and  liabilities 
as    follows:] 

[1.]  Each  stockholder  of  a  corporation,  [other  than  a  corpora- 
tion hereafter  organized  under  the  laws  of  this  state  which 
shall  adopt  and  use  as  the  last  word  of  its  corporate  name  the 
word  "Limited,"  or  its  abbreviation,  "Ltd.,"]  is  individually  and 
personally  liable  for  such  proportion  of  all  its  debts  and  liabili- 
ties contracted  or  incurred  during  the  time  he  was  a  stockholder 
as  the  amount  of  stock  or  shares  owned  by  him  [at  the  time 
the  debt  or  liability  was  incurred]  bears  to  the  whole  of  the 
subscribed  capital  stock  or  shares  of  the  corporation;  [and  such 
liability  is  not  released  by  any  subsequent  transfer  of  stock. 
If  any  stockholder  pays  his  proportion  of  any  debt  due  from  the 
corporation,  incurred  while  he  was  such  stockholder,  he  is  re- 
lieved from  any  further  personal  liability  for  such  debt;  and  if 
an  action  has  been  bi'ought  against  him  upon  such  debt,  it 
must  be  dismissed  as  to  him  upon  his  paying  the  costs  or  such 
proportion    thereof    as    may    be    properly    chargeable    against    him. 

[2.  In  a  corporation  having  no  capital  stock,  each  member  is 
individually  and  personally  liable  for  an  equal  share  of  its  debts 
and    liabilities. 

[3.  In  a  corporation  hereafter  organized  under  the  laws  of 
this  state,  having  a  capital  stock,  and  which  shall  adopt  and 
use  as  the  last  word  of  its  corporate  name,  the  word  "Limited," 
or  its  abbreviation,  "Ltd.,"  if  its  subscribed  and  issued  shares 
have  not  been  fully  paid,  in  money  paid,  labor  done,  or  prop- 
erty actually  received  by  the  corporation,  and  the  capital  paid 
in  shall  be  insufficient  to  satisfy  its  debts  and  obligations,  each 
stockholder  shall  be  liable  to  the  creditors  of  the  corporation 
for  an  amount  equal  to  that  not  paid  up  on  the  shares  held  by 
him,  or  such  proportion  of  that  si  m  as  shall  be  required  to 
satisfy  such  debts  and  obligations:  provided,  that  no  judgment 
upon  such  liability  shall  be  satisfied  out  of  the  property  of  such 
stockholder  until  judgment  upon  the  debt  or  obligation  upon 
which  such  liability  is  founded  shall  have  been  first  entered 
against  the  corporation,  and  an  execution  thereon  shall  have 
been  returned  unsatisfied  in  whole  or  in  part;  and  the  enforce- 
ment of  any  judgment  against  the  stockholder,  and  of  any  exe- 
cution levied  thereunder,  shall  be  stayed  until  such  return  shall 
have  been  made.  Any  stockholder  in  such  corporation  who  shall 
pay  any  debt  or  obligation  for  which  he  is  made  liable  by 
the  provisions  of  this  subdivision  of  this  section,  may  recover 
the  amount  so  paid  in  an  action  against  the  corporation,  in 
which  action  only  the  property  of  the  corporation  shall  be  taken 
in  satisfaction  of  any  judgment  obtained  therein,  and  not  the 
property  of  any  stockholder.  Any  amount  so  paid  by  such 
stockholder,    and    not    repaid    to    him    by   the    corporation    or    recov- 


123  Stock  and  stockholders.  §  322 

a  corporation  formed  under  the  laws  of  any  other  state  or  ter- 
ritory of  the  United  States,  or  of  any  foreign  country,  and 
doing  business  within  this  state,  is  the  same  as  the  liability  of 
a  stockholder  of  a  corporation  created  under  the  constitution 
and  laws  of  this  state.  [Amendment  approved  1905;  Stats. 
1905,  p.  396.] 

Who  are  stockholders:   See  ante,  §  298. 

Act  to  protect  stockholders  from  fraudulent  representations  of 
oflftcers:   See  post,  Appendix,  tit.  "Corporations." 

Liability  of  stockholders  for  debts  of  corporation  is  declared  in 
Const.  1879,  art.  xii,  §  3. 

Legislation  §  322,  1.  Enacted  March  21,  1872  (based  on  Stats.  1863, 
p.  766;  Stats.  1865-66,  p.  758,  §  17;  Stats.  1853,  p.  87,  §§  16,  17;  Const. 
1849,  art.  iv,  §  36),  and  then  read:  "Each  stockholder, or  member  of 
any  corporation  is  severally,  individually,  and  personally  liable  for 
such  proportion  of  all  its  debts  and  liabilities  as  the  amount  of  stock 
or  shares  owned  by  him  in  such  corporation  bears  to  the  whole  of  the 
subscribed  capital  stock  or  shares  of  the  corporation,  for  the  recovery 
of  which  joint  or  several  actions  may  be  instituted  and  prosecuted; 
and  in  any  such  action  against  any  of  the  stockholders  or  members  of 
a  corporation,  the  court  must  ascertain  and  determine  the  proportion 
of  the  debt  which  is  the  subject  of  the  suit  for  which  each  of  the  stock- 
holders or  members  who  are  defendants  in  the  action  are  severally 
liable,  and  judgment  must  be  given  severally  in  conformity  therewith. 
If  any  stockholder  or  member  of  a  corporation  pays  his  proportion  of 
any  debt  due  by  such  corporation,  he  is  released  and  discharged  from 
any  further  individual  or  personal  liability  for  such  debt.  Stock  held 
as  collateral  security,  or  by  a  trustee,  or  in  any  other  representative 
capacity,  does  not  make  the  holder  thereof  a  stockholder,  but  the 
pledgor  or  person  or  estate  represented  is  the  stockholder." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  203,  (1)  the  first  sentence 
then  reading,  "Each  stockholder  of  a  corporation  is  individually  and 
personally  liable  for  such  proportion  of  its  debts  and  liabilities  as  the 
amount  of  stock  or  shares  owned  by  him  bears  to  the  whole  of  the 
subscribed  capital  stock  or  shares  of  the  corporation,  and  for  a  like 
proportion  only  of  each  debt  or  claim  against  the  corporation";  (2) 
thereafter  the  section  differed  from  the  amendment  of  1905,  in  that  it 
had  (a)  in  sentence  beginning  "If  any  stockholder,"  "shall"  instead  of 
"must"  before  "be  dismissed";  (b)  in  sentence  beginning  "The  term," 
"shall  apply"  instead  of  "applies"  before  "not  only,"  and  "appear" 
instead  of  "appears"  before  "on  the  books";  (c)  in  sentence  beginning 
"Trust  funds,"  "shall  not  be"  instead  of  "are  not"  before  "liable," 
"shall"  instead  of  "must"  before  "the  person,"  and  "shall  continue" 
instead  of  "continues"  at  end  of  sentence;  (d)  as  first  words  of  final 
sentence,  "In  corporations"  instead  of  "In  a  corporation,"  and  "his 
proportion"  instead  of  "an  equal  share"  before  "of  its  debts";  (e)  but 
did  not  contain  the  final  sentence,  which  was  added  in  1875-76. 

3.  Amended  by  Code  Amdts.  1875-76,  p.  73,  the  only  change  from 
the  amendment  of  1873-74  being  the  addition  of  the  final  sentence, 
which  differed  from  the  amendment  of  1905  in  having  the  words  "shall 
be"  instead  of  "is"  before  "the  same  as  the  liability." 

4.  Amendment  by  Stats.  1901,  p.  349;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  396,  the  changes  made  being  noted 
supra,  in  amendments  of  1873-74  and  1875-76;  the  code  commissioner 


§  324  '        CIVIL  CODE.  124 

saying  in  his  note,  '"The  change  consists  in  the  substitution  of  the  lan- 
guage of  the  first  sentence  of  §  3  of  art.  xii  of  the  constitution  in  place 
of  the  first  sentence  of  the  present  section.  As  the  section  now  stands 
[formerly  stood],  it  is  believed  to  be  unconstitutional.  (See  Larrabee 
V.  Baldwin,  35  Cal.  155.)" 

§  323.  Certificates  of  stock,  how  and  when  issued.  All  cor- 
porations for  profit  must  issue  certificates  for  stock  when 
fully  paid  up,  signed  by  the  president  and  secretary,  and  may 
provide,  in  their  by-laws,  for  issuing  certificates  prior  to  full 
payment,  under  such  restrictions  and  for  such  purposes  as 
their  by-laws  may  provide,  but  any  certificate  issued  prior 
to  full  payment  must  show  on  its  face  what  amount  has  been 
paid  thereon.  All  certificates  of  stock  issued  by  corporations 
authorized  T5y  their  articles  of  incorporation  to  issue  stocks 
of  dift'erent  classes,  shall  express  upon  their  face  the  character 
of  stock  represented  by  said  certificates.  The  said  certificates 
shall  also  state  the  number  of  shares  of  stock  of  each  class 
which  said  corporation  is  authorized  to  issue,  and  the  said 
certificates  shall  also  contain  a  statement  of  the  nature  and 
extent  of  the  preference  granted  to  the  preferred  stock. 
[Amendment  approved  1907-  Stats.  1907,  p.  348.] 

Legislation  §  323.     1.  Enacted  March  21,  1872;  based  on  Stats.  1861, 

p.  614, §  14. 

2.  Amendment  by  Stats.  1901,  p.  350;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  348,  (1)  omitting  "the"  before  "full 
payment,"  and  (2)  adding  "but  any  certificate  issued  prior  to  full  pay- 
ment must  show  on  its  face  what  amount  has  been  paid  thereon";  the 
code  commissioner  saying  of  the  addition,  "The  object  being  to  require 
a  certificate  issued  prior  to  full  payment  to  show  the  amount  paid 
thereon." 

4.  Amended  by  Stats.  1907,  p.  348,  adding  the  last  two  sentences; 
the  code  commissioner  saying,  "to  cover  cases  of  the  issuance  of  pre- 
ferred and  common  stock." 

§324.  Transfer  of  shares  of  stock.  Certain  stock  appur- 
tenant to  land.  Whenever  the  capital  stock  of  any  corpora- 
tion is  divided  into  shares,  and  certificates  therefor  are  issued, 
such  shares  of  stock,  except  as  hereinafter  provided,  are  per- 
sonal property,  and  may  be  transferred  by  indorsement  by 
signature  of  the  proprietor,  his  agent,  attorney,  or  legal  repre- 
sentative, and  the  delivery  of  the  certificate ;  but  such  transfer 
is  not  valid,  except  as  to  the  parties  thereto,  until  the  same 
is  so  entered  upon  the  books  of  the  corporation  as  to  show 
the  names  of  the  parties  by  whom  and  to  whom  transferred, 
the  number  of  the  certificate,  the  number  or  designation  of  the 
shares,  and  the  date  of  the  transfer;  provided,  however,  that 
any  corporation  organized  for,  or  engaged  in  the  business  of 
selling,  distributing,  supplying,  or  delivering  water  for  irriga- 
tion purposes  or  for  domestic  use,  may  in  its  by-laws  provide 


125  STOCK   AND    STOCKHOLDERS.  §  325 

that  water  shall  only  be  so  sold,  distributed,  supplied,  or  de- 
livered to  owners  of  its  capital  stock,   and  that  such  stock 
shall   be   appurtenant   to    certain   lands   when  the    same   are 
described  in   the   certificate   issued   therefor;   and  when  such 
certificate  shall  be  so  issued,  and  a  certified  copy  of  such  by- 
law recorded  in  the  office  of  the  county  recorder  in  the  county 
where  such  lands  are  situated,  the  shares  of  stock  so  located 
on  any  land  shall  only  be  transferred  with  said  lands,   and 
shall  pass  as  an  appurtenance  thereto.     Whenever  any  officer 
of  any  corporation  shall  refuse  to  make  entries  upon  the  books 
thereof,  or  to  transfer  stock  therein,  or  to  issue  a  certificate  or 
certificates  therefor  to  the  transferee  as  provided  by  this  and 
the  next  preceding  section,  such  officer  shall  be  subject  to  a 
penalty  of  four  hundred  dollars,  to  be  recovered  as  liquidated 
damages,  in   an  action  brought  against   him   by   the  person 
aggrieved.     [Amendment  approved  1907;  Stats.  1907,  p.  854.] 
Legislation  §  324.     1,  Enacted  March  21,  1872  (based  on  Stats.  1862, 
p.   Ill;   Stats.   18(31,  p.   607,  §  12;   Stats.   1853,  p.   169,  §  l.S;   Stats.  18.53, 
p.   85.  §9;    Stats.    1862,   p.    199,   §21),    and    then    read:    "Whenever   the 
capital    stock   of   any   corporation    is   divided   into   shares,   and   certifi- 
cates therefor  are  issued,  such  shares  of  stock  are  personal  property 
and  may  be  transferred  by  indorsement  by  the  signature  of  the  pro- 
prietor, or  his  attorney  or  legal  representative,  and  delivery  of  the  cer- 
tificate;  but   such   transfer  is  not   valid,   except  between   the   parties 
thereto,  until  the  same  is  so  entered  upon  the  books  of  the  corporation 
as  to  show  the  names  of  the  parties  by  and  to  whom  transferred,  the 
number  or  designation  of  the  shares,  and  the  date  of  the  transfer." 

2.  Amended  by  Stats.  1895,  p.  118,  and  differed  from  the  amendment 
of  1907,  in  that,  (1)  in  first  sentence,  (a)  it  did  not  have  the  word 
"the"  before  "signature,"  but  (b)  had  "the"  before  "transfer"  preced- 
ing the  proviso,  and  (2)  did  not  contain  the  final  sentence,  which  was 
added  in  1907. 

3.  Amended  by  Stats.  1907,  p.  854,  adding  the  last  sentence. 

§  325.     Transfer  of  shares  held  by  married  women,  etc.    Div- 
idends payable  to  married  women.     Shares  of  stock  in  corpo- 
rations standing  on  the  books  of  the  corporation  in  the  name 
of  a  married  woman  may  be  transferred  by  her,  her  agent  or 
attorney,  without  the  signature  of  her  husband,  and  in  the 
same  manner  as  if  such   married  woman  were   a  feme   sole. 
All  dividends  payable  upon  any  of  such  shares  of  stock  may 
be  paid  to  her,  her  agent  or  attorney,  in  the  same  manner  as 
if  she  were   unmarried ;   and   any  proxy   or  power   given   by 
her,  touching  any  of  such  shares,  is  valid  and  binding,  and 
neither  it  nor  any  receipt  for  dividends  need  be  signed  by 
her  husband.     [Amendment  approved  1905 ;  Stats.  1905,  p.  397.] 
Dividends  on  married  women's  stock:   See  post,  §  575.  ' 
Legislation  §  325.     1.  iMiudcd  Mardi  21,  1872  (based  on  Stats.  1861, 
p.  607,  §  12),  and  then  read:   "Shares  of  stock  in  corporations  held  or 
owned  by  a  married  woman  may  be  transferred  by  her,  her  agent,  or 


§  326  CIVIL  CODE.  126 

attorney,  without  the  signature  of  her  husband,  in  the  same  manner  as 
if  such  married  woman  were  a  feme  sole.  All  dividends  payable  upon 
anj'  shares  of  stock  of  a  corporation  held  by  a  married  woman  may  be 
paid  to  such  married  woman,  her  agent,  or  attorney,  in  the  same  man- 
ner as  if  she  were  unmarried,  and  it  is  not  necessary  for  her  husband 
to  join  in  a  receipt  therefor;  and  any  proxy  or  power  given  by  a  mar- 
ried woman,  touching  any  shares  of  stock  of  any  corporation  owned 
by  her,  is  valid  and  binding  without  the  signature  of  her  husband,  the 
same  as  if  she  were  unmarried." 

2.  Amended  by  Stats.  1901,  p.  350;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  397;  the  code  commissioner  saying, 
"The  amendment  is  designed  to  make  it  clear  that  shares  of  stock 
standing  in  the  name  of  a  married  woman  are  presumed  to  be  her  sepa- 
rate property,  and  that  they  may  be  dealt  with  by  her  as  such,  in  the 
absence  of  proof  and  notice  to  the  contrary." 

§  326.    Affidavit  or  bond  may  be  required  before  transfer. 

When  the  shares  of  stock  in  a  corporation  are  owned  by  par- 
ties residing  out  of  the  state,  the  president,  secretary,  or  di- 
rectors of  the  corporation,  before  entering  any  transfer  of 
the  shares  on  its  books,  or  issuing  a  certificate  therefor  to  the 
transferee,  may  require  from  the  attorney  or  agent  of  the 
non-resident  owner,  or  from  the  person  claiming  under  the 
transfer,  an  affidavit  or  other  evidence  that  the  non-resident 
owner  was  alive  at  the  date  of  the  transfer,  and  if  such  affi- 
davit or  other  satisfactory  evidence  be  not  furnished,  may 
require  from  the  attorney,  agent,  or  claimant,  a  bond  of  in- 
demnity, with  two  sureties,  satisfactory  to  the  officers  of  the 
corporation;  or,  if  not  so  satisfactory,  then  one  approved  by 
a  judge  of  the  superior  court  of  the  county  in  which  the 
principal  office  of  the  corporation  is  situated,  conditioned  to 
protect  the  corporation  against  any  liability  to  the  legal  repre- 
sentatives of  the  owner  of  the  shares  in  case  of  his  or  her 
death  before  the  transfer;  and  if  such  affidavit  or  other  evi- 
dence or  bond  be  not  furnished  when  required  as  herein  pro- 
vided, neither  the  corporation  nor  any  officer  thereof  shall 
be  liable  for  refusing  to  enter  the  transfer  on  the  books  of 
the  corporation.  [Amendment  approved  1883;  Stats.  1883, 
p.  4.] 

Legislation  §  326.  1.  Enacted  March  21,  1872  (based  on  Stats.  1862, 
p.  110,  §  12),  and  then  read:  "In  all  transfers  of  shares  of  stock  in  cor- 
porations, on  behalf  of  owners  residing  out  of  the  state,  the  president, 
secretary,  or  directors  of  such  corporation,  before  entering  such  trans- 
fer on  the  books  of  the  corporation  or  issuing  the  certificate  therefor 
to  the  transferee,  must  require  from  such  attorney,  or  from  the  person 
claiming  under  such  transfer,  a  bond  of  indemnity,  with  two  sureties, 
satisfactory  -to  the  officers  of  the  corporation,  or  if  not  so  satisfactory, 
then  approved  by  the  district  judge  of  the  district  in  which  the  prin- 
cipal office  of  the  corporation  is  situated,  conditioned  to  protect  such 
corporation  against  any  liability  to  the  legal  representatives  of  the 
owner  of  such  stock,  in  case  of  his  or  her  death  before  such  transfer; 


J  27  STOCK   AND    STOCKHOLDERS.  §  328 

and  in  case  of  refusal  to  furnish  such  bonds  upon  request,  such  transfer 
is  utterly  void  as  against  the  corporation." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  205,  and  differed  from  the 
amendment  of  1883,  in  that  it  had  the  words  "district  judge,  or  the 
county  judge"  instead  of  "judge  of  the  superior  court." 

3.  Amended  by  Stats.  1883,  p.  4. 

§  327.  Contract  to  relieve  directors,  void.  Any  contract  or 
contracts,  verbal  or  written,  hereafter  made,  whereby  it  is 
sought  directly  or  indirectly  to  relieve  any  director  or  trustee 
of  any  corporation  or  joint-stock  association  from  any  liability 
imposed  by  section  three,  of  article  twelve,  of  the  constitu- 
tion of  California,  are  hereby  declared  to  be  and  shall  be 
null  and  void. 

Legislation  §  327.     Added  by  Code  Amdts.  1880,  p.  9. 

§  328.  Shares  of  stock,  etc. ;  duplicates,  how  issued.  When- 
ever a  certificate  of  stock  or  of  shares  in  a  corporation  organ- 
ized under  the  laws  of  this  state  has  been  lost,  destroyed  or 
wrongfully  withheld,  the  owner  thereof  may  bring  an  action 
against  such  corporation  in  the  superior  court  of  the  county 
in  which  is  located  its  principal  place  of  business,  for  the 
purpose  of  obtaining  a  new  or  duplicate  certificate.  If  by 
the  books  of  the  corporation  the  stock  stands  in  the  name  of 
a  person  other  than  the  plaintiff,  or  if  by  such  books  it  ap- 
pears that  some  other  person  claims  or  has  some  right,  title, 
or  interest  in,  or  lien  upon,  such  stock,  all  such  persons  must 
be  made  parties  defendant  with  the  corporation.  Summons 
must  be  issued  and  served  as  in  other  civil  actions,  and  in  ad- 
dition thereto,  the  court  must  direct  its  clerk  to  issue  and  cause 
to  be  published,  at  least  once  a  week  for  four  successive  weeks, 
in  some  newspaper  published  in  the  county,  a  notice  setting 
forth  the  pendency  of  the  action,  the  names  of  the  parties 
thereto,  the  court  in  which  it  is  pending,  the  name  of  the  cor- 
poration issuing  the  stock,  the  number  of  the  certificate  and 
the  number  of  the  shares,  the  name  of  the  person  mentioned 
as  stockholder  in  the  certificate,  and  notifying  all  persons 
claiming  said  shares,  or  any  of  them,  or  any  interest  or  lien 
therein  or  thereupon,  to  be  and  appear  before  the  court  at  a 
time  and  place  to  be  designated  in  the  notice  not  less  than 
thirty  days  from  the  first  publication  thereof,  then  and  there 
to  show  cause  why  a  new  certificate  should  not  be  directed  to 
be  issued  to  the  plaintiff,  and  to  set  forth  their  rights  in  or 
claim  to  such  shares.  If  any  one  appears  and  answers  or 
intervenes  in  the  action,  it  must  proceed  to  trial  as  in  other 
civil  cases,  and  the  court  must  enter  judgment  as  from  the 
facts  established  may  be  proper ;  but  if  no  one  appears  within 
the  time  designated  in  such  notice,  nor  within  the  time  allowed 


§329  CIVIL  CODE.  128 

by  law  after  the  services  of  such  summons,  the  court  must 
hear  such  evidence  as  may  be  offered  in  support  of  the  allega- 
tions of  the  complaint,  and  make  and  file  its  decision  thereon, 
and  thereupon  may  enter  its  judgment  canceling  the  lost, 
destroyed  or  wrongfully  withheld  certificate  and  directing  the 
corporation,  upon  payment  to  it  of  all  costs  incurred  by  it 
in  the  premises  and  without  costs  against  the  corporation,  to 
issue  to  the  plaintiff  a  new  or  duplicate  certificate.  After 
the  issuing  of  a  new  certificate  by  the  corporation  pursuant  to 
any  judgment  in  such  action,  no  action  can  ever  be  main- 
tained by  any  person  against  the  corporation  in  reference  to 
said  lost  or  destroyed  certificate  or  the  shares  represented 
thereby,  and  thereafter  any  such  action  is  forever  barred  as 
against  the   corporation. 

Legislation  §  c28.     Added  by  Stats.  1905,  p.  500. 

§  329.  Burned  bonds,  procedure  to  obtain  duplicates.  Form 
of  summons.  Judgment.  Indemnity.  AVlienever  a  bond  or 
bonds  of  a  corporation  oi'gnnizod  under  the  laws  of  this  state 
or  of  any  other  state,  or  any  territory  of  the  United  States  has 
or  hfive  been  lost  or  destroyed  in  this  state  by  fire,  earthquake, 
or  other  calamity,  the  OAvner  thereof  may  bring  an  action 
against  such  corporation  and  the  trustee  or  mortgagee  of  such 
bonded  indebtedness  in  the  superior  court  of  the  county  in 
which  such  bond  or  bonds  were  lost  or  destroyed,  or  in  which 
owner  resides,  or  in  which  is  located  the  principal  place  of 
business  of  such  corporation  for  the  purpose  of  obtaining  a 
ucAv  or  duplicate  bond  or  bonds.  If  said  bond  or  bonds  stand 
in  the  name  of,  or  are  registered  in  the  name  of  a  person  other 
than  the  plaintiff,  or  if  it  appears  by  the  books  of  the  corpora- 
tion that  any  other  person  claims  or  has  some  right,  title,  in- 
terest in,  or  lien  upon  such  bond  or  bonds,  all  such  persons 
must  be  made  parties  defendant  with  the  corporation  and  the 
trustee  and  mortgagee.  Summons  must  be  issued  and  served 
as  in  other  civil  actions  and  in  addition  thereto  the  court  must 
direct  its  clerk  to  issue  and  cause  to  be  published  at  least  once 
a  Aveek,  for  four  successive  AA^eeks,  in  some  ncAvspaper  pub- 
lished in  the  county  a  notice  setting  forth  the  pendency  of  the 
action,  the  names  of  the  parties  thereto,  the  court  in  Avhich  it 
is  pending,  the  name  of  the  corporation  aa^McIi  had  issued  the 
bond  or  bonds,  the  number  of  said  bond  or  bonds,  if  any,  and 
the  amount  thereof,  and  the  person  in  AA'hose  name  the  same 
stands  or  is  regisitered,  and  notifying  all  persons  claiming 
said  bond  or  bonds,  or  any  of  them  or  any  interest  or  lien 
therein  or  thereupon,  to  be  and  appear  before  the  court  at 
a  time  and  place  to  be  designated  in  the  notice,  not  less  than 
thirty  days  from  the  first  publication  thereof,  then  and  there 


129  ASSESSMENTS  OF  STOCK.  §  331 

to  show  cause  why  a  new  bond  or  bonds  should  not  be  di- 
rected to  be  issued  to  the  plaintiff  and  to  set  forth  their  rights 
in,  or  claims  to  such  bond  or  bonds.  If  any  one  appears 
and  answers  or  intervenes  in  the  action  it  must  proceed  to 
trial  as  in  other  civil  cases  and  the  court  must  enter  judg- 
ment as  from  the  facts  established  may  be  proper;  but  if  no 
one  appears  within  the  time  designated  in  said  notice,  nor 
within  the  time  allowed  by  law  after  the  service  of  such 
summons,  the  court  must  hear  such  evidence  as  may  be  offered 
in  support  of  the  allegations  of  the  complaint  and  make  and 
file  its  decision  thereon,  and  thereupon  may  enter  its  judgment 
canceling  the  lost  or  destroyed  bond  or  bonds  and  directing 
such  corporation,  upon  payment  to  it  of  all  costs  incurred  by 
it  in  the  premises,  and  upon  payment  to  it  of  the  money  re- 
quired and  necessary  to  reissue  new  bond  or  bonds  and  with- 
out costs  against  the  corporation  or  other  defendant,  mort- 
gagee or  trustee ;  to  issue  to  the  plaintiff  a  new  or  duplicate 
bond  or  bonds  upon  the  said  plaintiff  giving  proper  indemnity 
to  the  said  corporation  and  the  said  mortgagee  or  trustee. 
Legislation  §  329.     Added  by  Stats.  1907,  p.  116. 

AETICLE  II. 

Assessments  of   Stock. 

§  331.  Directors  may  levy  assessments. 

§  332.  Limitation.     How  levied. 

§  333.  Levy  of  assessment.     Old  assessment  remaining  unpaid. 

§  334.  "SVhat  order  shall  contain. 

§  335.  Notice  of  assessment.     Form. 

§  336.  Publication  and  service  of  notice. 

§  337.  Delinquent  notice.     Form. 

§  338.  Contents  of  notice. 

§  339.  How   published. 

§  340.  Jurisdiction   acquired,   how. 

§341.  Sale  to  be  by  public  auction. 

§  342.  Highest  bidder  to  be  the  purchaser.  ^ 

§  343.  In  default  of  bidders,  corporation  may  purchase. 

§  344.  Disposition  of  stock  purchased  by  corporation. 

§  345.  Extension  of  time  of  delinquent  stock  sale. 

§  346.  Assessments  shall  not  be  invalidated. 

§347.  Action  for  recovery  of  stock,  and  limitation  thereof. 

§  348.  Affidavits  of  publication.     Affidavits  of  sale.     To  be  filed. 

§  349.  Waiver  of  sale.     Action  to  recover  assessment. 

§331.  Directors  may  levy  assessments.  The  directors  of 
any  corporation  formed  or  existing  under  the  laws  of  this 
state,  after  one  fourth  of  its  capital  stock  has  been  subscribed, 
may,  for  the  purpose  of  paying  expenses,  conducting  business, 
or  paying  debts,  levy  and  collect  assessments  upon  the  sub- 
scribed capital  stock  thereof,  in  the  manner  and  form  and 

Civ.  Code — 9 


§  334  CIVIL  CODE.  130 

to  the  extent  provided  herein.     [Amendment  approved  1874; 
Code  Amdts.  1873^74,  p.  206.] 

Legislation  §  331,  1.  Enacted  March  21.  1872  (based  on  Stats.  1865- 
66,  p.  45S;  Stats.  1861,  p.  41,  §  1;  Stats.  1863-64,  p.  492,  §  1),  and  then 
read:  "The  directors  of  any  corporation  formed  under  the  laws  of  this 
state,  for  the  purpose  of  paying  expenses,  conducting  business,  or  pay- 
ing debts,  may  levy  and  collect  assessments  upon  the  capital  stock 
thereof,  in  the  manner  and  form  and  to  the  extent  provided  herein." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  206. 

§  332.  Limitation.  How  levied.  No  one  assessment  must 
exceed  ten  per  cent  of  the  amount  of  the  capital  stock  named 
in  the  articles  of  incorporation,  except  in  the  cases  in  this 
section  otherwise  provided  for,  as  follows : 

1.  If  the  whole  capital  of  a  corporation  has  not  been  paid 
up,  and  the  corporation  is  unable  to  meet  its  liabilities  or  to 
satisfy  the  claims  of  its  creditors,  the  assessment  may  be  for 
the  full  amount  unpaid  upon  the  capital  stock;  or  if  a  less 
amount  is  sufficient,  then  it  may  be  for  such  a  percentage  as 
will  raise  that  amount; 

2.  The  directors  of  railroad  corporations  may  assess  the 
capital  stock  in  installments  of  not  more  than  ten  per  cent 
per  month,  unless  in  the  articles  of  incorporation  it  is  other- 
wise provided ; 

3.  The  directors  of  fire  or  marine  insurance  corporations 
may  assess  such  a  percentage  of  the  capital  stock  as  they  deem 
proper. 

Legislation  §  332.  Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  458,  §  2. 

§333.  Levy  of  assessment.  Old  assessment  remaining  un- 
paid. No  assessment  must  be  levied  while  any  portion  of  a 
previous  one  remains  unpaid,  unless : 

1.  The  power  of  the  corporation  has  been  exercised  in  ac- 
cordance with  the  provisions  of  this  article  for  the  purpose 
of  collecting   such  previous   assessment ; 

2.  The  collection  of  the  previous  assessment  has  been  en- 
joined; or 

3.  The  assessment  falls  within  the  provisions  of  either  the 
first,  second,  or  third  subdivision  of  section  three  hundred 
and  thirty-two. 

Legislation  §  333.     Enacted  March  21,  1872. 

§  334.  What  order  shall  contain.  Every  order  levying  an 
assessment  must  specify  the  amount  thereof,  when,  to  whom, 
and  where  payable ;  fix  a  day,  subsequent  to  the  full  term  of 
publication  of  the  assessment  notice,  on  which  the  unpaid 
assessments  shall  be  delinquent,  not  less  than  thirty  nor  more 
than  sixty  days  from  the  time  of  making  the  order  levying 


.  •    ■.■■•*      „f   Trustee    Stockholders   for 
331a.     tNew.l     Persona.    Ua...t      of   Trus-e^^^^^   ^^   ^^^ 

Assessments.  Whenever  ^^^'^^f  °/  ^"\rustee  with  the  names  of 
poration  stands  in  the  ^^^:^\f^^,^jr^^,reon,  or  whenever  the 
?he  beneficiarie.  of  ^'^^''''^'J'f^Tis  shares  of  stock  is  held  m 
corporation  has  notic.  ^^^'l^^^^^l'^Jty^e  heneficiaries  of  such 
trust,    and    has    a   Ust    of    the   names  .^^    ^^,^    shares    is 

trust,  even  though  t^^^.f^'J^'^fe  individually,  and  without  any 
issued   in  the   name   o     the   trustee   i  ^^^^.^^    ^^^^ 

notice    thereon    of    sucn    ^rust.    tne    P  assessments    made    or 

trustee    shall    not    be    personally    liable    for  ^^^^    ^^^^^^^, 

levied    by    the    corporation    upon    such    soe   .^  ^^^    ^^^.^^^ 

liability  for  s-tock  assessments  shaU  on  y  ^^^^^^.^^.^^  ^,  the 
the  beneficial  owners  of  ^"^^J^^^'^^^titute  a  part.  (In  effect  90 
trust   of   which    such    stock    r^^>    c°nst.t  ^^^^     ^^^  ^ 

days   from    and    after   April    2..    UlS-     ^ta  ^_^  ^^^^^  ^^^g 


131  ASSESSMENTS  OF  STOCK.  §  336 

the  assessment;  and  a  day  for  the  sale  of  delinquent  stock, 
not  less  than  fifteen  nor  more  than  sixty  days  from  the  day 
the  stock  is  declared  delinquent. 

Legislation  §  334.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  459,  §  4. 

§  335.  Notice  of  assessment.  Form.  Upon  the  making  of 
the  order,  the  secretary  shall  cause  to  he  published  a  notice 
thereof,  in  the  following  form : 

(Name  of  corporation  in  full.  Location  of  principal  place 
of  business.)  Notice  is  hereby  given,  that  at  a  meeting  of  the 
directors,  held  on  the  (date),  an  assessment  of  (amount)  per 
share  was  levied  upon  the  capital  stock  of  the  corporation, 
payable  (when,  to  whom,  and  where).  Any  stock  upon  which 
this  assessment  shall  remain  unpaid  on  the  (day  fixed)  will  be 
delinquent  and  advertised  for  sale  at  public  auction,  and, 
unless  payment  is  made  before,  will  be  sold  on  the  (day  ap- 
pointed), to  pay  the  delinquent  assessment,  together  with  costs 
of  advertising  and  expenses  of  sale. 

(Signature  of  secretary,  with  location  of  office.) 
Legislation  §  335.     Enacted   March   21,   1872;    based   on   Stats.    1868, 

p.  540,  §  3. 

§  336.     Publication  and  service  of  notice.     The  notice  must 
be  personally  served  upon  each  stockholder,  or,  in  lieu  of  per- 
sonal service,  must  be  sent  through  the  mail,   addressed  to 
each  stockholder  at  his  place  of  residence,  if  known,  and  if 
not  known,  at  the  place  where  the  principal  office  of  the  cor- 
poration is  situated,  and  be  published  once  a  week,  for  four 
successive  weeks,  in  some  newspaper  of  general   circulation 
and  devoted  to  the  publication  of  general  news,  published  at 
the  place  designated  in  the  articles  of  incorporation  as  the 
principal  place  of  business,  and  also  in  some  newspaper  pub- 
lished in  the  county  in  which  the  works  of  the  corporation  are 
situated,  if  a  paper  be  published  therein.     If  the  works  of  the 
corporation  are  not  within  a  state  or  territory  of  the  United 
States,  publication  in  a  paper  of  the  place  where  they  are 
situated  is  not  necessary.     If  there  be  no  newspaper  published 
at  the  place  designated  as  the  principal  place  of  business  of 
the  corporation,  then  the  publication  must  be  made  in  some 
other  newspaper  of  the  county,  if  there  be  one,  and  if  there  be 
none,  then  in  a  newspaper  published  in  an  adjoining  county. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  206.] 
Legislation  §  336.     1.  Enacted  March  21,  1872  (based  on  Stats.  1865- 
66,  p.   459,  §6),  and  then   read:   "The   notice  must  be  published   once 
each  week  for  four  successive  weeks,  in  some  daily  or  weekly  paper 
published  at  the  place  designated  in  the  articles  of  incorporation  as 
the  principal  place   of  business,  and  also  in  some  paper  published  in 


§339  CIVIL  CODE.  182 

the  county  in  which  the  works  of  the  corporation  are  situated,  if  a 
paper  is  published  therein.  If  the  works  of  the  corporation  are  not 
situated  within  some  state  or  territory  of  the  United  States,  then  pub- 
lication in  a  paper  of  the  place  where  situated  is  not  necessary.  If 
there  is  no  newspaper  published  at  the  place  designated  as  the  prin- 
cipal place  of  business  of  the  corporation,  then  the  publication  must 
be  made  in  the  newspaper  published  in  an  adjoining  county.  The 
notice  may  be  served  by  delivering  a  copy  thereof,  certified  by  the 
secretary,  to  each  stockholder  personallj^;  and  in  case  of  such  service 
upon  all  the  stockholders  of  the  corporation,  no  notice  by  publication 
is  necessary,  but  such  personal  notice'  is  sufficient." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  206. 

§  337.  Delinquent  notice.  Form.  If  any  portion  of  the 
assessment  mentioned  in  the  notice  remains  unpaid  on  the 
day  specified  therein  for  declaring  the  stock  delinquent,  the 
secretary  must,  unless  otherAvise  ordered  by  the  board  of 
directors,  cause  to  be  published  in  the  same  papers  in  which 
the  notice  hereinbefore  provided  for  shall  have  been  published, 
a  notice  substantially  in  the  following  form : 

(Name  in  full.  Location  of  principal  place  of  business.) 
Notice. — There  is  delinquent  upon  the  following  described 
stock,  on  account  of  assessment  levied  on  the  (date),  (and 
assessments  levied  previous  thereto,  if  any),  the  several 
amounts  set  opposite  the  names  of  the  respective  shareholders, 
as  follows:  (Names,  number  of  certificate,  number  of  shares, 
amount).  And  in  accordance  Avith  law  (and  an  order  of  the 
board  of  directors,  made  on  the  [date],  if  any  such  order  shall 
have  been  made),  so  many  shares  of  each  parcel  of  such  stock 
as  may  be  necessary,  will  be  sold,  at  the  (particular  place). 
on  the  (date),  at  (the  hour)  of  such  day,  to  pay  delinquent 
assessments  thereon,  together  with  costs  of  advertising  and 
expenses  of  the  sale. 

(Name  of  secretary,  Avith  location  of  office.) 
Legislation  §  337.     Enacted  March  21.  1872;  based  on  Stats.  1863-64, 

p.  492,  §  2;  Stats.  1S65-66,  p.  460,  §  7. 

§  338.  Contents  of  notice.  The  notice  must  specify  every 
certificate  of  stock,  the  number  of  shares  it  represents,  and 
the  amount  due  thereon,  except  AAdiere  certificates  may  not 
have  been  issued  to  parties  entitled  thereto,  in  AA'hich  case  the 
number  of  shares  and  amount  due  thereon,  together  Avith  the 
fact  that  the  certificates  for  such  shares  have  not  been  issued, 
must  be  stated. 

Legislation  §  338.     Enacted  March  21.  1872;  based  on  Stats.  1865-66, 

p.  460,  §  S. 

§339.  How  published.  The  notice.  Avhen  published  in  a 
daily  paper,  must  be  published  for  ten  days,  excluding  Sun- 
days and  holidays,  previous  to  the  day  of  sale.     When  pub- 


133  ASSESSMENTS  OF  STOCK.  §  343 

lished  in  a  weekly  paper,  it  must  be  published  in  each  issue 
for  two  weeks  previous  to  the  day  of  sale.  The  first  publica^ 
tion  of  all  delinquent  sales  must  be  at  least  fifteen  days  prior 
to  the  day  of  sale. 

Legislation  §  339.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  460,  §  9. 

§340.  Jurisdiction  acquired,  how.  By  the  publication  of 
the  notice,  the  corporation  acquires  jurisdiction  to  sell  and 
convey  a  perfect  title  to  all  of  the  stock  described  in  the  notice 
of  sale  upon  which  any  portion  of  the  assessment  or  costs 
of  advertising  remains  unpaid  at  the  hour  appointed  for  the 
sale,  but  must  sell  no  more  of  such  stock  than  is  necessary  to 
pay  the  assessments  due  and  costs  of  sale. 

Legislation  §  340.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 

p.  460,  §  10. 

§  341.  Sale  to  be  by  public  auction.  On  the  day,  at  the 
place,  and  at  the  time  appointed  in  the  notice  of  sale,  the 
secretary  must,  unless  otherwise  ordered  by  the  directors,  sell 
or  cause  to  be  sold  at  public  auction,  to  the  highest  bidder 
for  cash,  so  many  shares  of  each  parcel  of  the  described  stock 
as  may  be  necessary  to  pay  the  assessment  and  charges  thereon, 
according  to  the  terms  of  sale;  if  payment  is  made  before  the 
time  fixed  for  sale,  the  party  paying  is  only  required  to  pay 
the  actual  cost  of  advertising,  in  addition  to  the  assessment. 
Legislation  §  341.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 

p.  460,  §11. 

§  342.  Highest  bidder  to  be  the  purchaser.  The  person  offer- 
ing at  such  sale  to  pay  the  assessment  and  costs  for  the  smallest 
number  of  shares  or  fraction  of  a  share  is  the  highest  bidder, 
and  the  stock  purchased  must  be  transferred  to  him  on  the 
stock-books  of  the  corporation,  on  payment  of  the  assessment 
and  costs. 

Legislation  §  342.     Enacted  March  21.  1872;  based  on  Stats.  1865-66, 

p.  460,  §  12. 

§  343.    In  default  of  bidders,  corporation  may  purchase.    If, 

at  the  sale  of  stock,  no  bidder  offers  the  amount  of  the  assess- 
ments and  costs  and  charges  due,  the  same  may  be  bid  in  and 
purchased  by  the  corporation,  through  the  secretary,  president, 
or  any  director  thereof,  at  the  amount  of  the  assessments,  costs, 
and  charges  due ;  and  the  amount  of  the  assessments,  costs,  and 
charges  must  be  credited  as  paid  in  full  on  the  books  of  the 
corporation,  and  entry  of  the  transfer  of  the  stock  to  the  cor- 
poration must  be  made  on  the  books  thereof.  While  the  stock 
remains  the  property  of  the  corporation  it  is  not  assessable, 
nor  must  any  dividends  be  declared  thereon;  but  all  assess- 


i  346  CIVIL  CODE.  134 

raents  and  dividends  mnst  be  apportioned  upon  the  stock  held 
by  the  stockholders  of  the  corporation. 

Legislation  §  343.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  460, §  13. 

§  344.    Disposition  of  stock  purchased  by  corporation.    All 

purchases  of  its  own  stock  made  by  any  corporation  vest  the 
legal  title  to  the  same  in  the  corporation ;  and  the  stock  so  pur- 
chased is  held  subject  to  the  control  of  the  stockholders,  who 
may  make  such  disposition  of  the  same  as  they  deem  fit,  in 
accordance  with  the  by-laws  of  the  corporation  or  vote  of  a 
majority  of  all  the  remaining  shares.  Whenever  any  portion 
of  the  capital  stock  of  a  corporation  is  held  by  the  corporation 
by  purchase,  a  majority  of  the  remaining  shares  is  a  majority 
of  the  stock  for  all  purposes  of  election  or  voting  on  any  ques- 
tion at  a  stockholders'  meeting. 

Legislation  §  344.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  461,  §  13. 

§  345.     Extension   of  time   of   delinquent   stock   sale.     The 

dates  fixed  in  any  notice  of  assessment  or  notice  of  delinquent 
sale,  published  according  to  the  provisions  hereof,  may  be  ex- 
tended from  time  to  time  for  not  more  than  thirty  days,  ])y 
order  of  the  directors,  entered  on  the  records  of  the  corpora- 
tion, or  by  the  secretary,  or  assistant  secretary,  of  the  corpora- 
tion w^hen  delinquent  sale  is  restrained  by  order  of  court,  or 
by  judge  thereof;  but  no  order  extending  the  time  for  the  per- 
formance^of  any  act  specified  in  any  notice  is  effectual  unless 
notice  of  such  extension  or  postponement  is  appended  to  and 
published  with  the  notice  to  Avhich  the  order  relates.  [Amend- 
ment approved  1913;  Stats.  1913,  p.  229.] 

Legislation  §  345.  1.  Enacted  March  21,  1872;  based  on  Stats.  1865- 
66,  p.  461,  §  14.  As  enacted  in  1872  it  read:  "The  dates  fixed  in  any 
notice  of  assessment  or  notice  of  delinquent  sale,  published  according 
to  the  provisions  hereof,  may  be  extended  from  time  to  time  for  not 
more  than  thirty  days,  by  order  of  the  directors,  entered  on  the  records 
of  the  corporation;  but  no  order  extending  the  time  for  the  perform- 
ance of  any  act  specified  in  any  notice  is  effectual  unless  notice  of  such 
extension  or  postponement  is  appended  to  and  published  with  the 
notice  to  which  the  order  relates." 
2.  Amended  by  Stats.  1913,  p.  220. 

§  346.  Assessments  shall  not  be  invalidated.  No  assessment 
is  invalidated  by  a  failure  to  make  pitblication  of  the  notices 
hereinbefore  provided  for,  nor  by  the  non-performance  of 
any  act  required  in  order  to  enforce  the  payment  of  the  same: 
but  in  case  of  any  substantial  error  or  omission  in  the  course 
of  proceedings  for  collection,  all  previous  proceedings,  except 
the  levying  of  the  assessment,  are  void,  and  publication  must 
be  begun  anew. 


135  ASSESSMENTS  OF  STOCK.  §  349 

Legislation  §  346.     Eiiacted  March  21,  1872;  based  on  Stats.  1867-68, 
p.  540,  §  3. 

§  347.    Action  for  recovery  of  stock,  and  limitation  thereof. 

No  action  must  1  e  sustained  to  recover  stock  sold  for  delin 
'quent  assessments,  upon  the  ground  of  irregularity  in  the 
assessment,  irregularity  or  defect  of  the  notice  of  sale,  or 
defect  or  irregularity  in  the  sale,  unless  the  party  seeking  to 
maintain  such  action  first  pays  or  tenders  to  the  corporation, 
or  the  party  holding  the  stock  sold,  the  sum  for  which  the  same 
was  sold,  together  with  all  subsequent  assessments  Avhich  may 
have  been  paid  thereon  and  interest  on  such  sums  from  the 
time  they  were  paid ;  and  no  such  action  must  be  sustained 
unless  the  same  is  commenced  by  the  filing  of  a  complaint  and 
the  issuing  of  a  summons  thereon  within  six  months  after  such 
sale  was  made. 

Legislation  §  347.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  461. 

§  348.  Affidavits  of  publication.  Affidavits  of  sale.  To  be 
filed.  The  publication  of  notice  required  by  this  article  may 
be  proved  by  the  affidavit  of  the  printer,  foreman,  or  principal 
clerk  of  the  newspaper  in  which  the  same  was  published ;  and 
the  affidavit  of  the  secretary  or  auctioneer  is  prima  facie  evi- 
dence of  the  time  and  place  of  sale,  of  the  quantity  and  par- 
ticular description  of  the  stock  sold,  and  to  whom,  and  for 
what  price,  and  of  the  fact  of  the  purchase-money  being  paid. 
The  affidavits  must  "be  filed  in  the  office  of  the  corporation,  and 
copies  of  the  same,  certified  by  the  secretary  thereof,  are  prima 
facie  evidence  of  the  facts  therein  stated.  Certificates,  signed 
by  the  secretary  and  under  the  seal  of  the  corporation,  are 
prima  facie  evidence  of  the  contents  thereof.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  207.] 

Legislation  §  348.     1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p.  229,  §  1),  and  then  read,   (1)   in  first  sentence,   (a)   "notices"  in- 
stead of  "notice,"  and   (b)   "paper"  instead  of  "newspaper,"   (2)   "pri- 
mary" instead  of  "prima  facie"  in  the  three  instances. 
2.  Amended  by  Code  Amdts.  1873-74,  p.  207. 

§  349.     Waiver  of  sale.    Action  to  recover  assessment.     On 

the  day  specified  for  declaring  the  stock  delinquent,  or  at 
any  time  subsequent  thereto  and  before  the  sale  of  the  delin- 
quent stock,  the  board  of  directors  may  elect  to  waive  further 
proceedings  under  this  chapter  for  the  collection  of  delinquent 
assessments,  or  any  i)art  or  portion  thereof,  and  may  elect  to 
proceed  by  action  to  recover  the  amount  of  the  assessment  and 
the  costs  and  expenses  already  incurred,  or  any  part  or  portion 
thereof. 

Legislation  §  349.     Enacted  March  21,  1872. 


§  354  CIVIL  CODE.  136 

CHAPTER  III. 

Corporate  Powers. 

Article  I.  General  Powers.     §§354-365. 

II.  Records.     §§  377,  378. 

in.  Examination  of  Corporations.     §§382-384. 

IV.  Judgment  agains't  and  Sale  of  Corporate  Property.    §§  388-393. 

AETICLE  I. 
General  Powers. 

§  354.     Powers  of  corporations. 

§  355.     Limitation  of  powers. 

§  356.     Banking  expressly  prohibited. 

§  357.     Misnomer  does  not  invalidate  instrument. 

§  358.     Corporations.     Time  in  which  must  be  organized.     Continuance  of 
business. 
.  §  359.     Fictitious  increase  of  stock  is  void.     How  capital  stock  may  be 
increased  or  diminished.     Bonded  indebtedness. 

§  360.     Corporations  may  acquire  real  property,  and  how  much. 

§  361.     Changing  number  of  directors  of  corporation. 

§  361a.  Transfer  of  franchise  of  corporation  not  valid  without  consent  of 
stockholders. 

§  362.     Amendment  of  articles  of  incorporation.     Majority  vote  of  direc- 
tors.    Amended  articles  filed.     Changes  not  permitted. 

§  363.     Corporations  may  own  their  lots  and  buildings.     [Repealed.] 

§  363.     Correction  of  erroneous  filing  of  articles  of  incorporation. 

§  364.     Corporations  may  transfer  foreign  concessions. 

§  365.     Restoration  of  lost  records,  certificates  of  stock,  etc. 

§  354.  Powers  of  corporations.  Everj^  corporation,  as  such, 
has  power: 

1.  Of  succession,  by  its  corporate  name ,  for  the  period  lim- 
ited; and  when  no  period  is  limited,  perpetually; 

2.  To  sue  and  be  sued,  in  any  court ; 

3.  To  make  and  use  a  common  seal,  and  alter  the  same  at 
pleasure ; 

4.  To  purchase,  hold,  and  convey  such  real  and  personal 
estate  as  the  purposes  of  the  corporation  may  require,  not  ex- 
ceeding the  amount  limited  in  this  part; 

5.  To  appoint  such  subordinate  officers  or  agents  as  the 
business  of  the  corporation  ma}'  require,  and  to  allow  them 
suitable   compensation ; 

6.  To  make  by-laws,  not  inconsistent  with  any  existing  law. 
for  the  management  of  its  property,  the  regulation  of  its 
affairs,  and  for  the  transfer  of  its  stock ; 

7.  To  admit  stockholders  or  members,  and  to  sell  their  stock 
or  shares  for  the  payment  of  assessments  or  installments ; 

8.  To  enter  into  any  obligations  or  contracts  essential  to 
the  transaction  of  its  ordinary  affairs,  or  for  the  purposes  of 
the  corporation. 

Powers  of  corporations.     The  code,  in  defining  a  corporation,  says  it 
has  "certain  powers  and  duties  of  a  natural  person":  Ante,  §  283. 


137  GENERAL  POWERS  OF  CORPORATIONS.  §  358 

Limitation  of  powers  to  those  enumerated  and  to  those  necessarily 
incidental:  Infra,  §  355. 

Succession  for  period  limited.  Code  limit  of  fifty  years:  See  ante, 
§290. 

Limit  for  homestead  corporations,  ten  years:  Post,  §  557. 

Where  action  against  corporation  may  he  hrought:  See  Const.  1879, 
art.  xii,  §  16;  see  Code  Civ.  Proc,  §  395. 

Acquiring  property  by  eminent  domain:  See  Code  Civ.  Proc,  §§  1237 
et  seq. 

Power  to  make  by-laws:  See  ante,  §  301.  . 

Selling  delinquent  shares:  See  ante,  §§331  et  seq. 

Legislation  §  354.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  347;  Stats.  1861,  p.  85,  §  4;  Stats.  1862,  p.  540,  §  3;  Field's  Draft  N.  Y. 
Civ.  Code,  vol.  2,  p.  125. 

§  355.  Limitation  of  powers.  In  addition  to  the  powers 
enumerated  in  the  preceding  section,  and  to  those  expressly 
given  in  that  title  of  this  part  nnder  which  it  is  incorporated, 
no  corporation  shall  possess  or  exercise  any  corporate  powers, 
except  such  as  are  necessary  to  the  exercise  of  the  powers  so 
enumerated  and  given. 

Incidental  powers.     This   section  is  a   negative   grant   of  incidental 
powers;  with  respect  to  which,  see  §  354. 
Enumeration  of  powers:  Supra,  §  354. 

Legislation  §  355.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p  347,  §  2. 

§  356.  Banking  expressly  prohibited.  No  corporation  shall 
create  or  issue  bills,  notes,  or  other  evidences  of  debt,  upon 
loans  or  otherwise,  for  circulation  as  money. 

Issuing  or  circulating  paper  money,  except  as  authorized  by  the 
United  States,  punishable:  Pen.  Code,  §  648. 

Constitutional  provisions  to  the  same  purpose:  Const.  1879,  art.  xii, 
§  5.  That  this  limitation  upon  corporate  powers  does  not  prevent  the 
execution  of  negotiable  instruments,  see  ante,  §  354,  subd.  8. 

Legislation  §  356.     Enacted   March   21,   1872;    based   on   Stats.   1850, 
•   p.  347,  §  3;  Stats.  1853,  p.  90,  §  15;  Const.  1849,  art.  iv,  §  35. 

§  357.  Misnomer  does  not  invalidate  instrument.  The  mis- 
nomer of  a  corporation  in  any  written  instrument  does  not 
invalidate  the  instrument,  if  it  can  be  reasonably  ascertained 
from  it  what  corporation  is  intended. 

Legislation  §  357.     Enacted   March   21,   1872;   based   on   Stats.    1862, 

p.  205,  §  26. 

§  358.  Corporations.  Time  in  which  must  be  organized. 
Continuance  of  business.  If  a  corporation  does  not  organize 
and  commence  the  transaction  of  its  business,  or  the  construc- 
tion of  its  works  within  one  year  from  the  date  of  its  incor- 
fjoration,  or  if,  after  its  organization  and  eomiiKMU'emeiit  of  its 
business,  it  shall  lose  or  dispose  of  all  of  its  property,  and  shall 
fail  for  a  period  of  two  years  to  elect  officers  and  transact,  in 


§  359  CIVLL   CODE.  138 

regular  order,  the  business  of  said  corporation,  its  corporate 
powers  shall  cease,  and  the  said  corporation  may  be  dissolved 
at  the  instance  of  any  creditor  of  the  said  corporation,  at  the 
suit  of  the  state,  on  the  information  of  the  attorney-general,  but 
the  resumption  of  its  business  in  good  faith  by  such  corpora- 
tion prior  to  the  commencement  thereof  shall  be  a  bar  to  such 
suit.  The  due  incorporation  of  any  company  claiming  in  good 
faith  to  be  a  corporation  under  this  part,  and  doing  business 
as  such,  or  its  right  to  exercise  corporate  powers,  shall  not  be 
inquired  into  collaterally  in  any  private  suit  to  which  such  de 
facto  corporation  may  be  a  party ;  but  such  inquiry  may  be  had 
at  the  suit  of  the  state  on  information  of  the  attorney-general ; 
provided,  however,  as  to  any  company  claiming  in  good  faith 
to  be,  and  which  has  been  doing  business  for  ten  consecutive 
years  as  a  corporation,  no  such  inquiry  shall  be  made  either  by 
the  state  or  by  any  person  whatsoever.  [Amendment  ap- 
proved 1901;  Stats.  1901,  p.  632.] 

Same  respecting  street-railroads:  See  post,  §  502. 

Provision  respecting  railroad  companies,  two  years:  See  post,  §  468. 

Legislation  §  358.  1.  Enacted  March  21.  1872  (based  on  Stats.  1862, 
p.  110,  §1),  and  then  read:  "If  a  corporation  does  not  organize  and 
commence  the  transaction  of  its  business  or  the  construction  of  its 
works  within  one  year  from  the  date  of  its  incorporation,  its  corporate 
powers  cease.  The  due  incorporation  of  any  company,  claiming  in 
good  faith  to  be  a  corporation  under  this  part,  and  doing  business  as 
such,  or  its  right  to  exercise  corporate  powers,  shall  not  be  inquired 
into,  collaterally,  in  any  private  suit  to  which  such  de  facto  corpora- 
tion may  be  a  party;  but  such  inquiry  may  be  had  at  the  suit  of  the 
state  on  information  of  the  attorney-general." 

2.  Amended  by  Stats.  1901,  p.  632. 

§  359.  Fictitious  increase  of  stock  is  void.  How  capital 
stock  may  be  increased  or  diminished.     Bonded  indebtedness. 

No  corporation  shall  issue  stocks  or  bonds  except  for  money 
paid,  labor  done  or  property  actually  received,  and  all  ficti- 
tious increase  of  stock  or  indebtedness  is  void.  Every  corpo- 
ration may  increase  or  diminish  its  capital  stock,  and  every 
corporation,  or  two  or  more  corporations,  may  create  or  in- 
crease its  or  their  bonded  indebtedness,  subject  to  the  follow- 
ing provisions : 

First.  The  capital  stock  of  a  corporation  may  be  increased 
or  diminished  at  a  meeting  of  the  stockholders  by  a  vote  rep- 
resenting at  least  tAvo  thirds  of  the  subscribed  or  issued  capi- 
tal stock,  or  in  the  manner  otherAvise  in  this  section  provided ; 
when  by  meeting  as  aforesaid,  then  such  meeting  must  be 
called  by  the  board  of  directors  or  trustees,  and  notice  must 
be  given  by  publication  in  a  newspaper  published  in  the 
county  or  city  and  county  where  the  principal  place  of  busi- 
ness of  the  corporation  is  located,  or  if  there  be  none  published 


359.  Fictitious  Increase  of  Stock  Is  Void;  How  Capital 
Stock    IVIay     Be     Increased    or    Diminished;     Bonded     Indebtedness. 

No  corporation  shall  issue  stocks  or  bonds  except  for  money 
paid,  labor  done  or  property  actually  received,  and  all  fictitious 
increase  of  stock  or  indebtedness  is  void.  Every  corporation  may 
increase  or  diminish  its  ca,pital  stock,  and  every  corporation,  or 
two  or  more  corporations,  may  create  or  increase  its  or  their 
bonded    indebtedness,    subject    to    the    following    provisions: 

1.  The  capital  stock  of  a  corporation  may  be  increased  or 
diminished  at  a  meeting  of  the  stockholders  by  a  vote  repre- 
senting at  least  two-thirds  of  the  subscribed  or  issued  capital 
stock,  or  in  the  manner  otherwise  in  this  section  provided;  when 
by  meeting  as  aforesaid,  then  such  meeting  must  be  called  by 
the  board  of  directors  or  trustees,  and  notice  must  be  given  by 
publication  in  a  newspaper  published  in  the  county  or  city  and. 
county  where  the  principal  place  of  business  of  the  corporation 
is  located,  or  if  there  be  none  published  in  said  county  or  city 
and  county,  then  in  a  newspaper  published  in  an  adjoining 
county,  or  city  and  county,  such  paper  to  be  designated  by  the 
board  of  directors  or  trustees  in  the  order  calling  for  the  meet- 
ing; provided,  however,  that  where  the  articles  of  incorporation 
provide  for  two  or  rnore  kinds  of  capital  stock,  no  increase  or 
reduction  of  capital  stock  shall  be  made  without  the  assent  of 
two-thirds  of  all  the  subscribed  stock,  and  in  making  such 
increase  or  reduction,  the  assent  shall  identify  the  particular 
class  or  classes  of  stock  to  be  increased  or  reduced,  and  the 
amounts   apportioned   to   each. 

2.  The  notice  must  specify  the  object  of  the  meeting  and  the 
amount  to  which  it  is  proposed  to  increase  or  diminish  the  capi- 
tal stock,  the  time  and  place  of  holding  the  meeting,  which  latter 
tnust  be  at  the  principal  place  of  business  of  the  corporation  and 
at  the  building  where  the  board  of  directors  or  trustees  usually 
meet.  The  notice  herein  provided  must  be  published  once  a  week 
for  at  least  sixty  days.  The  capital  stock  can  not  be  diminished 
to  an   amount   less   than   the   indebtedness   of   the   corporation. 

3.  The  bonded  indebtedness  of  a  corporation  may  be  created 
or  increased  by  a  vote  of  the  stockholders  representing  at  least 
two-thirds  of  the  subscribed  or  issued  capital  stock  at  a  meet- 
ing called  by  the  hoard  of  directors  or  trustees,  and  after  notice 
of  the  time  and  place  of  the  meeting  published  in  the  same  man- 
ner and  for  the  time  prescril)ed,  which  notice  shall  state  the 
amoimt  of  the  bonded  indebtedness  which  it  is  proposed  to  cre- 
ate, or  the  amount  to  which  it  is  proposed  to  Increase  such 
indebtedness,  and  shall  in  all  other  respects  contain  the  same 
matters  as  are  above  provided  and  set  forth  in  the  notice  .of 
meeting  to  increase  or  diminish  the  capital  stock;  or  such  original 
creation  of  bonded  indebtedness  may  be  nr^ade  as  otherwise  in 
this    section    provided. 


4.  In  addition  to  the  notice  by  publication,  when  proceedings 
are  to  be  had  hereunder  at  a  meeting  of  stockholders,  the' secre- 
tary of  the  corporation  shall  also  address  a  notice  to  each  of 
the  stockholders  whose  names  appear  on  the  company's  books  as 
sufficiently  addressed  or  identified,  at  his  place  of  residence,  if 
known,  and  if  not  known,  then  at  the  place  in  which  the  prin- 
cipal place  of  business  of  the  corporation  is  situate,  which  notice 
shall  be  so  mailed  to  such  stockholders  at  least  thirty  days 
before   the   day  appointed  for   such   meeting. 

5.  In  lievi  of  such  call  for  meeting  of  stockholders  and  of  such 
notice  and  publication  of  the  same  and  of  a  stockholders'  meet- 
ing held  in  pvu-suance  thereof  and  of  said  vote  thereat  represent- 
ing at  least  two-thirds  of  the  subscribed  capital  stock,  any  cor- 
poration may  diminish  its  capital  stock  and  also  originally  create 
its  bonded  indebtedness  by  a  resolution  adopted  by  the  unani- 
mous vote  of  its  board  of  directors  or  trustees  at  a  regular  meet- 
ing or  at  a  special  meeting  called  for  that  purpose  and  approved 
by  the  written  assent  or  assents  of  the  stockholders  holding  two- 
thirds  of  the  subscribed  or  issued  capital  stock,  which  assent  or 
assents  must  be  filed  with  the  secretary  of  the  corporation;  but 
the  secretary  of  the  corporation  must  address  by  mail,  postage 
fully  prepaid,  a  copy  of  such  resolution  to  each  of  the  stock- 
holders whose  names  appear  upon  the  company's  books  as  suffi- 
ciently addressed  or  identified,  at  his  place  of  residence,  if  known, 
and  if  not  known,  then  at  the  place  in  which  the  principal  place 
of  business  of  the  corporation  is  situate,  which  notice  shall  be 
so  mailed  to  [each  stockholder]  at  least  thirty  days  before  the 
certificate  heieinafter  provided  is  made  and  signed  or  filed,  as 
hereinafter  provided,  and  within  that  time  any  stockholder  may 
file  with  such  secretary  his  dissent  in  writing:  but  it  is  further 
provided,  that  if  at  any  time  within  said  thirty  days  such  writ- 
ten assent  or  assents  of  the  stockholders  holding  all  of  the  sub- 
scribed 6r  issued  capital  stock  be  so  filed  with  the  secretary, 
then  and  at  once  and  without  further  delay  the  certificate  here- 
inafter provided  for  may  be  so  made,  signed  and  filed  as  here- 
inafter provided  and  with  the  same  effect,  but  such  capital  stock 
can  not  be  diininished  to  an  amount  less  than  the  indebtedness 
of  the  corporation,  and  no  increase  of  capital  stock  or  bonded 
indebtedness  can  be  made,  except  at  a  meeting  of  the  stock- 
holders  as   in   this   section   provided. 

6.  Any  two  or  more  corporations  may  by  a  separate  compli- 
ance by  each  corporation  with  the  provisions  of  this  section 
applicable  in  the  premises  in  respect  to  creating  or  increasing 
bonded  indebtedness,  create  or  increase  a  consolidated  bonded 
indebtedness  of  such  corporation,  to  be  binding,  jointly  and 
severally  on  such  corporations,  and  which  may  be  secured  by 
a  consolidated  mortgage  or  deed  of  trust  executed  Viy  all  such 
corporations,   mortgaging  or   conveying  in   trust  all   or  any  of  the 


properties    of   all    such    corporations,    acquired    or    to    be    acquired. 

7.  Upon  such  increase  or  diminution  of  the  capital  stock  or 
creation  or  increase  of  the  bonded  indebtedness  being  made  in 
accordance  with  the  provisions  of  this  section  there  shall  be 
made,  if  proceedings  are  had  under  the  provisions  first,  second, 
third  and  fourth  above,  a  certificate  under  the  corporate  seal 
and  signed  by  the  president  and  secretary  of  the  corporation 
or  of  each  corporation  acting  in  the  premises  and  a  majority  of 
the  directors  or  trustees  of  such  corporation,  or  each  corporation 
so  acting,  showing  a  compliance  by  such  corporation,  or  each 
corporation  so  acting,  with  the  requirements  of  said  last  named 
subdivisions  and  the  amount  to  which  the  capital  stock  has  been 
increased  or  diminished  [and  the  number  of  shares  into  which 
the  capital  stock,  as  increased  or  diminished,  is  to  be  divided 
and  the  par  value  thereof]  or  the  amount  of  the  bonded  indebt- 
edness created,  or  to  which  the  bonded  indebtedness  may  have 
been  increased,  and  the  amount  of  stock  represented  at  the  meet- 
ing and  the  total  vote  in  the  affirmative  by  which  the  same  was 
accomplished  and  the  total  vote  in  the  negative;  or  if  such  pro- 
ceedings be  had  and  taken  under  subdivision  fifth  of  this  section 
as  to  diminution  of  capital  stock  or  original  creation  of  bonded 
indebtedness  a  like  certificate  shall  be  made  and  sealed  and 
signed  as  aforesaid,  showing  a  compliance  by  such  corporation, 
and  by  each  corporation  acting  in  the  premises,  with  the  require- 
ments of  said  subdivision  fifth,  and  the  amount  to  which  the 
capital  stock  has  been  diminished  [and  the  number  of  shares 
into  which  the  capital  stock,  as  diminished,  is  to  be  divided  and 
the  par  value  thereof  for]  the  amount  of  bonded  indebtedness  so 
originally  created,  and  the  total  amount  of  the  stock  represented 
by  the  said  written  assent  or  assents  so  filed  with  the  secretary 
and  the  total  amount  of  stock  represented  by  the  said  written 
dissent  or  dissents  so  filed.  In.  case  of  a  consolidated  bond  of 
(bonded)  indebtedness  each  corporation  which  is  a  party  thereto 
shall  cause  to  be  made  and  signed  and  sealed  and  verified  and 
filed,    as    in    this    section    provided,    a    separate    certificate. 

8.  In  all  cases  the  certificate  shall  state  the  total  number  of 
subscribed  or  issued  shares  of  the  capital  stock  of  the  corpora- 
tion, or  or  each  corporation  respectively  acting  in  the  premises, 
and  shall  be  verified  by  the  oath  of  the  said  president  and  secre- 
tary, or  of  the  said  respective  presidents  and  secretaries.  Such 
consolidated  bonded  indebtedness  may  be  created  or  increased 
to  an  amount  equal  to  the  par  or  face  value  of  the  aggregate 
amount  of  the  subscribed  or  issued  capital  stocks  of  said  two  or 
more  corporations,  but  shall  not  exceed  such  aggregate  amount. 
In  each  and  every  case  the  certificate  must  be  filed  in  [the  office] 
of  the  secretary  of  state,  and  thereupon  the  capital  stock  shall 
be  so  increased  or  diminished,  or  the  bonded  indebtedness  or 
consolidated    bonded    indebtedness    shall    be    created    or    increased 


accordingly.  [The  secretary  of  state  shall  forthwith  issue  a  cer- 
tified copy  of  said  certificate  and  transmit  said  copy  to  the 
county  clerl<  of  the  county  in  which  the  principal  place  of  busi- 
ness of  the  corporation  was  situated  at  the  time  said  corporation 
was  incorporated  which  copy  shall  be  filed  by  said  county  clerk 
upon  payment  of  the  fee  prescribed  by  law.  A  copy  of  such 
certificate,  certified  by  the  secretary  of  state,  shall  be  filed  by 
such  corporation  in  the  office  of  the  county  clerk  of  every  county 
in  which  said  corporation  has  or  holds  real  property.  Any  cor- 
poration which  shall  fail  to  comply  with  the  requirements  of  the 
preceding  sentence  shall  be  subject  to  the  penalties  and  liabil- 
ities provided  in  section  two  hundred  ninety-nine  for  a  failure  of 
corporations  to  file  copies  of  their  articles  of  incorporation  with 
the  county  clerks  of  the  counties  in  which  they  shall  purchase, 
hold  or  locate  real  property;]  and  such  certificate  or  certificates 
so  filed  shall  be,  when  said  certified  copy  or  copies  are  so  filed, 
conclusive  proof  of  such  increase  or  diminution  of  capital  stock 
or  such  creation  or  increase  of  bonded  or  consolidated  bonded 
indebtedness  and  the  validity  of  each  thereof.  When  the  by-laws 
of  a  corporation  prescribe  the  paper  in  which  notices  of  meet- 
ings of  directors  or  trustees  or  stockholders  are  to  be  published 
the  notices  or  publication  herein  provided  for  shall  be  published 
in  such  paper,  unless  publication  thereof  shall  have  ceased.  (In 
effect  90  days  from  and  after  April  29,  1921.  Stats.  1921,  Chap. 
131.)  Civ.  Code,  1921. 


139  GENERAL  POWERS  OF  CORPORATIONS,  §  359 

in  said  county  or  city  and  county,  then  in  a  newspaper  pub- 
lished in  an  adjoining  county,  or  city  and  county,  such  paper 
to  be  designated  by  the  board  of  directors  or  trustees  in  the 
order  calling  for  the  meeting ;  provided,  however,  that  where 
the  articles  of  incorporation  provide  for  two  or  more  kinds  of 
capital  stock,  no  increase  or  reduction  of  capital  stock  shall 
be  made  without  the  assent  of  tAvo  thirds  of  all  the  subscribed 
stock,  and  in  making  such  increase  or  reduction,  the  assent 
shall  identify  the  particular  class  or  classes  of  ^ock  to  be  in- 
creased or  reduced,  and  the  amounts  apportioned  to  each. 

Second.  The  notice  must  specify  the  object  of  the  meeting 
and  the  amount  to  which  it  is  proposed  to  increase  or  diminish 
the  capital  stock,  the  time  and  place  of  holding  the  meeting, 
which  latter  must  be  at  the  principal  place  of  business  of  the 
corporation  and  at  the  building  where  the  board  of  directors 
or  trustees  usually  meet.  The  notice  herein  provided  must  be 
published  once  a  week  for  at  least  sixty  days.  The  capital 
stock  cannot  be  diminished  to  an  amount  less  than  the  indebt- 
edness of  the  corporation. 

Third.  The  bonded  indebtedness  of  a  corporation  may  be 
created  or  increased  hy  a  vote  of  the  stockholders  represent- 
ing at  least  tAvo  thirds  of  the  subscribed  or  issued  capital  stock 
at  a  meeting  called  by  the  board  of  directors  or  trustees,  and 
after  notice  of  the  time  and  place  of  the  meeting  published 
in  the  same  manner  and  for  the  time  prescribed,  Avhich  notice 
shall  state  the  amount  of  the  bonded  indebtedness  Avhich  it  is 
proposed  to  create,  or  the  amount  to  Avhich  it  is  proposed  to 
increase  such  indebtedness,  and  shall  in  all  other  respects  con- 
tain the  same  matters  as  are  above  provided  and  set  forth  in 
the  notice  of  meeting  to  increase  or  diminish  the  capital  stock; 
or  such  original  creation  of  bonded  indebtedness  may  be  made 
as  otherwise  in  this  section  provided. 

Fourth.  In  addition  to  the  notice  by  pulilication,  Avhen  pro- 
ceedings are  to  be  had  hereunder  at  a  meeting  of  stockholders, 
the  secretary  of  the  corporation  shall  also  address  a  notice  to 
each  of  the  stockholders  whose  names  appear  on  the  com- 
pany's books  as  sufficiently  addressed  or  identified,  at  his  place 
of  residence,  if  known,  and  if  not  known,  then  at  the  place 
in  Avhieh  the  principal  place  of  business  of  the  corporation  is 
situate,  which  notice  shall  be  so  mailed  to  such  stockholders 
at  least  thirty  days  before  the  day  appointed  for  such  meeting. 

Fiftli.  In  lieu  of  such  call  for  meeting  of  stockholders  and 
of  such  notice  and  publication  of  the  same  and  of  a  stockhold- 
ers' meeting  held  in  pursuance  thereof  and  of  said  vote  thereat 
representing  at  least  two  thirds  of  the  subscribed  capital 
stock,  any  corporation  may  diminish  its  capital  stock  and  also 
originally    create   its    bonded    indebtedness    by   a    resolution 


§  359  CIVIL  CODE.  140 

adopted  by  the  unanimous  vote  of  its  board  of  directors  or 
trustees  at  a  regular  meeting  or  at  a  special  meeting  called 
for  that  purpose  and  approved  by  the  written  assent  or  assents 
of  the  stockholders  holding  two  thirds  of  the  subscribed  or 
issued  capital  stock,  which  assent  or  assents  must  be  filed  with 
the  secretary  of  the  corporation ;  but  the  secretary  of  the  cor- 
poration must  address  by  mail,  postage  fully  prepaid,  a  copy 
of  such  resolution  to  each  of  the  stockholders  whose  names 
appear  upon  the  company's  books  as  sufficiently  addressed  or 
identified,  at  his  place  of  residence,  if  known,  and  if  not 
known,  then  at  the  place  in  which  the  principal  place  of  busi- 
ness of  the  corporation  is  situate,  which  notice  shall  be  so 
mailed  to  such  stockholders  at  least  thirty  days  before  the  cer- 
tificate hereinafter  provided  is  made  and  signed  or  filed,  as 
hereinafter  provided,  and  within  that  time  any  stockholder 
may  file  with  such  secretary  his  dissent  in  writing ;  but  it  is 
further  provided,  that  if  at  any  time  within  said  thirty  days 
such  written  assent  or  assents  of  the  stockholders  holding  all 
of  the  subscribed  or  issued  capital  stock  be  so  filed  with  said 
secretary,  then  and  at  once  and  without  further  delay  the 
certificate  hereinafter  provided  for  may  be  so  made,  signed 
and  filed  as  hereinafter  provided  and  with  the  same  effect, 
but  such  capital  stock  cannot  be  diminished  to  an  amount  less 
than  the  indebtedness  of  the  corporation,  and  no  increase  of 
capital  stock  or  bonded  indebtedness  can  be  made,  except  at 
a  meeting  of  stockholders  as  in  this  section  provided. 

Sixth.  Any  two  or  more  corporations  may  by  a  separate 
compliance  by  each  corporation  with  the  provisions  of  this 
section  applicable  in  the  premises  in  respect  to  creating  or  in- 
creasing bonded  indebtedness,  create  or  increase  a  consoli- 
dated bonded  indebtedness  of  such  corporations,  to  be  binding 
jointly  and  severally  on  such  corporations,  and  which  may  be 
secured  by  a  consolidated  mortgage  or  deed  of  trust  executed 
by  all  such  corporations,  mortgaging  or  conveying  in  trust  all 
or  any  of  the  properties  of  all  such  corporations,  acquired  or 
to  be  acquired. 

Seventh.  Upon  such  increase  or  diminution  of  the  capital 
stock  or  creation  or  increase  of  the  bonded  indebtedness  being 
made  in  accordance  with  the  provisions  of  this  section  there 
shall  be  made,  if  proceedings  are  had  under  subdivisions  first, 
second,  third  and  fourth  above,  a  certificate  under  the  corpo- 
rate seal  and  signed  by  the  president  and  secretary  of  the  cor- 
poration or  of  each  corporation  acting  in  the  premises  and  a 
majority  of  the  directors  or  trustees  of  such  corporation,  or 
each  corporation  so  acting,  showing  a  compliance  by  such  cor- 
poration, or  each  corporation  so  acting,  with  the  requirements 
of  said  last-named  subdivisions  and  the  amount  to  which  the 


141  GENERAL  POWERS  OP  CORPORATIONS.  §  359 

capital  stock  has  been  increased  or  diminished  or  the  amount 
of  the  bonded  indebtedness  created,  or  to  which  the  bonded 
indebtedness  may  have  been  increased,  and  the  amount  of 
stock  represented  at  the  meeting  and  the  total  vote  in  the 
affirmative  by  which  the  same  was  accomplished  and  the 
total  vote  in  the  negative ;  or  if  such  proceedings  be  had 
and  taken  under  subdivision  fifth  of  this  section  as  to  diminu- 
tion of  capital  stock  or  original  creation  or  bonded  indebt- 
edness a  like  certificate  shall  be  made  and  sealed  and 
signed,  as  aforesaid,  showing  a  compliance  by  such  corporation, 
and  by  each  corporation  acting  in  the  premises,  with  the  re- 
quirements of  said  subdivision  fifth,  and  the  amount  to  which 
the  capital  stock  has  been  diminished  or  the  amount  of  bonded 
indebtedness  so  originally  created,  and  the  total  amount  of  the 
stock  represented  by  the  said  written  assent  or  assents  so  filed 
with  the  secretary  and  the  total  amount  of  stock  represented 
by  the  said  written  dissent  or  dissents  so  filed.  In  case  of  a 
consolidated  bond  of  indebtedness  each  corporation  which  is 
a  party  -thereto  shall  cause  to  be  made  and  signed  and  sealed 
and  verified  and  filed,  as  in  this  section  provided,  a  separate 
certificate. 

Eighth.  In  all  cases  the  certificates  shall  state  the  total 
number  of  subscribed  or  issued  shares  of  the  capital  stock  of 
the  corporation,  or  of  each  corporation  respectively  acting  in 
the  premises,  and  shall  be  verified  by  the  oath  of  the  said  presi- 
dent and  secretary,  or  of  the  said  respective  presidents  and 
secretaries.  Such  consolidated  bonded  indebtedness  may  be 
created  or  increased  to  an  amount  equal  to  the  par  or  face 
value  of  the  aggregate  amount  of  the  subscribed  or  issued  capi- 
tal stocks  of  said  two  or  more  corporations,  but  shall  not  ex- 
ceed such  aggregate  amount.  In  each  and  every  case  the 
certificate  must  be  filed  in  the  office  of  the  clerk  in  the  county 
or  city  and  county  wh«re  the  original  articles  of  incorporation 
of  the  corporation  or  corporations  acting  hereunder  are  filed 
and  a  certified  copy  thereof,  certified  by  such  clerk,  shall  be 
filed  in  the  office  of  the  secretary  of  state ;  and  thereupon  the 
capital  stock  shall  be  so  increased  or  diminished,  or  the  bonded 
indebtedness  or  consolidated  bonded  indebtedness  shall  be 
created  or  increased  accordingly,  and  such  certificate  or  cer- 
tificates so  filed  shall  be,  when  said  certified  copy  or  copies  are 
so  filed,  conclusive  proof  of  such  increase  or  diminution  of 
capital  stock  or  such  creation  or  increase  of  bonded  or  con- 
solidated bonded  indebtedness  and  the  validity  of  each  thereof. 
When  the  by-laAvs  of  a  corporation  prescribe  the  paper  in 
which  notices  of  meetings  of  directors  or  trustees  or  stockhold- 
ers are  to  be  published  the  notices  of  publication  herein  pro- 
vided for  shall  be  published  in  such  paper,  unless  publication 


§  359  CIVIL  CODE.  142 

thereof  shall  have  ceased.     [Amendment  approved  1907;  Stats. 
1907,  p.  349.] 

Legislation  §  359.  1.  Enacted  Marcli  21,  1872  (based  on  Stats.  1850. 
p.  347,  §§153,  196;  Stats.  1853,  p.  87,  §  20;  Stats.  1853,  p.  169,  §  25; 
Stats.  1865-66,  p.  747,  §  17;  Stats.  1861,  p.  567,  §§  14,  15,  16;  Stats.  1862, 
p.  199,  §§  18,  19,  20;  Stats.  1867-68,  p.  325,  §  4;  Stats.  1863,  p.  91,  §§  20, 
21,  22),  and  then  read:  "Every  corporation  may  increase  or  diminish 
its  capital  stock  as  in  this  section  provided:  1.  By  a  majority  vote  of 
the  directors  there  may  be  called  a  meeting  of  the  stockholders,  to  be 
convened  for  the  purpose  of  increasing  or  of  diminishing  the  capital 
stock;  2.  Personal  notice  of  the  time  and  place  of  such  meeting,  and 
the  object  thereof,  must  be  served  on  each  stockholder  resident  in  this 
state;  or,  in  lieu  thereof,  the  notice  must  be  published  in  every  issue 
of  a  newspaper  published  in  the  county  where  the  principal  place  of 
business  is  located,  for  four  weeks  successively;  3.  The  notice  must 
also  contain  the  amount  to  which  it  is  proposed  to  increase  or  diminish 
the  capital  stock;  4.  The  capital  stock  must  in  no  case  be  diminished 
to  an  amount  less  than  the  indebtedness  of  the  corporation  or  the  esti- 
mated cost  of  the  works  which  it  may  be  the  object  or  purpose  of  the 
corporation  to  construct;  5.  At  least  four  fifths  of  all  the  capital  stock 
must  be  represented  at  such  meeting,  and  at  least  two  thirds  of  the 
entire  capital  stock  must  vote  in  favor  of  such  increase  or  diminution 
before  the  same  is  effected;  6.  A  certificate,  signed  and  verified  by  the 
chairman  and  secretary  of  the  meeting,  must  be  made,  showing  a  strict 
compliance  with  all  the  requirements  of  this  section,  the  amount  to 
which  the  capital  stock  has  been  increased  or  diminished,  the  amount 
of  stock  (and  by  whom  held)  represented  at  the  meeting,  the  vote  by 
which  the  object  was  accomplished,  the  amount  of  capital  stock  ac- 
tually paid  in,  and  the  amount  of  all  debts  and  liabilities  of  the  corpo- 
ration, and  how  secured;  7.  This  certificate  must  be  subscribed  by  a 
majority  of  the  directors,  and  duplicates  made,  one  to  be  filed  in  the 
oflSce  of  the  county  clerk  and  one  in  the  ofiice  of  the  secretary  of 
state,  as  provided  for  original  articles  of  incorporation,  and  thereupon 
the  capital  stock  is  so  increased  or  diminished." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  207,  to  read:  "Every  corpo- 
ration may  increase  or  diminish  its  capital  stock  at  a  meeting  called 
for  that  purpose  by  the  directors,  as  follows:  One.  Notice  of  the  time 
and  place  of  the  meeting,  stating  its  object  and  the  amount  to  which 
it  is  proposed  to  increase  or  diminish  the  capital  stock,  niiist  be  per- 
sonally served  on  each  stockholder  resident  in  the  state,  at  his  place 
of  residence,  if  known,  and  if  not  known,  at  the  place  where  the  prin- 
cipal office  of  the  corporation  is  situated,  and  be  published  in  a  news- 
paper publishe'd  in  the  county  of  such  principal  place  of  business,  once 
a  week,  for  four  weeks  successively.  Two.  The  capital  stock  must 
in  no  case  be  diminished  to  an  amount  less  than  the  indebtedness  of 
the  corporation,  or  the  estimated  cost  of  the  works  which  it  may  be 
the  purpose  of  the  corporation  to  construct.  Three.  At  least  two 
thirds  of  the  entire  capital  stock  must  be  represented  by  the  vote  in 
favor  of  the  increase  or  diminution,  before  it  can  be  effected.  Four. 
A  certificate  must  be  signed  by  the  chairman  and  secretary  of  the 
meeting,  and  a  majority  of  the  directors,  showing  a  compliance  with 
the  requirements  of  this  section,  the  amount  to  which  the  capital  stock 
has  been  increased  or  diminished,  the  amount  of  stock  represented  at 
the  meeting,  and  the  vote  by  which  the  object  was  accomplished. 
Five.  The  certificate  must  be  filed  in  the  office  of  the  county  clerk 
where  the  original  articles  of  incorporation  were  filed,  and  a  certified 
copy  thereof  in  the  office  of  the  secretary  of  state,  and  thereupon  the 


143  GENERAL  POWERS  OP  CORPORATIONS.  §  359 

capital  stock  shall  be  so  increased  or  diminished.  Six.  The  written 
assent  of  the  holders  of  three  fourths  of  the  .subscribed  capital  stock 
shall  be  as  effectual  to  authorize  the  increase  or  diminution  of  the 
capital  stock,  as  if  a  meeting  were  called  and  held;  and  upon  such 
written  assent,  the  directors  may  proceed  to  make  the  certificate 
herein  provided  for." 

3.  Amended  by  Stats.  1883,  p.  31,  to  read:  "Every  corporation  may 
increase  or  diminish  its  capital  stock  at  a  meeting  of  the  stockholders 
called  for  that  purpose  by  the  directors,  as  follows:  1.  Notice  of  the 
time  and  place  of  the  meeting,  stating  its  object,  and  the  amount  to 
which  it  is  proposed  to  increase  or  diminish  the  capital  stock,  and  the 
number  of  shares  into  which  the  capital  stock  is  to  be  divided,  must 
be  given  by  publication  thereof  in  a  newspaper  of  general  circulation, 
published  in  the  county,  or  city  and  county,  in  which  the  principal 
office  of  the  corporation  is  located,  for  at  least  sixty  days,  and  posting 
a  copy  thereof  for  the  same  period  in  a  conspicuous  place  in  said  office. 
If  the  publication  be  in  a  daily  newspaper  there  shall  be  not  less  than 
six  insertions  per  week,  and  if  in  a  weekly  newspaper  there  shall  be 
not  less  than  nine  insertions.  2.  The  capital  stock  must  in  no  case  be 
diminished  to  an  amount  less  than  the  indebtedness  of  the  corporation 
or  the  estimated  cost  of  the  works  which  it  may  be  the  purpose  of  the 
corporation  to  construct,  nor  shall  the  capital  stock  be  increased  with- 
out the  consent  at  said  meeting  of  the  persons  holding  at  least  two 
thirds  in  value  of  the  stock  of  the  corporation.  3.  If  at  said  meeting 
it  be  determined  to  increase  or  diminish  the  capital  stock,  as  the  case 
may  be,  a  certificate  must  be  signed  by  the  chairman  and  secretary  of 
the  meeting  and  a  majority  of  the  directors  of  the  corporation,  show- 
ing a  compliance  with  the  requirements  of  this  section  in  calling  and 
giving  notice  of  the  meeting,  the  amount  of  increase  or  diminution  of 
the  capital  stock  and  number  of  shares,  if  any  change  has  been  made, 
the  names  of  persons  consenting  to  the  action,  and  amount  of  stock 
held  by  them.  The  certificate  must  be  acknowledged  by  the  persons 
making  it,  before  an  officer  competent  to  take  acknowledgment  of 
deeds.  4.  The  certificate  must  be  filed  in  the  office  of  the  county  clerk, 
where  the  original  articles  of  incorporation  were  filed,  and  a  certified 
copy  thereof  in  the  office  of  the  secretary  of  state,  and  thereupon  the 
capital  stock  shall  become  increased  or  diminished  as  in  the  certificate 
set  forth  composed  of  the  number  of  shares  therein  specified.  5.  If 
the  stockholders,  at  a  meeting  called  to  increase  the  capital  stock  of  a 
corporation,  direct  any  special  disposition  to  be  made  of  the  stock 
to  be  issued  in  excess  of  the  original  capital  stock,  the  directors  shall 
dispose  of  the  same  as  so  directed." 

4.  Amended  by  Stats.  1885,  p.  141,  to  read:  "No  corporation  shall 
issue  stock  or  bonds  except  for  money  paid,  labor  done,  or  property 
actually  received,  and  all  fictitious  increase  of  stock  or  indebtedness 
shall  be  void.  Every  corporation  may  increase  or  diminish  its  capital 
stock,  or  increase  its  bonded  indebtedness,  subject  to  the  foregoing 
provision  of  this  section,  at  a  meeting  called  by  the  directors  for  the 
purpose,  as  follows:  1.  Notice  of  the  time  and,  the  place  of  the  meet- 
ing, stating  its  object,  and  the  amount  to  which  it  is  proposed  to 
increase  or  diminish  the  capital  stock,  must  be  personally  served  on 
each  stockholder  resident  in  the  state,  at  his  place  of  residence,  if 
known,  and  if  not  known,  at  the  place  where  the  principal  office  of 
the  corporation  is  situated,  and  be  published  in  a  newspaper  published 
in  the  county  of  such  principal  place  of  business  once  a  week  for 
nine  weeks  successively.  2.  The  capital  stock  must  in  no  case  be 
diminished  to  an  amount  less  than  the  indebtedness  of  the  corporation, 


§  359  CIVIL  CODE.  144 

or  the  estimated  cost  of  the  works  which  it  may  be  the  purpose  of 
the  corporation  to  construct.  3.  At  least  two  thirds  of  the  entire 
capital  stock  must  be  represented  by  the  vote  in  favor  of  the  increase, 
diminution,  before  it  can  be  effectual.  ,4.  A  certificate  must  be  signed 
by  the  chairman  and  secretary  of  the  meeting  and  a  majority  of  the 
directors,  showing  a  compliance  with  the  requirements  of  this  sec- 
tion, the  amount  to  which  the  capital  stock  has  been  increased  or 
diminished,  the  amount  of  stock  represented  at  the  meeting,  and  the 
vote  by  which  the  object  was  accomplished.  5.  The  certificate  must 
be  filed  in  the  office  of  the  county  clerk  where  the  original  articles 
of  incorporation  were  filed,  and  a  certified  copy  thereof  in  the  office 
of  the  secretary  of  state,  and  thereupon  the  capital  stock  shall  be 
so  increased  or  diminished,  or  the  bonded  indebtedness  may  be  in- 
creased accordingly." 

5.  Amended  by  Stats.  1889,  p.  364,  to  read:  "No  corporation  shall 
issue  stock  or  bonds  except  for  money  paid,  labor  done,  or  property 
actually  received,  and  all  fictitious  increase  of  stock  or  indebtedness 
is  void.  Everj'  corporation  may  increase  or  diminish  its  capital  stock, 
create  or  increase  its  bonded  indebtedness,  subject  to  the  foregoing 
provision.  The  capital  stock  of  a  corporation  may  be  increased  or 
diminished  at  a  meeting  of  the  stockholders  by  a  vote  representing 
at  least  two  thirds  of  the  capital  stock.  Such  meeting  must  be  called 
by  the  board  of  directors,  and  notice  must  be  given  by  publication  in 
a  newspaper  published  in  the  county  where  the  principal  place  of  busi- 
ness of  such  corporation  is  located,  or  if  there  be  none  published  in 
said  county,  then  in  a  newspaper  published  in  an  adjoining  county, 
such  paper  to  be  designated  by  the  board  of  directors  in  the  order 
calling  the  meeting,  which  order  must  be  made  at  least  one  month 
before  the  publication  begins.  The  notice  must  specify  the  object  of 
the  meeting,  and  the  amount  to  which  it  is  proposed  to  increase  or 
diminish  the  capital  stock,  the  time  and  place  of  holding  the  meeting, 
which  latter  must  be  at  the  principal  place  of  business  of  the  cor- 
poration, and  at  the  building  where  the  board  of  directors  usually 
meet.  The  notice  herein  provided  must  be  published  at  least  once  a 
week  for  at  least  sixty  days.  The  capital  stock  cannot  be  diminished 
to  an  amount  less  than  the  indebtedness  of  the  corporation.  The 
bonded  indebtedness  of  a  corporation  may  be  created  or  increased  by 
a  vote  of  the  stockholders  representing  at  least  two  thirds  of  the  entire 
capital  stock  at  a  meeting  called  by  the  board  of  directors,  and  after 
notice  of  the  time  and  place  of  the  meeting,  published  in  the  same 
manner  and  for  the  time  above  prescribed,  which  notice  shall  state 
the  amount  of  the  bonded  indebtedness  which  it  is  proposed  to  create, 
or  the  amount  to  w^hieh  it  is  proposed  to  increase  such  indebtedness, 
and  shall  in  all  other  respects  contain  the  same  matters  as  are  above 
provided  and  set  forth  in  the  notice  of  a  meeting  to  increase  or  dimin- 
ish the  capital  stock.  In  addition  to  the  notice  by  publication,  the 
secretary  of  the  corporation  shall  also  address  a  notice  to  each  of  the 
stockholders  at  his  place  of  residence,  if  known,  and  if  not  known 
then  at  the  place  of  business  of  the  corporation,  which  notice  shall 
be  mailed  to  the  stockholders  at  least  sixty  days  before  the  day  ap- 
pointed for  such  meeting;  and  upon  such  increase  or  diminution  of  the 
capital  stock  or  creation  or  increase  of  bonded  indebtedness  being  made 
as  herein  provided,  a  certificate  must  be  signed  by  the  chairman  and 
secretary  of  the  meeting  and  a  majority  of  the  directors,  showing  a 
compliance  with  the  requirements  of  this  section,  the  amount  to  which 
the  capital  stock  has  been  increased  or  diminished,  or  the  amount  of 
the  bonded  indebtedness  created,  or  to  which  the  bonded  indebtedness 


145  GENERAL  POWERS  OF  CORPORATIONS.  §  359 

may  have  been  increased,  tlie  amount  of  stock  represented  at  the  meet- 
ing, and  the  whole  vote  by  which  the  object  was  accomplished.  The 
certificate  must  be  filed  in  the  office  of  the  clerk  of  the  county  where 
the  original  articles  of  incorporation  are  filed,  and  a  certified  copy 
thereof  in  the  oflice  of  the  secretary  of  state;  and  thereupon  the 
capital  stock  shall  be  so  increased  or  diminished,  or  the  bonded  indebt- 
edness may  be  created  or  increased  accordingly.  When  the  by-laws 
of  the  corporation  prescribe  the  paper  in  which  notice  of  meetings  are 
to  be  published,  the  notices  herein  provided  for  shall  be  published  in 
such  paper  unless  publication  thereof  shall  have  ceased." 

6.  Amended  by  Stats.  1893,  p.  191,  to  read:  "No  corporation  shall 
issue  stock  or  bonds  except  for  money  paid,  labor  done,  or  property 
actually  received,  and  all  fictitious  increase  of  stock  or  indebtedness 
is  void.  Every  corporation  may  increase  or  diminish  its  capital  stock, 
create  or  increase  its  bonded  indebtedness,  subject  to  the  following 
provisions:  First.  The  capital  stock  of  a  corporation  may  be  increased 
or  diminished  at  a  meeting  of  the  stockholders  by  a  vote  representing 
at  least  two  thirds  of  the  subscribed  capital  stock;  such  meeting  must 
be  called  by  the  board  of  directors,  and  notice  must  be  given  by  pub- 
lication in  a  newspaper  published  in  the  county  where  the  principal 
place  of  business  of  such  corporation  is  located,  or  if  there  be  none 
published  in  said  county,  then  in  a  newspaper  published  in  an  adjoin- 
ing county,  such  paper  to  be  designated  by  the  board  of  directors  in 
the  order  calling  the  meeting.  Second.  The  notice  must  specify  the 
object  of  the  meeting,  and  the  amount  to  which  it  is  proposed  to  in- 
crease or  diminish  the  capital  stock,  the  time  and  place  of  holding 
the  meeting,  which  latter  must  be  at  the  principal  place  of  business 
of  the  corporation,  and  at  the  building  where  the  board  of  directors 
usually  meet.  The  notice  herein  provided  must  be  published  once 
a  week  for  at  least  sixty  days.  The  capital  stock  cannot  be  diminished 
to  an  amount  less  than  the  indebtedness  of  the  corporation.  Third. 
The  bonded  indebtedness  of  a  corporation  may  be  created  or  increased 
by  a  vote  of  the  stockholders  representing  at  least  two  thirds  of  the 
subscribed  capital  stock  at  a  meeting  called  by  the  board  of  directors, 
and  after  notice  of  the  time  and  place  of  the  meeting,  published  in 
the  same  manner  and  for  the  time  above  prescribed,  which  notice 
shall  state  the  amount  of  the  bonded  indebtedness  which  it  is  proposed 
to  create,  or  the  amount  to  which  it  is  proposed  to  increase  such  in- 
debtedness, and  shall  in  all  other  respects  contain  the  same  matters 
as  are  above  provided  and  set  forth  in  the  notice  of  a  meeting  to 
increase  or  diminish  the  capital  stock.  Fourth.  In  addition  to  the 
notice  by  publication,  the  secretary  of  the  corporation  shall  also  ad- 
dress a  notice  to  each  of  the  stockholders  whose  name  appears  on  the 
company's  books  as  sufficiently  addressed,  at  his  place  of  residence 
if  known,  and  if  not  known,  then  at  the  principal  place  of  business 
of  the  corporation,  which  notice  shall  be  mailed  to  such  stockholders 
at  least  thirty  days  before  the  day  appointed  for  such  meeting.  And 
upon  such  increase  or  diminution  of  the  capital  stock  or  creation  or 
increase  of  bonded  indebtedness  being  made  as  herein  provided,  a 
certificate  must  be  signed  by  the  chairman  and  secretary  of  the  meet- 
ing and  a  majority  of  the  directors,  showing  a  compliance  with  the 
requirements  of  this  section,  the  amount  to  which  the  capital  stock 
has  been  increased  or  diminished,  or  the  amount  of  the  bonded  indebt- 
edness created  or  to  which  the  bonded  indebtedness  may  have  been 
increased,  and  the  amount  of  stock  represented  at  the  meeting,  and 
the  whole  vote  by  which  the  object  was  accomplished.  The  certificate 
must  be  filed  in  the  office  of  the  clerk  of  the  county  where  the  original 
Civ.  Code — 10 


§  361  CIVIL  CODE.  146 

articles  of  iBCorporation  are  filed,  and  a  certified  copy  thereof  iu  the 
office  of  the  secretary  of  state;  and  thereupon  the  capital  stock  shall 
be  so  increased  or  diminished,  or  the  bonded  indebtedness  may  be 
created  or  increased  accordingly.  When  the  by-laws  of  the  corpora- 
tion prescribe  the  paper  in  which  notices  of  meeting  are  to  be  pub- 
lished, the  notices  herein  provided  for  shall  be  published  in  such  paper 
unless  publication  thereof  shall  have  ceased." 

7.  Amended  by  Stats.  1903,  p.  347,  and  differed  from  the  amend- 
ment of  1907,  in  that  in  subd.  First,  (1)  the  word  "the,"  before  "cor- 
poration is  located,"  was  printed  "such,"  and  this  subdivision  did  not 
contain  the  proviso,  which  was  added  in  1907. 

8.  Amended  by  Stats.  1907,  p.  349,  the  code  commissioner  saying  of 
the  addition  of  the  proviso  in  subdivision  First,  "to  cover  cases  of 
corporations  issuing  preferred  and  common  stock." 

§  360.  Corporations  may  acquire  real  property,  and  how 
much.  No  corporation  shall  acquire  or  hold  any  more  real 
property  than  may  be  reasonably  necessary  for  the  transaction 
of  its  business,  or  the  construction  of  its  works,  except  as  other- 
wise specially  provided.  A  corporation  may  acquire  real  prop- 
erty, as  provided  in  title  seven,  part  three,  of  the  Code  of  Civil 
Procedure,  when  needed  for  any  of  the  uses  and  purposes 
mentioned  in  said  title.  By  a  unanimous  vote  of  all  the 
directors  at  any  regular  meeting,  any  corporation  existing,  or 
hereafter  to  be  formed  under  the  laws  of  this  state,  may  ac- 
quire and  hold  the  land  and  building  on  and  in  which  its  busi- 
ness is  carried  on,  and  may  improve  the  same  to  any  extent 
required  for  the  convenient  transaction  of  its  business. 
[Amendment  approved  1905;  Stats.  1905.  p.  774.] 

Power  of  insurance  corporations  to  acquire  land:  See  post,  §  415. 
Power  of  railroad  corporation  to  acquire  land:  See  post,  §  465. 
Legislation  §  360.  1.  Enacted  March  21,  1872,  and  then  read:  "No 
corporation  shall  acquire  or  hold  any  more  real  estate  than  may  be 
absolutely  necessary  for  the  use  of  the  business  conducted  or  the  con- 
struction of  their  works,  except  as  specially  provided.  A  corporation 
organized  for  any  purpose  specified  iu  subdivisions  3,  4,  5,  7,  8,  and 
15,  of  section  286,  may  acquire  real  property  as  provided  in  title  VII, 
part  III,  Code  of  Civil  Procedure,  when  needed  for  the  uses  and  pur- 
poses therein  mentioned." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  208,  and  then  contained 
only' the  first  two  sentences,  the  second  of  which  did  not  have  the 
words  "of  the"  before  "Code  of  Civil  Procedure." 

3.  Amendment  by  Stats.  1901,  p.  351;  unconstitutional.  See  note 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  774,  adding  (1)  "of  the"  before  "Code 
of  Civil  Procedure"  in  second  sentence,  and  (2)  the  final  sentence;  the 
code  commissioner  saying,  "§  363,  approved  March  5,  1899,  is  added 
to  §  360,  to  the  end  that  there  shall  no  longer  be  two  sections  num- 
bered 363." 

§  361.     Changing-  number  of  directors  of  corporation.     Any 

corporation  or  association  may  increase  or  diminish  the  num- 
ber of  its  directors  or  trustees  by  the  vote  or  written  assent 


361.  Changing  Number  of  Directors  of  CorporationT*^^HI^ 
corporation  or  association  may  increase  or  diminish  the  number 
of  its  directors  or  trustees  by  the  vote  or  written  assent  of 
stockholders  representing  a  majority  of  its  subscribed,  capital 
stock,  or,  if  it  ha?  no  capital  stock,  by  the  vote  or  written 
assent  of  a  majority  of  the  members.  A  certificate  over  the  cor- 
porate seal,  setting-  forth  the  action  taken  by  the  stockholders, 
or  members,  and  stating  the  new  number  of  directors,  shall  be 
signed  by  the  president  and  secretary  of  such  corporation  or 
association,  and  filed  in  the  [office  of]  the  secretary  of  state 
whereupon  the  number  of  directors  or  trustees  shall  be  changed 
as  stated  in  said  certificate.  [The  secretary  of  state  shall  forth- 
with issue  a  certified  copy  of  said  certificate  and  transmit  said 
copy  to  the  county  clerk  of  the  county  in  which  the  principal 
place  of  business  of  the  corporation  was  situated  at  the  time  said 
corporation  was  incorporated  which  copy  shall  be  filed  by  said 
county  clerk  upon  payment  of  the  fee  prescribed  by  law.  A  copy 
of  such  certificate,  certified  by  the  secretary  of  state,  shall  be 
filed  by  such  corporation  in  the  office  of  the  county  clerk  of  every 
county  In  which  said  corporation  has  or  holds  real  property. 
Any  corporation  which  shall  fail  to  comply  with  the  requirements 
of  the  preceding  sentence  shall  be  subject  to  the  penalties  and 
liabilities  provided  In  section  two  hundred  ninety-nine  for  a  fail- 
ure of  corporations  to  file  copies  of  their  articles  of  Incorpora- 
tion with  the  county  clerks  of  the  counties  in  which  they  shall 
purchase,  hold  or  locate  real  property.]  This  section  shall  apply 
to  all  corporations  existing  under  the  laws  of  the  State  of  Cali- 
fornia, whether  organized  and  incorporated  prior  to  the  enact- 
ment of  this  code,  or  subsequent  thereto.  (In  effect  90  days 
from    and    after    April    29,    1921.      Stats.    1921,    Chap.    130.) 

Civ.  Code,  1921 


\ 


361.     Changing     Number     of     Directors     of     Corporation.     Any 

corporation  or  association  may  increase  or  diniinisli  tJie  numbei' 
of  Its  directors  or  trustees  by  the  vote  or  written  assent  of  stock- 
holders representing'  a  majority  of  its  subscribed  capital  stock, 
or,  if  It  has  no  capital  stock,  by  the  vote  or  written  assent  of  a 
majority  of  the  members.  A  certificate  over  the  corporate  seal, 
setting-  forth  the  action  taken  by  the  stockholders,  or  members, 
and  stating  the  new  number  of  directors,  shall  be  signed  by  the 
president  and  secretary  of  such  corporation  or  association,  and 
filed  in  the  office  of  the  county  clerk  of  the  county  where  its 
original  articles  of  incorporation  were  filed,  and  a  copy  of  said 
certificate,  certified  by  such  county  clerk,  shall  be  filed  in  the 
office  of  the  secretary  of  state,  whereupon  the  number  of  directoi-s 
or  trustees  shall  be  changed  as  stated  in  said  certificate.  [This 
section  shall  apply  to  all  corporations  existing  under  the  laws  of 
the  State  of  California,  whether  organized  and  incorporated  prior 
to  the  enactment  of  this  code,  or  subsequent  thereto.]  (In  effect 
90  days   from  and  after  April   27,    1917.     Stats.    1917,   Chap.   210.) 

Civ.   Code,   1917. 


147  GENERAL  POWERS  OF  CORPORATIONS.  §  362 

of  stockholders  representing  a  majority  of  its  subscribed 
capital  stock,  or,  if  it  has  no  capital  stock,  by  the  vote  or 
written  assent  of  a  majority  of  the  members.  A  certificate 
over  the  corporate  seal,  setting  forth  the  action  taken  by  the 
stockholders,  or  members,  and  stating  the  new  number  of  di- 
rectors, shall  be  signed  by  the  president  and  secretary  of  such 
corporation  or  association,  and  filed  in  the  office  of  the  county 
clerk  of  the  county  where  its  original  articles  of  incorporation 
were  filed,  and  a  copy  of  said  certificate,  certified  by  such 
county  clerk,  shall  be  filed  in  the  office  of  the  secretary  of 
state,  whereupon  the  number  of  directors  or  trustees  shall  be 
changed  as  stated  in  said  certificate. 

Legislation  §  361.     Added  by  Stats.  1915,  p.   1456.     There  was  an 

earlier  section   361.     The   history  of  it  is:   1.  Added  by  Code  Amdts. 

1875-76,  p.  75. 

2.  Eepeal  by  Stats.  1901,  p.  351;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  775;  the  code  commissioner  saying, 
"Eepealed,  and  the  matter  therein  added  to  §  587a."  It  related  to  the 
consolidation  of  mining  corporations  owning  adjoining  claims. 

§  361a.  Transfer  of  franchise  of  corporation  not  valid  with- 
out consent  of  stockholders.  No  sale,  lease,  assignment,  trans- 
fer or  conveyance  of  the  business,  franchise  and  property,  as  a 
whole,  of  any  corporation  now  existing,  or  hereafter  to  be 
formed  in  this  state,  shall  be  valid  without  the  consent  of 
stockholders  thereof,  holding  of  record  at  least  two  thirds  of 
the  issued  capital  stock  of  such  corporation ;  such  consent  to  be 
either  expressed  in  writing,  executed  and  acknowledged  by 
such  stockholders,  and  attached  to  such  sale,  lease,  assignment, 
transfer  or  conveyance,  or  by  vote  at  a  stockholders'  meeting 
of  such  corporation  called  for  that  purpose ;  but  with  such  as- 
sent, so  expressed,  such  sale,  lease,  assignment,  transfer  or 
conveyance  shall  be  valid;  provided,  however,  that  nothing 
herein  contained  shall  be  construed  to  limit  the  power  of  the 
directors  of  such  corporation  to  make  sales,  leases,  assign- 
ments, transfers  or  conveyances  of  corporate  property  other 
than  those  hereinabove  set  forth. 

Legislation  §  361a.     Added  by  Stats.  1903,  p.  396. 

§  362.  Amendment  of  articles  of  incorporation.  Majority 
vote  of  directors.  Amended  articles  filed.  Changes  not  per- 
mitted. Any  corporation  organized  under  the  laws  of  this 
state  may  amend  its  articles  of  incorporation  for  any  or  all 
of  the  following  purposes: 

(1)  To  set  forth  a  new  name.    ^ 

(2)  To  alter  or  repeal  any  provision  appearing  in  its  orig- 
inal or  amended  articles  of  incorporation  relative  to  the  pur- 


§  362  CIVIL  CODE.  148 

poses  for  wliieli  the  corporation  is  formed,  or  to  set  forth, 
additional  powers  or  pnrposes. 

(3)  To  designate  a  principal  place  of  business  other  than 
the  place  designated  in  its  original  or  amended  articles  of 
incorporation. 

(4)  To  state  the  date  to  which  its  existence  has  been  ex- 
tended. 

'     (5)  To  state  the  number  of  its  directors,  as  increased  or 
diminished. 

(6)  To  state  the  amount  of  its  capital  stock  as  increased  or 
diminished  and  the  number  of  shares  and  the  par  value 
thereof,  or  to  change  the  number  of  shares  and  their  par 
value  or  to  provide  for  the  classification  of  its  capital  stock 
into  preferred  and  common  shares,  in  which  event  there  must 
be  set  forth  a  statement  of  the  number  of  shares  of  stock  to 
which  preference  is  granted  and  the  number  of  shares  of 
stock  to  which  no  preference  is  granted,  also  a  clear  and  suc- 
cinct statement  of  the  nature  and  extent  of  the  preference 
granted,  and  except  as  to  the  matters  and  things  so  stated, 
no  distinction  shall  exist  between  said  classes  of  stock  or  the 
owners  thereof;  provided,  however,  that  no  preference  shall 
be  granted  nor  shall  any  distinction  be  made  between  the 
classes  of  stock  either  as  to  voting  power  or  as  to  the  statutory 
or  constitutional  liability  of  the  holders  thereof  to  the  cred- 
itors of  the  corporation ;  and  provided,  further,  that  both  the 
preferred  and  common  shares  shall  be  of  the  same  par  value. 

(7)  To  change  the  statement  appearing  in  its  original  or 
amended  articles  of  incorporation  of  the  nature  and  extent 
of  such  preference,  subject  to  the  above  limitations. 

(8)  And  generally  to  provide  for  any  other  amendment  not 
contrary  to  law.  The  articles  of  incorporation  may  be 
amended  as  aforesaid  by  a  majority  vote  of  the  board  of 
directors  of  the  corporation  and  by  the  vote  or  written  assent 
of  the  holders  of  at  least  two-thirds  of  the  subscribed  capital 
stock  of  such  corporation,  or  if  the  corporation  has  no  capital 
stock  then  by  a  majority  vote  of  its  board  of  directors  and  by 
the  vote  or  written  assent  of  a  majority  of  the  members. 
Upon  the  adoption  of  amended  articles  of  incorporation,  a 
copy  of  the  articles  as  thus  amended  shall  be  certified  to  as 
correct  by  the  president  and  secretary  and  a  majority  of  the 
directors  of  the  corporation  and  the  corporate  seal .  of  such 
corporation  shall  be  affixed  to  the  certificate.  Such  certificate 
shall  also  set  forth  the  proceedings  by  virtue  of  which  the 
amended  articles  were  adopted,  Avhich  proceedings  must  be 
in  accordance  with  the  provisions  of  this  section  above  set 
forth.  The  copy  of  amended  articles  of  incorporation,  thus 
certified,  shall  be  filed  in  the  office  of  the  county  clerk  of  the 


by  virtue  of  which  the  amended  articles  were  adopted,  which 
proceedings  must  be  in  accordance  with  the  provisions  of  this 
section  above  set  forth.  The  copy  of  amended  articles  of  incor- 
poration thus  certified,  shall  be  filed  in  the  office  of  [the  secre- 
tary] of  state,  whereupon  such  corporation  shall  have  the  same 
powers  and  the  stockholders  thereof  shall  thereafter  be  subject 
to  the  same  liabilities  as  if  such  amendment  had  been  embraced 
in  the  original  articles  of  incorporation.  [The  secretary  of  state 
shall  forthwith  Issue  a  certified  copy  of  said  amended  articles  of 
Incorporation  and  transmit  said  copy  to  the  county  clerk  of  the 
county  in  which  the  principal  place  of  business  of  the  corpora- 
tion was  situated  at  the  time  said  corporation  was  Incorporated, 
which  copy  shall  be  filed  by  said  county  clerk  upon  payment  of 
the  fee  prescribed  by  law.]  A  copy  of  such  [amended  articles 
of  incorporation]  certified  by  the  secretary  of  state,  shall  be  filed 
In  the  office  of  the  county  clerk  of  every  [other]  county  in  which 
such  corporation  has  or  holds  real  property.  [  1  Any  cor- 
poration which  shall  amend  its  articles  of  incorporation  and  shall 
fail  to  file  copies  of  its  amended  articles,  as  required  by  the 
preceding  sentence,  shall  be  subject  to  the  penalties  and  liabil- 
ities provided  in  section  two  hundred  ninety-nine  for  a  failure 
of  corporations  to  file  copies  of  their  articles  of  incorporation  in 
the  office  of  the  county  clerks  of  the  counties  in  which  they  shall 
purchase,  hold,  or  locate  property.  Nothing  contained  in  this 
section  must  be  construed  to  cure  or  amend  any  defect  existing 
in  the  original  articles  of  incorporation,  where  such  defect  is  of 
such  character  as  to  render  such  original  articles  invalid.  And 
it  is  hereby  expressly  provided  that  no  corporation  shall  amend 
its  articles  of  incorporation  to  alter  the  statements  which  appear 
in  the  original  articles,  of  the  names  and  residences  of  the  first 
directors  or  the  statements  which  appear  in  such  originals,  of 
the  amount  of  capital  stock  subscribed  and  by  whom.  Nothing 
appearing  herein  shall  be  construed  as  permitting  a  corporation 
to  change  its  name  or  its  principal  place  of  business,  extend  or 
reduce  its  term  of  existence,  or  increase  or  diminish  its  nvimber 
of  directors  or  its  capital  stock,  by  amending  its  articles  of 
incorporation.  (In  effect  90  days  from  and  after  April  29,  1921. 
Stats.    1921,   Chap    134.)  Civ.  Code,  1921. 


362.  Amendment  of  Articles  of  Incorporation;  Majority  Vote 
of    Directors.      Amended    Articles    Filed;    Changes    Not    Permitted. 

Any  corporation  organized  under  the  laws  of  this  state  may 
amend  its  articles  of  incorporation  for  any  or  all  of  the  follow- 
ing'  purposes: 

(1)  To      set    forth    a    new    name. 

(2)  To  alter  or  repeal  any  provision  appearing  in  its  original 
or  amended  articles  of  incorporation  relative  to  the  purposes  for 
which  the  corporation  is  formed,  or  to  set  forth,  additional 
powers    or    purposes. 

(3)  To  designate  a  principal  place  of  business  other  than  the 
place  designated  in  its  original  or  amended  articles  of  incor- 
poration. 

(4)  To  state  the  date  to  which  its  existence  has  been  extended. 

(5)  To  state  the  number  of  its  directors,  as  increased  or  dimin- 
ished. 

(6)  To  state  the  amount  of  its  capital  stock  as  increased  or 
diminished  and  the  number  of  shares  and  the  par  value  thereof, 
or  to  change  the  nuintaer  of  shares  and  their  par  value  or  to  pro- 
vide for  the  classification  of  its  capital  stock  into  preferred  and 
common  shares,  in  which  event  there  must  be  set  forth  a  state- 
ment of  the  number  of  shares  of  stock  to  which  preference  is 
granted  and  the  number  of  shares  of  stock  to  which  no  prefer- 
ence is  granted,  also  a  clear  and  succinct  statement  of  the 
nature  and  extent  of  the  preference  granted,  and  except  as  to 
the  matters  and  things  so  stated,  no  distinction  shall  exist 
between  said  classes  of  stock  or  the  owners  thereof;  provided, 
however,  that  no  preference  shall  be  granted  nor  shall  any  dis- 
tinction be  made  between  the  classes  of  stock  either  as  to  voting 
power  or  as  to  the  statutory  or  constitutional  -liability  of  the 
holders  thereof  to  the  creditors  of  the  corporation;  and  provided, 
further,  that  both  the  preferred  and  common  shares  shall  be  of 
the  saine  par  value. 

(7)  To  change  the  statement  appearing  in  its  original  amended 
articles  of  incorporation  of  the  nature  and  extent  of  such  prefer- 
ence,  subject   to   the  above   limitations. 

(8)  And  generally  to  provide  for  any  other  amendment  not 
contrary  to  law.  The  articles  of  incorporation  may  be  amended 
as  aforesaid,  by  a  majority  vote  of  the  board  of  directors  of  the 
coipoi'ation  and  by  the  vote  or  written  assent  of  the  holders 
of  at  least  two-thirds  of  the  subscribed  capital  stock  of  such 
corporation,  or  if  the  corporation  has  no  capital  stock  then  by  a 
majority  vote  of  its  board  of  directors  and  by  the  vote  or  writ- 
ten assent  of  a  majority  of  the  members.  Upon  the  adoption  of 
amended  articles  of  incorporation,  a  copy  of  the  articles  as  thus 
amended  shall  be  certified  to  as  correct  by  the  president  and 
secretary  and  a  majority  of  the  directors  of  the  corporation  and 
the  corporate  seal  of  such  corporation  shall  be  affixed  to  the 
certificate.      Such   certificate   shall   aiso    set    forth    the   proceedings 


149      •  GENERAL  POWERS  OF  CORPORATIONS.  §  362 

county  in  which  the  original  articles  of  incorporation  of  such 
corporation  Avere  filed,  and  a  copy  thereof,  certified  by  such 
county  clerk,  shall  be  filed  in  the  of^ce  of  the  secretary  of 
state,  whereupon  such  corporation  shall  have  the  same  powers, 
and  the  stockholders  thereof  shall  thereafter  be  subject  to  the 
same  liabilities,  as  if  such  amendment  had  been  embraced  in 
the  original  articles  of  incorporation.  A  copy  of  such  copy, 
certified  by  the  secretary  of  state,  shall  be  filed. in  the  office 
of  the  county  clerk  of  every  county  in  Avhich  such  corporation 
has  or  holds  real  property,  except  only  the  county  in  which 
the  original  articles  of  incorporation  were  filed.  Any  cor- 
poration which  shall  amend  its  articles  of  incorporation  and 
shall  fail  to  file  copies  of  its  amended  articles,  as  required  by 
the  preceding  sentence,  shall  be  subject  to  the  penalties  and 
liabilities  provided  in  section  two  hundred  and  ninety-nine 
for  a  failure  of  corporations  to  file  copies  of  their  articles  of 
incorporation  in  the  office  of  the  county  clerks  of  the  counties 
in  which  they  shall  purchase,  hold,  or  locate  property.  Noth- 
ing contained  in  this  section  must  be  construed  to  cure  or 
amend  any  defect  existing  in  the  original  articles  of  incor- 
poration, where  such  defect  is  of  such  character  as  to  render 
such  original  articles  invalid.  And  it  is  hereby  expressly 
provided  that  no  corporation  shall  amend  its  articles  of  incor- 
poration to  alter  the  statements  Avhich  appear  in  the  original 
articles,  of  the  names  and  residences  of  the  first  directors  or 
the  statements  which  appear  in  such  originals,  of  the  amount 
of  capital  stock  subscribed  and  by  whom.  Nothing  appearing 
herein  shall  be  construed  as  permitting  a  corporation  to 
change  its  name  or  its  principal  place  of  business,  extend  or 
reduce  its  term  of  existence,  or  increase  or  diminish  its  num- 
ber of  directors  or  its  capital  stock,  by  amending  its  articles 
of  incorporation.  [Amendment  approved  1915 ;  Stats.  1915, 
p.  1457.] 

iiegislation  §  362.  1.  Added  by  Stats.  1885,  p.  91,  and  then  read: 
"Any  corporation  may  amend  its  articles  of  association  or  certificate 
of  incorporation  by  a  majority  vote  of  its  board  of  directors  or  trus- 
tees, and  by  a  vote  or  written  assent  of  the  stockholders,  representing 
at  least  two  thirds  of  the  capital  stock  of  such  corporation;  and  a  copy 
of  the  said  articles  of  association  or  certificate  of  incorporation,  as 
thus  amended,  duly  certified  to  be  correct  by  the  president  and  secre- 
tary of  the  board  of  directors  or  trustees  of  such  incorporatiorr,  shall 
be  filed  in  the  office  or  offices  where  the  original  or  certificates  of  in- 
corfioration  are  required  by  this- code  to  be  filed;  and  from  the  time 
of  so  filing  such  <'opy  of  the  amended  articles  of  association  or  cer- 
tificate of  incorporation,  such  corporation  shall  have  the  same  powers, 
and  it  and  the  stockholders  thereof  shall  thereafter  be  subject  to  the 
same  liabilities  as  if  such  amendment  had  been  embraced  in  the  ori- 
ginal articles  or  certificate  of  incorporation;  provided,  that  the  time 
of  the  existence  of  such  corporation  shall  not  be  by  such  amendment 
extended  beyond  the  time  fixed   in  the  original  articles  or  certificate 


362  CIVIL  CODE.  •      150 

of  incorporation;  provided  further,  that  such-  original  and  amended 
articles  or  certificate  of  incorporation  shall  together  contain  all  the 
matters  and  things  required  under  which  the  original  articles  of  asso- 
ciation or  certificate  of  incorporation  were  executed  and  filed;  and, 
provided  further,  that  nothing  herein  contained  shall  be  construed  to 
cure  or  amend  any  defect  existing  in  any  original  certificate  of  incor- 
poration heretofore  filed,  by  reason  that  such  certificate  does  not  set 
forth  the  matters  required  to  make  the  same  valid  as  a  certificate 
of  incorporation  at  the  time  of  its  filing;  and  also  provided,  that  if 
the  assent  of  two  thirds  of  the  stockholders  to  such  amendment  has 
not  been  obtained,  that  a  notice  of  the  intention  to  make  the  amend- 
ment shall  first  be  advertised  for  thirty  (30)  days  in  some  newspaper 
published  iu  the  town  or  county,  or  city  and  county,  in  which  the 
principal  place  of  business  of  the  association  or  corporation  is  located, 
before  the  filing  of  the  proposed  amendment;  and,  provided,  also,  that 
nothing  in  this  section  shall  be  construed  to  authorize  any  corporation 
to  diminish  its  capital  stock." 

2.  Amended  by  Stats.  1893,  p.  131,  to  read:  "Any  corporation  may 
amend  its  articles  of  association  or  certificate  of  incorporation  by  a 
majority  vote  of  its  board  of  directors  or  trustees,  and  by  a  vote 
or  written  assent  of  the  stockholders  representing  at  least  two  thirds 
of  the  subscribed  capital  stock  of  such  corporation;  and  a  copy  of 
the  said  articles  of  association  or  certificate  of  incorporation,  as  thus 
amended,  duly  certified  to  be  correct  by  the  president  and  secretary 
of  the  board  of  directors  or  trustees  of  such  corporation,  shall  be 
filed  in  the  office  or  offices  where  the  original  or  certificate  of  incor- 
poration are  required  by  this  code  to  be  filed;  and  from  the  time 
of  so  filing  such  copy  of  the  amended  articles  of  association  or  cer- 
tificate of  incorporation,  such  corporation  shall  have  the  same  powers, 
and  it  and  the  stockholders  thereof  shall  thereafter  be  subject  to  the 
same  liabilities  as  if  such  amendment  had  been  embraced  in  the  ori- 
ginal articles  or  certificate  of  incorporation;  provided,  that  the  time 
of  the  existence  of  such  corporation  shall  not  be  by  such  amendment 
extended  beyond  the  time  fixed  in  the  original  articles  or  certificate 
of  incorporation;  provided  further,  that  such  original  and  amended 
articles  or  certificate  of  incorporation  shall  together  contain  all  the 
matters  and  things  required  under  which  the  original  articles  of  asso- 
ciation or  certificate  of  incorporation  were  executed  and  filed;  and 
provided  further,  that  nothing  herein  contained  shall  be  construed  to 
cure  or  amend  any  defect  existing  in  any  original  certificate  of  incor- 
poration heretofore  filed,  by  reason  that  svich  certificate  does  not  set 
forth  the  matters  required  to  make  the  same  valid  as  a  certificate  of 
incorporation  at  the  time  of  its  filing;  and  also  provided,  that  if  the 
assent  of  two  thirds  of  the  said  stockholders  to  such  amendment  has 
not  been  obtained,  that  a  notice  of  the  intention  to  make  the  amend- 
ment shall  first  be  advertised  for  thirty  (30)  days  in  some  newspaper 
published  in  the  town  or  county,  or  city  and  county,  in  which  the 
principal  place  of  business  of  the  association  or  corporation  is  located, 
before  the  filing  of  the  proposed  amendment;  and  provided  also,  that 
nothing  in  this  section  shall  be  construed  to  authorize  any  corporation 
to  diminish  its  capital  stock." 

3.  Amendment  by  Stats.  1901,  p.  351;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1903,  p.  411,  to  read:  "Any  corporation  may 
amend  its  articles  of  incorporation  by  a  majority  vote  of  its  board 
of  directors  or  trustees,  and  by  a  vote  or  written  assent  of  the  stock- 
holders representing  at  least  two  thirds  of  the  subscribed  capital  stock 
of  such  corporation;  and  a  copy  of  the  said  articles  of  incorporation, 


151  GENERAL  POWERS  OP  CORPORATIONS.  §  362 

as  thus  amended,  duly  certified  to  be  correct  by  the  president  and 
secretary  of  the  board  of  directors  or  trustees  of  such  corporation, 
shall  be  filed  in  each  office  where  the  original  articles  of  incorporation 
are,  or  any  copy  thereof  is,  required  by  this  code  to  be  filed;  and 
from  the  time  of  so  filing  such  copy  of  the  amended  articles  of  incor- 
poration, such  corporation  shall  have  the  same  powers,  and  it  and  the 
stockholders  thereof  shall  thereafter  be  subject  to  the  same  liabilities, 
as  if  such  amendment  had  been  embraced  in  the  original  articles  of 
incorporation;  provided,  that  the  time  of  the  existence  of  such  cor- 
poration shall  not  be  by  such  amendment  extended  beyond  the  time 
fixed  in  the  original  articles  of  incorporation;  provided  further,  that 
such  original  and  amended  articles  of  incorporation  shall  together  con- 
tain all  the  matters  and  things  required  by  the  laws  under  which  the 
original  articles  of  incorporation  were  executed  and  filed;  and,  also 
provided,  that  if  the  assent  of  two  thirds  of  the  said  stockholders  to 
such  amendment  has  not  been  obtained,  a  notice  of  the  intention  to 
make  the  amendment  shall  first  be  advertised  for  thirty  (30)  days  in 
some  newspaper  published  in  the  town,  city,  or  county,  or  city  and 
county,  in  which  the  principal  place  of  business  of  the  corporation 
is  located  before  the  filing  of  the  proposed  amendment;  and  provided 
also,  that  nothing  in  this  section  shall  be  construed  to  authorize  any 
corporation  to  diminish  its  capital  stock." 

5.  Amended  by  Stats.  1905,  p.  775,  to  read:  "Any  corporation  may 
amend  its  articles  of  incorporation  by  a  majority  vote  of  its  board 
of  directors  or  trustees,  and  by  a  vote  or  written  assent  of  the  stock- 
holders representing  at  least  two  thirds  of  the  subscribed  capital  stock 
of  such  corporation,  or  the  written  assent  of  the  majority  of  the  mem- 
bers if  there  is  no  capital  stock;  and  a  copy  of  the  said  articles  of 
incorporation,  as  thus  amended,  duly  certified  to  be  correct  by  the 
president  and  secretary  of  the  board  of  directors  or  trustees  of  such 
corporation,  shall  be  filed  in  the  office  where  the  original  articles  of 
incorporation  are  filed,  and  a  certified  copy  thereof,  duly  certified  by 
such  county  clerk,  in  the  office  of  the  secretary  of  state.  A  copy  of 
such  articles  of  incorporation,  so  amended,  duly  certified  by  the  secre- 
tary of  state,  must  be  filed  in  the  office  of  the  county  clerk  of  every 
county  in  which  such  corporation  has  or  holds  property,  except  only 
the  county  in  which  the  original  amended  articles  of  incorporation 
have  been  filed.  Any  corporation  which  shall  amend  its  articles  of 
incorporation  and  shall  fail  to  file  copies  of  its  amended  articles,  as 
required  by  the  preceding  sentence,  shall  be  subject  to  the  penalties 
and  liabilities  provided  in  section  two  hundred  and  ninety-nine  for  a 
failure  of  corporations  to  file  copies  of  their  articles  of  incorporation 
in  the  offices  of  the  county  clerks  of  the  counties  in  which  they  shall 
purchase,  hold,  or  locate  property,  and  from  the  time  of  so  filing  such 
copy  of  the  amended  articles  of  incorporation,  such  corporation  shall 
have  the  same  powers,  and  the  stockholders  thereof  shall  thereafter 
be  subject  to  the  same  liabilities,  as  if  such  amendment  had  been 
embraced  in  the  original  articles  of  incorporation.  Such  original  and 
amended  articles  of  incorporation  shall  together  contain  all  the  mat- 
ters and  things  required  by  tlie  laws  under  which  the  original  articles 
of  incorporation  were  executed  and  filed.  Nothing  contained  in  this 
section  must  be  construed  to  cure  or  amend  any  defect  existing  in 
the  original  articles  of  incorporation  heretofore  filed,  in  that  such 
articles  did  not  set  forth  the  matters  required  to  make  the  same  valid 
at  the  time  of  filing.  If  the  assent  of  two  thirds  of  said  stockholders, 
or  of  the  majority  of  members  where  there  is  no  capital  stock,  to  such 
amendment  has  not  been  obtained,  a  notice  of  the  intention  to  make 


§  363  CIVIL  CODE.  152 

such  amendment  must  first  be  advertised  for  thirty  days  in  some  news- 
paper published  in  the  town,  city,  county,  or  city  and  county  in  which 
the  principal  place  of  business  of  the  corporation  is  located,  before  the 
filing  of  the  proposed  amendment.  Nothing  in  this  section  shall  be 
construed  to  authorize  any  corporation  to  increase  or  diminish  its 
capital  stock,  change  its  name,  extend  its  corporate  existence,  or 
increase  or  diminish  the  number  of  its  directors,  without  complying 
with  th.e  special  provisions  of  this  code  applicable  thereto." 
6.  Amended  by  Stats.  1915,  p.  1457. 

§  363.     Corporations    may   own   their   lots    and   building's. 

[Eepealed  1905;  Stats.  1905,  p.  776.] 

There  was  another  §  363,  which  was  adopted  March  19,  1889.  See 
next  section. 

Corporation  may  own  land  and  buildings  on  and  in  which  business 
transacted:   See  ante,  §  360. 

Legislation  §  363.  1.  Added  bv  Stats.  1889,  p.  67;  approved  March 
5,  1889. 

2.  Repeal  by  Stats.  1901,  p.  3.52;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  776;  the  code  commissioner  saying, 
"There  were  formerly  two  sections  of  this  number.  §  363,  as  adopted 
March  5,  1S8'9,  is  repealed  and  its  provisions  amalgamated  with  §  360. 
This  leaves  in  force  the  other  §  363,  which  was  adopted  March  19, 
1889." 

§  363.  Correction  of  erroneous  filing  of  articles  of  incor- 
poration. When  articles  of  incorporation  have  been  prepared, 
subscribed,  and  executed  in  accordance  with  the  provisions  of 
sections  tv^^o  hundred  and  ninety  and  two  hundred  and  ninety- 
two  of  the  Civil  Code,  and  such  original  articles  filed  by  error 
or  inadvertence  with  the  clerk  of  a  county  other  than  that 
named  in  the  articles  of  incorporation  as  the  county  in  which 
the  principal  place  of  business  is  to  be  transacted,  and  the 
secretary  of  state  shall  have  issued  a  certificate  of  incorpora- 
tion based  on  a  certified  copy  of  such  original  articles  of  incor- 
poration, any  stockholder  or  director  of  such  corporation  may 
petition  the  superior  court  of  the  county  in  which  said  original 
articles  of  incorporation  were  filed  for  an  order  to  withdraw 
such  original  articles  of  incorporation,  and  file  in  place  thereof 
a  certified  copy  of  the  copy  thereof  on  file  in  the  office  of  the 
secretary  of  state.  Such  petition  must  be  verified,  and  must 
state  clearly  the  facts,  showing  that  such  articles  of  incorpora- 
tion were  filed  by  inadvertence  and  mistake;  and  notice  of  the 
hearing  of  said  petition  must  be  given  for  at  least  ten  days 
before  the  day  of  hearing,  by  publication  in  a  newspaper  pub- 
lished in  the  county  where  such  petition  is  filed.  Upon  the 
day  set  for  hearing  the  petition  the  superior  court  may  grant 
an  order  allowing  such  original  articles  of  incorporation  to  be 
withdrawn,  and  a  certified  copy  of  the  copy  in  the  office  of  the 
secretary  of  state  in  the  place  thereof  filed;  and  the  original 


153  GENERAL  POWERS  OP  CORPORATIONS.  §  365 

articles  of  incorporation  must  be  filed  within  ten  days  there- 
after in  the  county  in  which  the  principal  place  of  business  is 
to  be  transacted,  as  stated  in  such  articles  of  incorporation, 
and  a  certified  copy  of  the  order  allowing  such  action  must  be 
filed  with  the  certified  copy  in  the  office  of  the  secretary  of 
state,  after  which  said  corporation  shall  be  entitled  to  all  rights 
and  privileges  of  a  private  corporation,  and  the  title  to  any 
property  it  may  have  previously  acquired  shall  not  be  affected 
by  reason  of  the  failure  to  file  the  original  articles  of  incorpo- 
ration in  the  first  instance. 

There  was  another  §  363  adopted  in  1S89,  see  prior  section. 
Legislation  §  363.     Added  by  Stats.  1889,  p.  332;  approved  March  19, 
1889. 

§  364.  Corporations  may  transfer  foreign  concessions.  Any 
corporation  of  this  state  owning  grants,  concessions,  fran- 
chises, and  properties  or  any  thereof,  in  any  foreign  country, 
may  sell  and  convey  the  same  to  the  government '  of  such 
foreign  country,  or  to  any  person  or  persons,  or  any  corpora- 
tion or  corporations,  or  association  or  associations,  created  by 
or  existing  under  the  laws  of  this  or  any  other  state  or  the 
United  States,  or  any  foreign  government ;  provided,  however, 
that  the  powers  hereby  granted  shall  only  be  exercised  by  a 
majority  of  the  entire  board  of  directors  of  such  corporation  of 
this  state,  with  the  concurrence  in  writing  of  the  holders  of 
two  thirds  in  amount  of  the  capital  stock  thereof. 

Legislation  §  364.     Added  by  Stats.  1899,  p.  95;  became  a  law,  under 
constitutional  provision,  without  governor's  approval,  March  13,  1899. 

§  365.  Restoration  of  lost  records,  certificates  of  stock,  etc. 
"Whenever  it  shall  appear  that  the  minutes,  records,  seal, 
assessment-book,  stock- journal,  stock-ledger,  certificate-book, 
certificate  of  stock  or  bonds  or  other  papers  or  records  of  any 
corporation,  municipal,  quasi  or  otherwise,  in  this  state,  shall 
have  been  or  shall  hereafter  be  lost  or  destroyed  by  conflagra- 
tion or  other  public  calamity,  such  corporation,  by  a  vote  of 
its  board  of  directors,  or  any  stockholder  or  bondholder  of 
such  corporation,  may  petition  the  superior  court  of  the 
county,  or  city  and  county,  in  which  the  principal  place  of 
business  of  such  corporation  is  located,  to  restore  such  lost, 
destroyed,  or  injured  minutes,  records,  seal,  assessment-liook, 
stock- journal,  stock-ledger,  certificate-book,  certificate  of  stock 
or  bonds  or  other  papers  or  records.  Such  petition  shall  state 
the  loss,  destruction  or  injury  to  any  such  records  or  docu- 
ments or  certificates  of  stock  or  bonds,  or  other  papers  or 
records,  or  any  part  or  portion  thereof,  giving  the  cause  of 
such  loss,  injury  or  destruction.  On  the  filing  of  such  petition, 
duly  verified,  said  superior  court  shall  make  an  order,  fixing  a 


§  365  CIVIL  CODE.  154 

time  and  place  for  the  hearing  of  the  same,  and  directing  the 
clerk  of  the  court  to  give  notice  of  such  a  hearing  by  publica- 
tion of  a  notice  stating  the  time  and  place  of  the  hearing  of 
said  petition  and  the  purpose  thereof,  which  time  shall  not  be 
less  than  twenty-five  nor  more  than  thirty  days  from  the  com- 
pletion of  such  publication.  Notice  of  such  hearing  shall  be 
given  by  publication  in  some  newspaper  of  general  circulation, 
printed  and  published  in  such  county,  or  city  and  county, 
where  the  principal  place  of  business  of  said  corporation  is 
located,  and  if  there  be  no  such  newspaper  published  in  said 
county,  or  city  and  county,  then  in  some  adjoining  county,  to 
be  designated  by  the  court  or  judge  thereof,  which  publication 
shall  be  daily  (except  Sundays)  for  a  period  of  at  least  three 
successive  weeks.  In  case  there  is  no  daily  newspaper  pub- 
lished in  either  of  said  counties  then  such  notice  shall  be  pub- 
lished once  a  week  for  three  successive  weeks  in  a  weekly 
newspaper  published  in  such  county.  A  copy  of  said  notice 
shall  also  be  personally  served  upon  all  persons  affected 
thereby  residing  in  the  state  of  California,  whose  place  of  resi- 
dence or  place  of  business  is  known  to  the  corporation  or  any 
of  its  officers,  if  such  person  can  be  found  within  the  state, 
which  service  may  be  made  at  an-y  time  during  said  period  of 
publication.  If  the  place  of  business  or  place  of  residence  of 
any  persons  affected  by  said  petition  or  proceeding  is  un- 
known to  the  corporation  or  any  of  its  officers,  within  forty- 
eight  hours  after  the  filing  of  said  petition,  a  copy  of  said 
notice  shall  be  mailed  to  each  of  the  persons  affected  by  said 
petition  or  proceeding  whose  place  of  residence  or  place  of 
business  is  unknown  to  said  corporation  or  any  of  its  officers, 
addressed  to  them,  postage  prepaid,  at  the  county  seat  of  the 
county,  or  city  and  county,  where  the  place  of  business  of  said 
corporation  is  located.  In  addition  to  the  notice  by  publica- 
tion, the  petitioner  shall  address  a  copy  of  said  notice  to  each 
of  the  stockholders  of  said  corporation,  and  also  to  each  of  the 
persons  affected  by  said  petition,  whose  names  and  places  of 
residence  or  business  are  known  to  the  corporation  or  any  of 
its  officers,  at  his  place  of  business  or  residence,  postage  pre- 
paid, which  notice  shall  be  mailed  to  such  stockholders  or  per- 
sons within  forty-eight  hours  after  the  filing  of  said  petition. 
The  court  before  proceeding  to  hear  the  case,  shall  require 
proof  to  be  made  that  notice  has  been  published  and  given  as 
hereinbefore  required  and  service  of  such  notice  personally  if 
the  same  has  been  so  served  and  if  the  same  has  not  been  so 
served,  an  affidavit  of  the  petitioner  stating  the  reasons  why 
such  personal  service  has  not  been  made,  shall  also  be  then 
filed.     Upon   the   completion   of  said  publication,   said   court 


377.  Records  of  What,  and  How  Kept.  All  corporations  for 
profit  are  required  to  keep  a  record  of  all  their  business  trans- 
actions: a  journal  of  all  meetings  of  their  directors,  members,  or 
stockholders,  with  the  time  and  place  of  holding  the  same,  whether 
regular  or  special,  and  if  special,  its  oliject,  how  authorized,  and 
the  notice  thereof  given.  The  record  must  embrace  every  act 
done  or  ordered  to  be  done;  who  were  present,  and  who  were 
absent;  and,  if  requested  by  any  director,  member,  or  stockholder, 
the  time  shall  be  noted  when  he  entered  the  meeting  or  obtained 
leave  of  absence  therefrom.  On  a  similar  reque&t,  the  ayes  and 
noes  must  be  taken  on  any  proposition,  and  a  record  thereof  made. 
On  similar  request,  the  protest  of  any  director,  member,  or  stock- 
holder, to  any  action  or  proposed  action,  must  be  entered  in  full. 
[Such  records  shall  be  open  to  the  inspection  of  any  legislative 
committee,  board,  commission,  or  officer  of  the  State  of  California 
whose  duty  it  is  to  inspect  or  examine  the  same,  andl  of  r.ny 
director,  member,  or  [bona  fidel  stockholder  (thereof;  provided, 
however,  the  board  of  directors  may,  by  unanimous  vote,  deny 
such  examination  or  Inspection  to  a  stockholder  who  demands  the 
same  with  intent  ta  use  to  the  injury  of  the  corporation  the  in- 
format'on  to  be  acquired  thereby,  and  a  satisfactory  showing  of 
such  Intent  shall  be  a  complete  defense  to  any  action  or  pro- 
ceeding brought  by  any  such  person  to-  compel  the  officers  of  any 
such  corporation  to  submit  any  of  such  records  for  his  Inspection 
or  examination.]  (In  effect  90  days  from  and  after  April  27,  V.m. 
Stats.   1K17,  Chap.  730.)  Civ.  Code,  1917. 


155  RECORDS  OF  CORPORATIONS.  §  377 

shall  have  jurisdiction  to  inquire  into  and  determine  the  loss, 
injury  or  destruction  of  such  minutes,  records,  seal,  assess- 
ment-book, stock-journal,  stock-ledger,  certificate-book,  certifi- 
cates of  stock  or  bonds,  or  other  papers  and  documents,  and 
to  fix  and  determine  by  its  judgment  or  decree,  the  ownership 
of  said  certificates  of  stock  or  bonds  and  the  persons  entitled 
thereto,  and  to  direct  such  corporation  to  restore  its  records, 
seal,  assessment-book,  stock- journal,  stock-ledger,  certificate- 
book,  certificates  of  stock  or  bonds  or  any  other  paper  or 
record  so  lost,  injured  or  destroyed,  and  to  issue  new  bonds  or 
certificates  of  stock  or  other  paper  or  document  to  any  per- 
son or  persons  to  whom  the  same. may  belong  or  who  may  be 
entitled  thereto,  as  determined  by  the  judgment  of  the  court. 
Any  stock,  bond  or  other  paper,  the  ownership  of  which  can- 
not be  determined,  shall  be  found  by  the  court,  by  its  judg- 
ment, to  belong  to  unknown  owners,  and  in  all  proceedings  of 
such  corporation,  including  proceedings  for  assessment  of 
stock,  and  the  collection  of  such  assessment,  and  the  payment 
of  dividends,  and  notice  of  sale  and  sale  for  delinquent  assess- 
ments, said  stock  or  dividends  shall  be  so  designated  as  belong- 
ing to  unknown  owners,  without  giving  the  name  of  the  owner 
thereof  or  the  number  of  the  certificate  or  series  or  issue. 
Legislation  §  365.     Added  by  Stats.  Extra  Session,  1906,  p.  84. 

ARTICLE  II. 

Becords. 

§  377.     Records,  of  what,  and  how  kept. 

§  378.     Other  records  to  be  kept  by  corporations  for  profit,  and  others. 

§  377.  Records,  of  w^hat,  and  how  kept.  All  corporations 
for  profit  are  required  to  keep  a  record  of  all  their  business 
transactions;  a  journal  of  all  meetings  of  their  directors,  mem- 
bers, or  stockholders,  with  the  time  and  place  of  holding  the 
same,  whether  regular  or  special,  and  if  special,  its  object, 
how  authorized,  and  the  notice  thereof  given.  The  record 
must  embrace  every  act  done  or  ordered  to  be  done ;  who  were 
present,  and  who  absent ;  and,  if  requested  by  any  director, 
member,  or  stockholder,  the  time  shall  be  noted  when  he 
entered  the  meeting  or  obtained  leave  of  absence  therefrom. 
On  a  similar  request,  the  ayes  and  noes  must  be  taken  on  any 
proposition,  and  a  record  thereof  made.  On  similar  request, 
the  protest  of  any  director,  member,  or  stockholder,  to  any 
action  or  proposed  action,  must  be  entered  in  full — all  such 
records  to  be  open  to  the  inspection  of  any  director,  member, 
stockholder,  or  creditor  of  the  corporation. 

Refusal  to  permit  inspection:  See  Pen.  Code,  §  565. 


§  383  CIVIL  CODE.  156 

Legislation  §  377,     Enacted   March   21,   1872;    based   on   Stats.    1861, 
p.  607,  §  11;  Stats.  1853,  p.  169,  §  22;  Stats.  1853,  p.  90,  §  18. 

§  378.  Other  records  to  be  kept  by  corporations  for  profit, 
and  others.  In  addition  to  the  records  required  to  be  kept  by 
the  preceding  section,  corporations  for  profit  must  keep  a  book, 
to  be  known  as  the  ''Stock  and  Transfer  Book,"  in  which  must 
be  kept  a  record  of  all  stock ;  the  names  of  the  stockholders  or 
members,  alphabetically  arranged;  installments  paid  or  un- 
paid; assessments  levied  and  paid  or  unpaid;  a  statement  of 
every  alienation,  sale,  or  transfer  of  stock  made,  the  date 
thereof,  and  by  and  to  whom;  and  all  such  other  records  as 
the  by-laws  prescribe.  Corporations  for  religious  and  benevo- 
lent purposes  must  provide  in  their  by-laws  for  such  records 
to  be  kept  as  may  be  necessary.  Such  stock  and  transfer  book 
must  be  kept  open  to  the  inspection  of  any  stockholder,  mem- 
ber, or  creditor. 

Legislation  §  378.     Enacted   March   21.   1872;    based   on   Stats.   1861, 
p.  607,  §  11;  Stats.  1853,  p.  169,  §  22. 

,  AETICLE  III. 

Examination  of  Corporations,  etc. 

§  382.     Examination  into  affairs  of  corporation,  how  made  by  officers  of 

state. 
§  383.     Examination  made  by  the  legislature. 
§  384.     Chapter  and  article  may  be  repealed.     [Eepealed.] 

§  382.  Examination  into  affairs  of  corporation,  how  made 
by  officers  of  state.  The  attorney-general  or  district  attor- 
ney, whenever  and  as  often  as  required  by  the  governor,  must 
examine  into  the  affairs  and  condition  of  any  corporation  in 
this  state,  and  report  such  examination,  in  writing,  together 
with  a  detailed  statement  of  facts,  to  the  governor,  who  must 
lay  the  same  before  the  legislature ;  .and  for  that  purpose  the 
attorney-general  or  district  attorney  may  administer  all  neces- 
sary oaths  to  the  directors  and  officers  of  any  corporation,  and 
may  examine  them  on  oath  in  relation  to  the  affairs  and  condi- 
tion thereof,  and  may  examine  the  books,  papers,  and  docu- 
ments belonging  to  such  corporation,  or  appertaining  to  its 
affairs  and  condition. 

Permitting  inspection  of  books:  See  Pen.  Code,  §  565. 

Proceedings  against  corporation  unlawfully  exercising  franchise:  See 

Code  Civ.  Proc,  §  803. 

Legislation  §  382.     Enacted   March    21,    1872;    based   on   Stats.    1850, 
p.  350,  §  29. 

§  383.  Examination  made  by  the  legislature.  The  legisla- 
ture, or  either  branch  thereof,  may  examine  into  the  affairs 
and  condition  of  any  corporation  in  this  state  at  all  times; 


378.  Other  Records  to  Be  Kept  by  Corporations  for  Profit  and 
Others.  In  addicion  to  the  records  required  to  be  kept  by  the 
preceding  section,  corporations  for  profit  must  keep  a  book,  to  be 
known  as  the  "stock  and  transfer  book,"  in  which  must  be  kept 
a  record  of  all  stock;  the  names  of  the  stockholders  or  members, 
alphabetically  arranged;'  installments  paid  or  unpaid;  assessments 
levied  and  paid  or  unpaid:  a  statement  of  every  alienation,  sale, 
or  transfer  of  sitock  made,  the  date  thereof,  and  by  and  to  whom; 
and  all  such  other  records  as  the  b"y-laws  prescribe.  Corpora- 
tions for  religious  and  benevolent  purposes  must  provide  in  their 
by-laws  for  such  records  to  be  kept  as  may  be  necessary.  Such 
stock  and  transfer  books  [shall]  be  open  to  the  inspection  of  any 
[officer,  bona  fide]  stockholder,  member,  or  creditor  [of  the  cor- 
poration.] (In  effect  90  days  from  and  after  April  27.  1917.  Stats. 
1917,  Chap.  730.)  Civ.  Code,  1917. 


157  EXAMINATION   OF    CORPORATIONS.  §  384 

and,  for  that  purpose,  any  committee  appointed  by  the  legisla- 
ture, or  either  branch  thereof,  may  administer  all  necessary 
oaths  to  the  directors,  officers,  and  stockholders  of  such  cor- 
poration, and  may  examine  them  on  oath  in  relation  to  the 
affairs  and  condition  thereof;  and  may  examine  the  safes, 
books,  papers,  and  documents  belonging  to  such  corporation, 
or  pertaining  to  its  affairs  and  condition,  and  compel  the  pro- 
duction of  all  keys,  books,  papers,  and  documents  by  sum- 
mary process,  to  be  issued  on  application  to  any  court  of 
record  or  any  judge  thereof,  under  such  rules  and  regulations 
as  the  court  may  prescribe. 

Permitting  inspection  of  Ijooks:  See  Pen.  Code,  §  565. 
Legislation  §  383.     Enacted   March   21,   1872;    based   on   Stats.    1850, 
p.  350,  §  29. 

§  384.     Chapter  and  article  may  be  repealed.     [Repealed 
1907;  Stats.  1907,  p.  578.] 

Legislation  §  384.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  347,  §  30;  Const.  1849,  art.  iv,  §  31. 

2.  Eepeai  by  Stats.  1901,  p.  352;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Repealed  by  Stats.  1907,  p.  578,  the  repealing  act  reading,  "Section 
1.  Section  three  hundred  and  eighty-four  of  the  Civil  Code  is  hereby 
repealed;  provided  however,  that  this  shall  not  be  deemed  to  repeal 
or  otherwise  affect  section  four  hundred  and  four  of  said  code;  and 
provided  further  that  no  rights  acquired  under  the  provisions  of  said 
section  three  hundred  and  eighty-four  shall  be  affected  hereby,  but  the 
same  shall  be  continued  in  force  under  the  provisions  of  said  section 
four  hundred  and  four";  the  code  commissioner  saying,  "As  a  result 
of  the  oversight  in  not  repealing  §  384  at  the  time  §  404  was  added  in 
1905,  there  were  two  sections  in  the  Civil  Code  containing  identical 
language,  one  being  384,  and  the  other  404;  384  was  not  in  the  proper 
place,  and  404  was.  §  384  was  therefore  repealed  in  1907,  leaving 
§  404  intact,  and  a  proviso  was  added  in  the  repealing  act  so  that 
any  rights  acquired  under  384  phould  not  be  lost,  but  continued  in  force 
under  the  provisions  of  §  404." 

Note.  The  constitution  of  California  in  force  when  this  code  was 
adopted  contained  the  following  section  (art.  iv,  §31):  "Corporations 
may  be  formed  under  general  laws,  but  shall  not  be  created  by  special 
act,  except  for  municipal  purposes.  All  generjil  laws  and  special  acts 
passed  pursuant  to  this  section  may  be  altered  from  time  to  time,  or 
repealed."  The  constitution  of  1879  (art.  xii,  §  1),  preserves  this  sec- 
tion in  the  following  language:  "Corporations  may  be  formed  under, 
general  laws,  but  shall  not  be  created  by  special  act.  All  laws  now 
in  force  in  this  state  concerning  corporations,  and  all  laws  that  may 
be  hereafter  passed  pursuant  to  this  section,  may  be  altered  from 
time  to  time  or  repealed."  The  code  commissioners  quote  the  section 
from  the  former  constitution,  and  say:  "Section  384  was  inserted  in 
this  code  out  of  an  abundance  of  caution,  and  not  because  it  was 
■  deemed  necessary,  for  there  can  be  but  little  doubt  that  the  constitu- 
tional provision  quoted  at  the  head  of  this  note  enters  into  and  becomes 
a  part  of  the  contract,  thereby  reserving  to  the  legislature  the  right 
to  repeal,  impair,  or  alter  any  law  relative  to  the  formation  of  cor- 


§  389  CIVIL  CODE.  158 

porations,  even  though  the  result  reached  would  be  the  dissolution  of 
every  corporation  organized  within  the  state."  The  act  of  1907  repeal- 
ing this  section  contained  the  following  clauses:  "provided  however, 
that  this  shafl  not  be  deemed  to  repeal  or  otherwise  affect  section 
four  hundred  and  four  of  said  code;  and  provided  further  that  no 
rights  acquired  under  the  provisions  of  said  section  three  hundred  and 
eighty-four  shall  be  affected  hereby,  but  the  same  shall  be  continued  in 
force  under  the  provisions  of  said  section  four  hundred  and  four." 

AETICLE  IV. 

Judgment  Against  and  Sale  of  Corporate  Property. 

§  388.  Franchise  may  be  treated  as  property,  and  sold  under  execution. 

§  389.  Purchaser  to  transact  business  of  corporation. 

§  390.  Purchaser  may  recover  penalties,  etc. 

§  391.  Corporation  to  retain  powers  after  sale. 

§  392.  Eedemption. 

§  393.  Sale,  where  made. 

§  388.  Franchise  may  be  treated  as  property,  and  sold 
under  execution.  For  the  satisfaction  of  any  judgment 
against  any  person,  company,  or  corporation  having  any  fran- 
chise other  than  the  franchise  of  being  a  corporation,  such 
franchise,  and  all  the  rights  and  privileges  thereof,  may  be 
levied  upon  and  sold  under  execution,  in  the  same  manner,  and 
with  the  same  effect,  as  any  other  property.  [Amendment  ap- 
proved 1905;  Stats.  1905.  p.  409.] 

Seizure  on  execution:  See  Code  Civ.  Proc,  §  688. 

Legislation  §  388,  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  20),  and  then  read:  "For  the  satisfaction  of  any  judgment 
against  a  corporation  organized  for  profit,  its  franchise  and  all  the 
rights  and  privileges  thereof  may  be  levied  upon  and  sold  under 
execution,  in  the  same  manner  and  with  like  effect  as  any  other  prop- 
erty." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  208,  substituting  "author- 
ized to  receive  tolls"  for  "organized  for  profit." 

3.  Amended  by  Stats.  1897,  p.  16,  to  read:  "For  the  satisfaction  of 
any  judgment  against  any  person,  company,  or  corporation  authorized 
to  receive  tolls,  the  franchise,  and  all  the  rights  and  privileges  thereof, 
may  be  levied  upon  and  sold  under  execution,  in  the  same  manner, 
and  with  the  same  effect,  as  any  other  property." 

4.  Amendment  hj  Stats.  1901,  p.  352;  unconstitutional.  See  note, 
§  4,  ante. 

^  5.  Amended  by   Stats.   1905,   p.   409;    the   code   commissioner  saying, 

"This  section  as  it  stood  prior  to  the  amendment  applied  only  to  cor- 
porations authorized  to  receive  tolls,  and  was  probably  unconstitu- 
tional as  creating  a  special  law  where  a  general  law  may  be  made 
applicable.  (See  Krause  v.  Durbrow,  127  Cal.  681.)  The  amendment 
makes  the  section  applicable  to  all  corporations." 

§  389.     Purchaser  to  transact  business  of  corporation.     The 

purchaser  at  the  sale  must  receive  a  certificate  of  purchase  of 
the  franchise,  and  be  immediately  let  into  the  possession  of 
all  property  necessary  for  the  exercise  of  the  powers  and  the 


159     JUDGMENT  AGAINST  AND  SALE  OF  CORPORATE  PROPERTY.     §  392 

receipt  of  the  proceeds  thereof,  and  must  thereafter  conduct 
the  business  of  such  corporation,  with  all  its  powers  and  privi- 
leges, and  subject  to  all  its  liabilities,  until  the  redemption  of 
the  same,  as  hereinafter  provided. 

Legislation  §  389.     Enacted    March    21,    1872. 

§  390.  Purchaser  may  recover  penalties,  etc.  The  pur- 
chaser or  his  assignee  is  entitled  to  recover  any  penalties  im- 
posed by  law  and  recoverable  by  the  corporation  for  an  injury 
to  the  franchise  or  property  thereof,  or  for  any  damages  or 
other  cause,  occurring  during  the  time  he  holds  the  same,  and 
may  use  the  name  of  the  corporation  for  the  purpose  of  any 
action  necessary  to  recover  the  same.  A  recovery  for  dam- 
ages or  any  penalties  thus  had  is  a  bar  to  any  subsequent 
action  by  or  on  behalf  of  the  corporation  for  the  same. 

Legislation  §  390,  Enacted  March  21,  1872.  The  code  commission- 
ers say:  "For  this  change  in  the  law  it  is  deemed  sutficient  simply  to 
refer  to  Monroe  v.  Thomas,  5  Cal.  470,  Thomas  v.  Armstrong,  7  Cal. 
28fi,  and  Wood  v.  Truckee  Turnpike  Co.,  24  Cal.  487." 

§  391.  Corporation  to  retain  powers  after  sale.  The  per- 
son, company,  or  corporation  whose  franchise  is  sold,  as  in 
this  article  provided,  in  all  other  respects  retains  the  same 
powers,  is  bound  to  the  discharge  of  the  same  duties,  and  is 
liable  to  the  same  penalties  and  forfeitures,  as  before  such 
sale.     [Amendment  approved  1905;  Stats.  1905,  p.  409.] 

Legislation  §  391.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  26),  and  then  read:  "The  corporation  whose  franchise  is  sold,, 
as  in  this  article  provided,  in  all  other  respects  retains  the  same 
powers,  is  bound  to  the  discharge  of  the  same  duties,  and  is  liable  to 
the  same  penalties  and  forfeitures,  as  before  such  sale." 

2.  Amendment  by  Stats.  1901,  p.  352;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  409;  the  code  commissioner  saying, 
"The  amendment  makes  the  section  applicable  to  persons  and  com- 
panies as  well  as  to  corporations." 

§  392.  Redemption.  Redemption  from  any  such  sale  may 
be  had  as  provided  in  the  Code  of  Civil  Procedure  in  the  case 
of  redemptions  from  sales  of  real  estate  on  execution. 
[Amendment  approved  1905;  Stats.  1905,  p.  409.] 

Legislation  §  392.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
corporation  may,  at  any  time  within  one  year  after  such  sale,  redeem 
the  franchise,  by  paying  or  tendering  to  the  purchaser  thereof  the 
sum  paid  therefor,  with  ten  per  cent  interest  thereon,  but  without  any 
allowance  for  the  toll  which  he  may  in  the  mean  time  have  received; 
and  upon  such  payment  or  tender  the  franchise  and  all  the  rights  and 
privileges  thereof  revert  and  belong  to  the  corporation,  as  if  no  such 
sale  had  been   made." 

2.  Amendment  by  StatS-  1901,  p.  352;  unconstitutional.  See  note, 
§  4,  ante. 


§  400  CIVIL   CODE.  160 

3.  Amended  by  Stats.  1905,  p.  409;  the  code  commissioner  saying, 
"The  amendment  makes  applicable  to  an  execution  sale  of  franchises 
the  law  of  redemption  applicable  to  other  sales  of  real  property." 

§  393.  Sale,  where  made.  The  sale  of  any  franchise  under 
execution  must  be  made  in  the  county  in  which  the  corpora- 
tion has  its  principal  place  of  business,  or  in  which  the  prop- 
erty, or  some  portion  thereof,  is  situated.  [Amendment  ap- 
proved 1905;  Stats.  1905,  p.  409.] 

Legislation  §  393.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  28),  and  then  read:  "The  levy  and  sale  of  any  franchise  under 
execution  may  be  had  in  any  county  in  which  the  president  or  any 
director,  the  treasurer  or  the  secretary  of  the  corporation  may  reside, 
or  in  which  the  corporation  has  its  principal  place  of  business." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  209,  and  differed  from  the 
amendment  of  1903,  in  that  it  had  the  words  "upon  which  the  taxes 
are  paid"  before  "is  situated"  at  end  of  section. 

3.  Amendment  by  Stats.  1901,  p.  352;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  409;  the  code  commissioner  saying, 
"Omits  the  words  'upon  which  the  taxes  are  paid,'  that  having  appar- 
ently no  relevancy  to  the  section." 


CHAPTER  IV. 

Extension  and  Dissolution  of  Corporations. 

§  399.     Proceedings  to  disincorporate.     [Repealed.] 

§  400.     On  dissolution,  directors  to  be  trustees  for  creditors. 

§  401.     Extension   of   corporate   existence.     Certificate   filed   with   county 

clerk  and  secretary  of  state.     Franchises. 
§  402.     How  corporations  may  continue  their  existence.     [Repealed.] 
§  403.     Title   one   to   apply   to   all    corporations,   with    certain    exceptions. 

[Repealed.] 

Legislation  Chapter  IV.  When  enacted  in  1872,  Chapter  IV  con- 
tained §§  399-403.  By  Stats.  1905,  p..  410,  §  403  was  repealed,  and  a 
new  chapter  added,  in  which  this  section  was  re-enacted.  See  post, 
Legislation  Chapter  V  and  Legislation  §  403. 

§  399.     Proceedings    to     disincorporate.     [Repealed    1905 ; 
Stats.  1905,  p.  563.] 

Involuntary  dissolution:  See  Code  Civ.  Proc,  §§  803  et  seq. 
Voluntary  dissolution:  See  Code  Civ.  Proc,  §§  1227-1233. 
Dissolution  of  co-operative  business  association:   See  post,  §  653j. 
Legislation  §  399.     1.  Enacted   March   21.  1872. 

2.  Repeal  by  Stats.  1901,  p.  352;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Repealed  by  Stats.  1905,  p.  563;  the  code  commissioner  saying, 
"This  section,  which  purports  merely  to  designate  the  place  in  the 
Code  of  Civil  Procedure  where  the  dissolution  of  corporations  is  pro- 
vided for,  does  not  state  any  rule  of  law  and  constitutes  but  an  im- 
perfect index  to  the  provisions  referred  to,  and  is,  therefore,  repealed." 

§  400.     On  dissolution,  directors  to  be  trustees  for  creditors. 

Unless  other  persons  are  appointed  by  the  court,  the  directors 


401.  Extension  of  Corporate  Existence;  Certificate  Filed  With 
County  Clerks  and  Secretary  of  State;  Franchises.  Every  cor- 
poration heretofore  or  hereafter  formed,  and  existing  under  the 
laws  of  this  state,  may  at  any  time  prior  to  the  expiration  of  the 
term  of  its  corporate  existence  extend  such  term  to  a  period  not 
exceeding  fifty  years  from  the  date  of  such  extension.  Such 
extension  may  be  made  at  any  meeting  of  the  stoclvholders,  or 
members,  called  by  the  directors  [especially]  for  considering  the 
subject,  if  voted  for  by  stockholders  representing  two-thirds 
of  the  capital  stock;  or  by  two-thirds  of  the  members  where 
there  is  no  capital  stock;  or  may  be  made  upon  the  written 
assent  of  two-thirds  of  the  members  or  of  stockholders  repre- 
senting two-thirds  of  the  capital  stock.  A  certificate  of  such 
vote  or  assent  [bearing  the  corporate  seal  and]  signed  and  sworn 
to  by  the  president  and  secretary  and  by  a  majority  of  the 
directors  of  the  corporation,  [shall  be  filed]  in  the  office  of  the 
secretary  of  state  and  thereupon  the  term  of  existence  of  the 
corporation  shall  be  extended  for  the  period  specified  in  such 
certificate.  [The  secretary  of  state  shall  forthwith  is^ue  a  cer- 
tified copy  of  said  certificate  and  transmit  said  copy  to  the 
county  clerk  of  the  county  in  which  the  principal  place  of  busi- 
ness of  the  corporation  was  situated  at  the  time  said  corporation 
was  incorporated  which  copy  shall  be  filed  by  said  county  clerk 
upon  payment  of  the  fee  prescribed  by  law.  A  copy  of  such  cer- 
tificate, certified  by  the  secretary  of  state,  shall  be  filed  by  such 
corporation  in  the  office  of  the  county  clerk  of  every  county  In 
which  said  corporation  has  or  holds  real  property.  Any  cor- 
poration which  shall  fail  to  comply  with  the  requirements  of  the 
preceding  sentence  shall  be  subject  to  the  penalties  and  liabilities 
provided  in  section  two  hundred  ninety  nine  for  a  failure  of 
corporations  to  file  copies  of  their  articles  of  Incorporation  with 
the  county  clerks  of  the  counties  in  which  they  shall  purchase, 
hold  or  locate  real  property.]  The  fees  for  certifying  such  cer- 
tificate and  filing  the  same  and  the  certified  copy  thereof,  shall 
be  the  same  as  those  prescribed  by  law  for  certifying  and  filing 
articles  of  incorporation  in  such  cases.  In  no  event  shall  such 
extensions  be  construed  to  prolong  or  extend  the  duration  of  any 
franchise  or  privilege  heretofore  granted  to  any  corporation  or 
joint  stock  company  by  special  legislative  act,  or  by  the  munici- 
pal authorities  of  any  county,  city,  city  and  county,  town  or 
other  political  subdivision  of  this  state,  beyond  the  term  fixed 
by  the  provisions  of  the  act,  ordinance  or  resolution  conferring 
such  privilege  or  franchise,  or  beyond  the  term  fixed  for  the 
maximum  period  of  existence  of  such  corporation  or  joint  stock 
company  by  laws  in  force  and  governing  the  formation  and 
organization  thereof  at  the  time  such  corporation  or  joint  stock 
company  was  formed  or  organized.  (In  effect  90  days  from  and 
after   April    29,    1921.      Stats.    1921,    Chap.    133.)  Civ.  Code,  1921. 


400.     On    Dissolution    Directors    to    Be    Trustees    for    Creditors. 

Unless  other  persons  are  appointed  by  the  court,  the  directors  or 
managers  of  the  affairs  of  a  corporation  at  the  time  of  its  dis- 
solution are  trustees  of  the  creditors  and  stockholders  or  mem- 
bers of  the  coi-poration  dissolved,  and  have  full  powers  to  settle 
the  affairs  of  the  corporation,  collect  and  pay  outstanding  debts, 
sell  the  assets  thereof  in  such  manner  as  the  court  shall  direct, 
and  distribute  the  proceeds  of  such  sales  and  all  other  assets  to 
the  stockholders.  Such  trustees  shall  have  authority  to  sue  for 
and  recover  the  debts  and  property  of  the  corporation,  and  shall 
be  jointly  and  severally  personally  liable  to  its  creditors  and 
stockholders  or  members,  to  the  extent  of  its  property  and  effects 
that  shall  come  into  their  hands.  Death,  resignation  or  failure  or 
inability  to  act  shall  constitute  a  vacancy  in  the  position  of 
trustee,  which  vacancy  shall  be  filled  by  appointment  by  the 
superior  court  upon  petition  of  any  person  or  creditor  interested 
in  the  property  of  such  corporation.  Such  trustees  may  be  sued 
in  any  court  in  this  state  by  any  person  having  a  claim  against 
such  corporation  or  its  property.  Trustees  of  corporations  here- 
tofore dissolved  or  whose  charters  have  heretofore  been  forfeited 
by  law  shall  have  and  discharge  in  the  same  manner  and  under 
the  same  obligations,  all  the  powers  and  duties  herein  prescribed. 
"Vacancies  in  the  office  of  trustees  of  such  corporations  shall  be 
filled  as  hereinbefore  provided[;  provided,  however,  that  any  deed 
executed  In  the  name  of  such  corporation  by  the  president  or 
vice-president  and  secretary  or  assistant  secretary  after  a  dis- 
solution thereof  or  after  a  forfeiture  of  the.  charter  of  such  cor- 
poration or  after  the  suspension  of  the  corporate  rights,  privi- 
leges and  powers  of  such  corporation,  which  deed  shall  have 
been  duly  recorded  In  the  proper  book  of  records  of  the  county 
in  which  the  land  or  any  portion  thereof  so  conveyed  Is  situ- 
ated, for  a  period  of  five  years,  shall  have  the  same  force  and 
effect  as  if  executed  and  delivered  prior  to  said  dissolution,  for- 
feiture or  suspension].  (In  effect  90  days  from  and  after  April 
29,    1921.      Stats.    1921,    Chap.    383.)  Civ.  Code,  1921. 


400.     On    Dissolution,    Directors    to    Be    Trustees    for   Creditors.  )|'] 

Unless  other  persons  are  appointed  by  the  court,  the  directors 
or  managers  of  the  affairs  of  a-  corporation  at  the  time  of  its 
dissolution  are  trustees  of  the  creditors  and  stockholders  or  mem- 
bers of  the  corporation  dissolved,  and  have  full  [powers]  to  settle 
the  affairs  of  the  corpoiation,  [collect  and  pay  outstanding  debts, 
sell  the  assets  thereof  in  such  manner  as  the  court  shall  direct, 
and  distribute  the  proceeds  of  such  sales  and  all  other  assets  to 
the  stockholders.  Such  trustees  shall  have  authority  to  sue  for 
and  recover  the  debts  and  property  of  the  corporation,  and  shall 
be  jointly  and  severally  personally  liable  to  its  creditors  and 
stockholders  or  members,  to  the  extent  of  its  property  and  effects 
that  shall  come  into  their  hands.  Death,  resignation  or  failure  or 
inability  to  act  shall  constitute  a  vacancy  in  the  position  of  trus- 
tee, which  vacancy  shall  be  filled  by  appointment  by  the  superior 
court  upon  petition  of  any  person  or  creditor  interested  In  the 
property  of  such  corporation.  Such  trustees  may  be  sued  In  any 
court  in  this  state  by  any  person  having  a  claim  against  such 
corporation  or  its  property.  Trustees  of  corporations  heretofore 
dissolved  or  whose  charters  have  heretofore  been  forfeited  by  law 
shall  have  and  discharge  in  the  same  manner  and  under  the  same 
obligations,  all  the  powers  and  duties  herein  prescribed.  Vacancies 
in  the  office  of  trustees  of  such  corporations  shall  be  filled  as 
hereinbefore  provided.]  (In  effect  90  days  from  and  after  April 
27.   1917.     Stats.   1917,   Chap.   216.)  Civ.   Code,   1917. 


F" 


\ 


161  EXTENSION   AND   DISSOLUTION    OF    CORPORATIONS.         §  401 

or  managers  of  the  affairs  of  a  corporation  at  the  time  of  its 
dissolution  are  trustees  of  the  creditors  and  stockholders  or 
members  of  the  corporation  dissolved,  and  have  full  power  to 
settle  the  affairs  of  the  corporation.  [Amendment  approved 
1905;  Stats.  1905,  p.  563.] 

Iiegislation  §  400.  1.  Enacted  March  21,  1872;  based  on  Stats.  18.57, 
p.  347,  §16;  Stats.  1853,  p.  169,  §  27;  Stats.  1853,  p.  91,  §23;  Stats. 
1852,  p.  199,  §  25.  The  code  commissioners  say:  "This  section,  appli- 
cable to  many  of  our  corporations,  is  extended  to  all." 

2.  Amendment  by  Stats  1901,  p.  352;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  563,  substituting  "a"  for  "such,"  be- 
fore "corporation,"  where  this  word  is  first  printed. 

§  401.  Extension  of  corporate  existence.  Certificate  filed 
with  county  clerk  and  secretary  of  state.  Franchises.  Every 
corporation  heretofore  or  hereafter  formed,  and  existing  under 
the  laws  of  this  state,  may  at  any  time  prior  to  the  expiration 
of  the  term  of  its  corporate  existence  extend  such  term  to  a 
period  not  exceeding  fifty  years  from  the  date  of  such  exten- 
sion. Such  extension  may  be  made  at  any  meeting  of  the 
stockholders,  or  members,  called  by  the  directors  expressly  for 
considering  the  subject,  if  voted  for  by  stockholders  represent- 
ing two  thirds  of  the  capital  stock ;  or  by  two  thirds  of  the 
members  where  there  is  no  capital  stock ;  or  may  be  made  upon 
the  written  assent  of  two  thirds  of  the  members  or  of  stock- 
holders representing  two  thirds  of  the  capital  stock.  A  certifi- 
cate of  such  vote  or  assent  shall  be  signed  and  sworn  to  by 
the  president  and  secretary  and  by  a  majority  of  the  directors 
of  the  corporation,  and  filed  in  the  office  of  the  county  clerk 
where  the  original  articles  of  incorporation  were  filed,  and 
a  copy  certified  by  such  clerk  shall  be  filed  in  the  office  of  the 
secretary  of  state,  and  thereupon  the  term  of  existence  of  the 
corporation  shall  be  extended  for  the  period  specified  in  such 
certificate.  The  fees  for  certifying  such  certificate  and  filing 
the  same  and  the  certified  copy  thereof,  shall  be  the  same  as 
those  prescribed  by  law  for  certifying  and  filing  articles  of  in- 
corporation in  such  cases.  In  no  event  shall  such  extension  be 
construed  to  prolong  or  extend  the  duration  of  any  franchise 
or  privilege  heretofore  granted  to  any  corporation  or  joint- 
stock  company  by  special  legislative  act,  or  by  the  municipal 
authorities  of  any  county,  city,  city  and  county,  town,  or 
other  political  subdivision  of  this  state,  beyond  the  term  fixed 
by  the  provisions  of  the  act,  ordinance  or  resolution  conferring 
such  privilege  or  franchise,  or  lieyond  the  term  fixed  for  the 
maximum  period  of  existence  of  such  corporation  or  joint- 
stock  company  by  laws  in  force  and  governing  the  formation 
and*  organization  thereof  at  the  time  such  corporation  or  joint- 

Civ.  Code — 11 


§  403  CIVIL  CODE.  162 

stock  company  was  formed  or  organized.     [Amendment  ap- 
proved 1907 ;  stats.  1907,  p.  314.] 

Extension  of  term  of  existence:  See  Const.,  art.  xii,  §  7. 
Legislation  §  401.  1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p.  364,  §§  1,  2),  and  then  read:  "Every  corporation  heretofore 
formed,  for  any  purpose  enumerated  in  this  title  for  which  corpora- 
tions may  be  formed,  for  a  period  of  time  less  than  fifty  years,  may, 
at  any  time  prior  to  the  expiration  of  the  term  of  its  corporate  exist- 
ence, extend  such  term  to  a  period  not  exceeding  fifty  years  from  its 
formation.  Such  extension  must  be  made  at  a  meeting  of  the  stock- 
holders or  members,  after  such  order  of  the  directors  and  notice  thereof, 
with  such  amount  of  capital  stock  or  number  of  members  represented, 
and  such  affirmative  vote  thereof,  as  required  herein  for  the  increase 
or  diminution  of  the  capital  stock,  and  filing  a  certificate  thereof  in  the 
same  offices  where  their  articles  of  incorporation  are  filed." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  209,  to  read:  "Every  cor- 
poration formed  for  a  period  less  than  fifty  years,  may,  at  any  time 
prior  to  the  expiration  of  the  term  of  its  corporate  existence,  extend 
such  term  to  a  period  not  exceeding  fifty  years  from  its  formation. 
Such  extension  may  be  made  at  any  meeting  of  the  stockholders  or 
members,  called  by  the  directors  expressly  for  considering  the  subject, 
if  voted  by  stockholders  representing  two  thirds  of  the  capital  stock; 
or  by  two  thirds  of  the  members,  or  may  be  made  upon  the  written 
assent  of  that  number  of  stockholders  or  members.  A  certificate  of 
the  proceedings  of  the  meeting  upon  such  vote,  or  upon  such  assent, 
shall  be  signed  by  the  chairman  and  secretary  of  the  meeting  and  a 
majority  of  the  directors,  and  be  filed  in  the. office  of  the  county  clerk 
where  the  original  articles  of  incorporation  were  filed,  and  a  certified 
copy  thereof  in  the  otfice  of  the  secretary  of  state,  and  thereupon  the 
term  of  the  corporation  shall  be  extended  for  the  specified  period." 

3.  Amendment  by  Stats.  1901,  p.  353;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  564,  (1)  at  end  of  sentence  beginning 
"Such  extension."  changing  "that  number  of  stockholders  or  members" 
to  "two  thirds  of  the  members  or  of  stockholders  representing  two 
thirds  of  the  capital  stock";  (2)  in  sentence  beginning  "A  certificate," 
changing  (a)  "shall"  to  "must"  before  "be  signed,"  and  (b)  "shall  be" 
to  "is"  before  "extended"  at  end  of  section;  the  code  commissioner 
making  the  same  note  to  this  amendment  as  to  that  of  1907;  q.  v.,  infra. 

5.  Amended  by  Stats.  1907,  p.  344;  the  code  commissioner  saying, 
"The  design  of  the  amendment  is  to  require  the  written  assent  of 
stockholders  representing  two  thirds  of  the  capital  stock  instead  of 
permitting  tw^o  thirds  in  number  of  the  stockholders  to  act  by  their 
written  consent." 

\^^\    "  §  402.     How    corporations    may   continue    their    existence. 

[Repealed  1874;  Code  Amdts.  1873-74,  p.  209.] 

Legislation  §  402.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code-Amdts.  1873-74,  p.  209. 

§  403.     Title  one  to  apply  to  all  corporations,  with  certain 
exceptions.     [Repealed  1905;  Stats.  1905,  p.  410.] 

There  is  another  section  of  this  number.     See  next  section. 
Legislation  §  403.     See    supra,    Legislation    Chapter   IV,    and    infra, 
Legislation  §  403,  Chapter  V.  , 


At  the  time  fixed  for  such  hearing  or  at  such  time  thereafter 
as  may  be  fixed  by  the  court,  the  court  must  hear  the  proofs 
offered  by  the  petitioner  and  by  any  person  answering  the  same, 
and  must  make  an  order  and  decree,  conformable  to  the  proofs, 
determining  and  establishing  the  identity  of  the  persons  who 
were  the  directors  or  managers  of  the  affairs  of  such  corporation 
at  the  time  of  its  dissolution,  and  appointing  successors  for  any 
such  directors  or  managers  who  may  be  dead,  or  who  may  be 
unable  to  or  may  refuse  to  act,  or  appointing  trustees  in  the 
place  of  any  of  such  directors  or  managers  whose  identity  can- 
not be  determined.  Any  such  successor  or  trustee  so  appointed, 
shall  thereupon  become  one  of  the  trustees  of  the  creditors  and 
stockholders  or  members  of  such  corporation,  with  the  same 
pow^ers  and  duties  as  by  section  four  hundred  of  this  code,  and 
otherwise  by  law,  shall  be  given  to  or  imposed  upwn  directors 
or   managers   of   such   corporation   upon    its    dissolution. 

Said  court  shall  thereafter  letain  jurisdiction  in  said  proceed- 
ing to  hear  and  determine  all  matters  pertaining  to  said  trusts, 
which  may  arise  out  of  the  provisions  of  section  four  hundred 
of  this  code,  or  which  may  not  be  otherwise  expressly  provided 
lor,  and  to  make  all  necessary  orders,  judgments  and  decrees 
pursuant  thereto. 

The  dissolvition  of  a  corporation,  as  the  term  is  used  in  this 
section,  shall  include  any  legal  termination  of  corporate  exist- 
ence, whether  by  forfeiture  of  charter,  expiration  of  term  of 
existence,  dissolution  by  order  of  court  of  competent  jurisdic- 
tion,  or   otherwise. 

The  provisions  of  this  section  shall  be  cumulative  of  any  other 
remedy  provided  by  law,  and  shall  not  impair  or  affect  any 
remedy  or  proceeding  otherwise  provided  by  law  for  settling  the 
affairs  of  a  corporation  which  has  been  dissolved.  (In  effect  90 
days   from   and  after  April  29,    1921.     Stats.    1921,   Chap.    96.) 

Civ.  Code,  1921. 


402.  [New.]  Determination  of  Directors  of  Dissolved  Cor- 
porations and  Settlement  of  Affairs  of  Such  Corporations.  If, 
upon  the  dissolution  of  any  corporation,  whether  heretofore  or 
hereafter  occurring,  the  identity  of  the  directors  or  managers  ot 
the  affairs  of  such  corporation,  at  the  time  of  such  dissolution 
shall  not  be  otherwise  judicially  established,  any  person  inter  - 
ested  in  the  property,  comprising  the  assets  of  such  corporation 
at  the  time  of  such  dissolution,  may  file  a  verified  petition  in 
the  superior  court  of  the  State  of  California  in  and  for  the 
county  wherein  was  located  the  principal  place  of  business  of 
such  corporation,  at  the  time  of  its  dissolution,  setting  forth  the 
facts  of  dissolution  of  such  corporation,  the  petitioner's  interest 
in  the  property  which  formerly  comprised  the  assets  of  such 
corporation,  the  absence  of  any  judicial  determination  of  the 
identity  of  the  directors  or  managers  of  the  affairs  of  such  cor- 
poration at  the  time  of  its  dissolution,  the  names  and  places  of 
residence,  so  far  as  known  to  petition,  of  the  persons  who  were 
such  directors  or  managers  of  the  affairs  of  such  corporation 
(or  if  any  be  dead,  or  unable  to  act,  or  their  names  or  places 
of  residence  be  unknown,  then  such  facts  shall  be  stated),  also 
any  other  facts  pertinent  to  the  relief  prayed  for,  and  a  request 
that  a  decree  be  entered  in  said  court,  establishing  the  identity 
of  the  persons  who  were  such  directors  or  managers  of  the 
affairs  of  such  corporation  at  the  time  of  its  dissolution,  and  for 
an  order  appointing  successors  for  any  such  directors  or  manag- 
ers who  may  be  dead  or  unable  to  act,  or,  if  it  be  impossible  to 
determine  the  identity  of  all  or  any  of  such  directors  or  manag- 
ers, then  for  an  order  appointing  trustees  of  the  creditors  and 
stockholders  or  members  of  such  corporation  in  the  place  of  such 
unknown    directors    or    managers. 

Upon  the  filing  of  such  petition  the  clerk  of  said  court  shall 
fix  a  time  and  place  for  hearing  said  petition,  not  less  than 
fifteen  nor  more  than  thirty  days  from  the  filing  of  said  peti- 
tion, and  shall  give  notice  thereof  by  posting  notices  in  three 
public  places  in  said  county  at  least  ten  days  before  the  date 
fixed  for  said  hearing,  and,  if  the  place  of  residence  of  any  such 
directors  or  managers  be  stated  in  the  petition,  then  by  mailing 
copies  of  said  notice  to  each  of  the  persons  named  in  said  peti- 
tion as  directors  or  managers  of  the  affairs  of  such  coi-p.oration 
at  the  time  of  its  dissolution,  at  their  respective  places  of  resi- 
dence as  stated  in  said  petition. 

At  any  time  before  the  date  fixed  for  such  hearing,  and  person 
interested  in  any  property  formerly  comprising  the  assets  of  such 
corporation,  or  any  person  named  in  said  petition  as  one  of  the 
directoi-s  or  managers  of  the  affairs  of  such  corporation,  may 
answer  said  petition  and  deny  any  of  the  matters  contained 
therein  and  set  forth  such  affirmative  matters  as  may  aid  the 
court  in  making  a  proper  decree  in  accordance  with  the  purposes 
of   the   petition. 


163  GENERAL   PROVISIONS    AFFECTING    CORPORATIONS.  §  404 

CHAPTER  V. 

General  Provisions  Affecting  Corporations. 

§  403.     Title  one  to  apply  to  all  corporations,  with  certain  exceptions. 

§  404.  Power  of  the  legislature  to  amend  or  repeal  this  part,  or  any  title, 
chapter,  article,  or  section  thereof,  and  to  dissolve  all  corpora- 
tions created  thereunder. 

Legislation  Chapter  V.  Added  by  Stats.  1905,  p.  410.  See  tit. 
"Legislation"  under  each  section  constituting  the  chapter. 

§  403.  Title  one  to  apply  to  all  corporations,  with  certain 
exceptions.  The  provisions  of  this  title  are  applicable  to  every 
corporation,  unless  such  corporation  is  excepted  from  its  opera- 
tion, or  unless  a  special  provision  is  made  in  relation  thereto 
inconsistent  v^dth  some  provision  in  this  title,  in  which  case  the 
special  provision  prevails. 

There  is  another  section  of  this  number.     See  prior  section. 
Statutes  affecting  corporations  are  public:  See  Code  Civ.  Proc,  §  1898. 
Legislation  §  403.     1.  Enacted  March  21,  1872,  and  then  constituted 
the  last  section  of  Chapter  IV. 

2.  Repealed  by  Stats.  1905,  p.  410. 

3.  Re-enacted  by  Stats.  1905,  p.  410,  being  in  the  identical  language 
of  the  repealed  section,  which  was  transferred  from  Chapter  IV  to  the 
new  chapter;  the  code  commissioner  saying,  "The  amendment  of  1905 
added  a  new  chapter,  entitled  'General  Provisions  Affecting  Corpora- 
tions.' Said  chapter  is  made  up  of  the  old  §  403,  which  stood  in  a 
chapter  entitled  'Extension  and  Dissolution  of  Corporations,'  and  of  the 
matter  in  old  §  384,  which  stood  in  a  chapter  entitled  'Examination  of 
Corporations.'  The  object  of  the  rearrangement  was  the  placing  of 
the  sections  under  a  more  appropriate  chapter  heading." 

§  404.  Povirer  of  the  legislature  to  amend  or  repeal  this 
part,  or  any  title,  chapter,  article,  or  section  thereof,  and  to 
dissolve  all  corporations  created  thereunder.  The  legislature 
may  at  any  time  amend  or  repeal  this  part,  or  any  title,  chap- 
ter, article,  or  section  thereof,  and  dissolve  all  corporations 
created  thereunder;  but  such  amendment  or  repeal  does  not, 
nor  does  the  dissolution  of  any  such  corporation,  take  aw^ay 
or  impair  any  remedy  given  against  any  such  corporation,  its 
stockholders  or  officers,  for  any  liability  which  has  been  previ- 
ously incurred. 

Legislation  §  404.  1.  Addition  by  Stats.  1901,  p.  353;  unconstitu- 
tional.    See   note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  410.  See  ante,  Legislation  §  403,  for 
code  commissioner's  note. 


§  406  CIVIL  CODE.  164 

CHAPTER  VI. 
Foreign  Corporations. 

§  405.  Designation  of  person  on  whom  process  may  be  served.  Service 
on  the  secretary  of  state,  when  valid. 

§  406.  Foreign  corporations,  statute  of  limitations  in  favor  of.  Proof  of 
corporate  existence.     Change  of  designation. 

§  407.     Foreign  railway  corporations,  rights  of  in  this  state. 

§  408.  Foreign  corporations  to  file  certified  copies  of  articles  of  incor- 
poration. 

§  409.  Foreign  corporations,  fees  to  be  paid  by,  on  filing  certified  copies 
of  articles  of  incorporation. 

§  410.     Foreign  corporations  failing  to  comply  with  law. 

Legislation  Chapter  VI.  Added  by  Stats.  1905,  p.  630,  and  then  con- 
tained the  present  §§  405—410;  the  code  commissioner  saying  in  his 
note  to  §§  405-407,  "These  sections  codify  the  statute  of  1871-72,  p.  826, 
as  amended  189'9.  p.  Ill,  and  §  1  of  the  statute  of  1880,  p.  21,"  and  in 
his  note  to  §§  408-410,  '"These  sections  codify  the  statute  of  1901, 
p.  108." 

§  405.  Designation  of  person  on  whom  process  may  be 
served.  Service  on  the  secretary  of  state,  when  valid.  Every 
corporation  other  than  those  created  by  or  under  the  laAvs  of 
this  state  must,  at  the  time  of  filing  the  certified  copy  of  its 
articles  of  incorporation,  file  in  the  office  of  the  secretary  of 
state  a  designation  of  some  person  residing  within  the  state 
upon  whom  process  issued  by  authority  of  or  under  any  laAV 
of  this  state  may  be  served.  A  copy  of  such  designation, 
duly  certified  by  the  secretary  of  state,  is  sufficient  evidence 
of  such  appointment.  Such  process  may  be  served  on  the  per- 
son so  designated,  or,  in  the  event  that  no  such  person  is  des- 
ignated, then  on  the  secretary  of  state,  and  the  service  is  a 
valid  service  on  such  corporation.  [Amendment  approved 
1907;  Stats.  1907,  p.  558.] 

Legislation  §  405.  1.  Addition  by- Stats.  1901,  p.  333;  unconstitu- 
tional.    See   note,  §  4,   ante. 

2.  Added  by  Stats.  1905,  p.  630. 

3.  Amended  bj-  Stats.  1907,  p.  558,  substituting  "at  the  time  of  filing 
the  certified  copy  of  its  articles  of  incorporation"  for  "within  forty 
days  from  the  time  it  commences  to  do  business  therein."  See  ante, 
Legislation  Chapter  VI,  for  code  commissioner's  note. 

§  406.  Foreign  corporations,  statute  of  limitations  in  favor 
of.  Proof  of  corporate  existence.  Change  of  designation. 
Every  corporation  which  complies  with  the  provisions  of  this 
chapter  is  thereafter  entitled  to  the  benefit  of  the  laws  of  this 
state  limiting  the  time  for  the  commencement  of  civil  actions, 
but  no  corporation  not  created  by  or  under  the  laws  of  this 
state  is  entitled  to  the  benefit  thereof,  nor  can  any  such  cor- 
poration maintain  or  defend  any  action  or  proceeding  in  any 
court  of  this  state  until  the  corporation  has  complied  with  the 


A    after    Apri^    27. 
«ect    90    days    from    and    af^_  ^^,^,  ,9,7. 

405.   „^r!S^' Chap.  216.) 


405.     ^^^tn  r  CbaP.  2^6-) 

1917.     Stats.  1-^lT- 


\ 


®fats.   J.9J.    -On    effect    90    ^ 

'  ^"ap.   91  fl  .       ■^"   day; 


216.)  ''^ys    from 

"'^^    3"d    after    4.  . 


408.     Repealed.     (In    effect 
11117.     Stats.    i;)17,   Chap.   210.) 


no 


days    ftom    and    after    April    27, 
Civ.   Code,   1917. 


165  FOREIGN  CORPORATIONS.  §  408 

provisions  of  the  preceding  section.  In  any  action  or  proceed- 
ing instituted  against  any  body  styled  as  a  corporation,  but 
not  created  by  nor  under  the  laws  of  this  state,  evidence  that 
such  body  has  acted  as  a  corporation,  or  employed  methods 
usually  employed  by  corporations,  must  be  received  by  the 
court  for  the  purpose  of  proving  the  existence  of  such  corpora- 
tion, the  sufficiency  of  such  evidence  to  be  determined  by  the 
court  with  like  effect  as  in  other  cases.  Every  corporation 
which  has  complied  with  the  laws  then  in  force,  requiring  it  to 
make  and  file  a  designation  of  the  person  upon  whom  process 
against  it  may  be  served,  need  not  make  or  file  any  further 
designation.  Any  designation  heretofore  or  hereafter  made 
may  be  revoked  by  the  filing  by  the  corporation  with  the  secre- 
tary of  state  of  a  writing  stating  such  revocation.  Within 
forty  days  after  the  death  or  removal  from  the  state  of  any 
person  designated  by  the  corporation,  or  after  the  revocation 
of  the  designation,  the  corporation  must  make  a  new  designa- 
tion, or  be  subject  to  the  provisions  and  penalties  of  this 
chapter. 

Certificate  of  place  where  summons  may  "be  served  on;   recording: 

See  post,  §  1163. 

Legislation  §  406.  1.  Addition  by  Stats.  1901,  p.  353;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  630.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  407.  Foreign  railway  corporations,  rights  of  in  this  state. 
Every  railway  or  other  corporation  organized  for  the  purpose 
of  carrying  freight  or  passengers  under  or  by  virtue  of  the 
laws  of  the  United  States,  or  of  any  state  or  territory  thereof, 
may  build  railroads,  exercise  the  right  of  eminent  domain,  and 
transact  any  other  business  which  it  might  do  if  it  were  created 
and  organized  under  or  by  virtue  of  the  laws  of  this  state,  and 
has  the  same  rights,  privileges,  and  immunities,  and  is  subject 
to  the  same  laws,  penalties,  obligations,  and  burdens  as  if 
created  or  organized  under  and  by  virtue  of  the  laws  of  this 
state.  Nothing  contained  in  this  section  shall  be  construed  to 
exempt  any  corporation  from  any  ditty  or  liability  imposed 
upon  it  by   any   of  the   provisions   of  this   chapter. 

Legislation  §  407.  1.  Addition  by  Stats.  1901,  p.  354;  unconstitu- 
tional.    See  note,  §4,  ante. 

2.  Added  by  Stats.  1905,  p.  631.  See  ante.  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  408.  Foreign  corporations  to  file  certified  copies  of  articles 
of  incorporation.  Every  corporation  organized  under  the  laws 
of  another  state,  territory,  or  of  a  foreign  country,  which  is 
now  doing  business  in  this  state,  or  is  maintaining  an  office 
herein,  or  which  shall  hereafter  do  business  in  this  state  or 


§  410  CIVIL   CODE.  166 

maintain  an  office  herein,  or  which  shall  enter  this  state  for  the 
purpose  of  doing  business  herein,  must  file  in  the  office  of  the 
secretary  of  state  of  the  state  of  California  a  certified  copy 
of  its  articles  of  incorporation,  or  of  its  charter,  or  of  the 
statute  or  statutes,  or  legislative,  or  executive,  or  govern- 
mental act  or  acts  creating  it,  in  eases  where  it  has  been 
created  by  charter,  or  statute,  or  legislative,  or  executive,  or 
governmental  act,  duly  certified  by  the  secretary  of  state,  or 
other  officer  authorized  by  the  law  of  the  jurisdiction  under 
which  such  corporation  is  formed  to  certify  such  copy,  and  a 
certified  copy  thereof,  duly  certified  by  the  secretary  of  state 
of  this  state,  in  the  office  of  the  county  clerk  of  the  county 
where  its  principal  place  of  business  is  located,  and  also  where 
such  corporation  owns  property.  [Amendment  approved 
1907;  Stats.  1907,  p.  559.] 

Legislation  §  408.     1.  Added  by  Stats.  1905,  p.  631. 
2.  Amended   by   Stats.   1907,   p.   559,   adding   "duly   certified   by   the 
secretary  of  state,  or  other  otScer  authorized  by  the  law  of  the  juris- 
diction under  which  such  corporation  is  formed  to  certify  such  copy." 
See  ante,  Legislation  Chapter  VI,  for  code  commissioner's  note. 

§  409.  Foreign  corporations,  fees  to  be  paid  by,  on  filing 
certified  copies  of  articles  of  incorporation.  For  filing  and 
issuing  a  certified  copy  as  required  in  section  four  hundred 
and  eight  of  this  code,  corporations  formed  under  the  laws 
of  another  state,  or  of  a  territory,  or  of  a  foreign  country,  must 
pay  the  same  fees  as  are  paid  by  corporations  formed  under 
the  laws  of  this  state. 

Legislation  §  409.     Added   by   Stats.   1905,   p.   631.     See   ante,   Legis- 
lation Chapter  VI,  for  code  commissioner's  note. 

§  410.  Foreign  corporations  failing  to  comply  with  law. 
Every  corporation  organized  under  the  laws  of  another  state, 
or  territory,  or  of  a  foreign  countiy.  which  shall  neglect  or 
fail,  within  ninety  days  from  the  taking  effect  of  this  section, 
to  comply  with  the  conditions  of  sections  408  and  409  of  this 
code,  shall  be  subject  to  a  fine  of  not  less  than  five  hundred 
dollars,  to  be  recovered  in  any  court  of  competent  jurisdiction ; 
and  it  is  hereby  made  the  duty  of  the  secretary  of  state,  as  he 
may  be  advised  that  corporations  are  doing  business  in  contra- 
vention of  sections  408  and  409  of  this  code,  to  report  the  fact 
to  the  governor,  who  shall  instruct  (1)  the  district  attorney  of 
the  county  wherein  such  corporation  has  its  principal  place  of 
business,  or  (2)  the  attorney  general  of  the  state,  or  both,  as 
soon  as  practicable,  to  institute  proceedings  to  recover  the 
fine  provided  for  in  this  section,  and  the  amount  so  recovered 
must  be  paid  into  the  state  treasury  to  the  credit  of  the  general 
fund  of  the  state;  in  addition  to  which  penalty,  no  foreign 


409.     Repealed.     (In    effect    90    days    from    and    after    ^Pril    27. 
19*       Stats.    1917.   Chap.   216.)  Civ.   Code,   1917. 


410.      Repealed.     (In    effect    90    days    from    and    after    April    27, 
1917.     Stats.   1917,   Chap.   216.)  Civ.   Code,  1917. 


167  FOREIGN  CORPORATIONS.  §  410 

corporation  which  shall  fail  to  comply  with  sections  408  and 
409  of  this  code  can  maintain  any  suit  or  action  in  any  of  the 
courts  of  this  state,  or  acquire  or  convey  any  legal  title  to  any 
real  property  within  this  state,  until  it  has  complied  with  said 
sections;  provided,  that  any  such  corporation  which,  prior  to 
the  eio'hth  day  of  March,  nineteen  hundred  and  one,  shall  have 
complied  with  the  provisions  of  the  act  entitled  "An  act  to 
amend  'An  act  in  relation  to  foreisjn  corporations.'  approved 
April  first,  eighteen  hundred  and  seventy-two,"  approved 
March  seventeenth,  eighteen  hundred  and  ninety-nine,  is  ex- 
empted from  the  provisions  of  this  section  and  the  two  sec- 
tions next  preceding.  [Amendment  approved  1911 ;  Stats. 
1911,  p.  1113.] 

Legislation  §  410.  1.  Added  by  Stats.  1905,  p.  631.  See  ante,  Legis- 
lation Chapter  VI,  for  code  commissioner's  note.  As  enacted  in  1905 
it  read:  "Every  corporation  orofanized  under  tlie  laws  of  another  state, 
territory,  or  of  a  foreign  country,  which  shall  neglect  or  fail,  within 
ninety  days  from  the  taking  effect  of  this  section,  to  comply  with 
the  conditions  of  sections  four  hundred  and  eight  and  four  hundred 
and  nine  of  this  code,  shall  be  subject  to  a  fine  of  not  less  than  five 
hundred  dollars,  to  be  recovered  in  any  court  of  competent  jurisdic- 
tion; and  it  is  hereby  made  the  duty  of  the  secretary  of  state,  as  he 
may  be  advised  that  corporations  are  doing  business  in  contravention 
of  sections  four  hundred  and  eight  and  four  hundred  and  nine  of  this 
code,  to  report  the  fact  to  the  governor,  who  shall  instruct  the  district 
attorney  of  the  county  wherein  such  corporation  has  its  principal  place 
of  business,  or  the  attorney-general  of  the  state,  or  both,  as  soon  as 
practicable,  to  institute  proceedings  to  recover  the  fine  provided  for 
in  this  section,  and  the  amount  so  recovered  must  be  paid  into  the 
state  treasury  to  the  credit  of  the  general  fund  of  the  state;  in  addi- 
tion to  which  penalty,  no  foreign  corporation  which  shall  fail  to  com- 
ply with  sections  four  hundred  and  eight  and  four  hundred  and  nine 
of  this  code  can  maintain  any  suit  or  action  in  any  of  the  courts  of 
this  state  until  it  has  complied  with  said  section;  provided,  that  any 
such  corporation  which,  prior  to  the  eighth  day  of  March,  nineteen 
hundred  and  one,  shall  have  complied  with  the  provisions  of  the  act 
entitled  'An  act  to  amend  "An  act  in  relation  to  foreign  corporations." 
approved  April  one,  eighteen  hundred  and  seventy-two,'  approved 
March  seventeen,  eighteen  hundred  and  ninety-nine,  is  exempted  from 
the  provisions  of  this  section  ami  the  two  sections  next  preceding." 
2.  Amended  by  Stats.  1911,  p.   1113. 


414  CIVIL    CODE.  168 


TITLE  11. 
Insurance  Corporations. 

Chapter  I.     General  Provisions.     §§  414-422. 

II.     Fire  and  Marine  Insurance  Corporations.     §§  424-432. 

III.  Mutual  Life,  Health,  and   Accident  Insurance   Corporations. 

§§  437-452. 

IV.  Mutual  Benefit  and  Life  Associations.     §§  452a,  453. 

V.     Corporations  to  Discover  Fire  and  Save  Property  and  Human 
Life  from  Destruction  Thereby.     §§  453a-453c. 
VI.     Life,  Health,  Accident,  and  Annuity  or  Endowment  Insurance 
on  the  Assessment  Plan.     §§  453d-453p. 
VII.     Title  Insurance  Corporations.     §§  453s-453z. 
VIII.     Mortgage  Insurance.     §§  453aa-453hh. 

Legislation  Title  II.  When  enacted  in  1872,  Title  II  contained  Chap- 
ters I-III.  Chapters  IV-VI  were  added  in  1905.  See  tits.  "Legisla- 
tion" under  these  chapters  and  under  the  sections  constituting  the  same. 

CHAPTER  I. 

General  Provisions. 

§  414.  Subscriptions  to  capital  stock  opened,  and  how  collected. 

§  415.  Purchase  and  conveyance  of  real  estate. 

§  416.  Policies,  how  issued  and  by  whom  signed. 

§  417.  Dividends,  of  what,  and  when  declared. 

§  418.  Directors  liable  for  loss  on  insurance  in  certain  cases. 

§  419.  Capital  to  be  at  least  two  hundred  thousand  dollars.      [Eepealed.] 

§  420.  Exception,  capital  of  one  hundred  thousand  dollars.     [Repealed.] 

§  421.  Investment  of  capital.     [Repealed.] 

§  421.  Legal  investments  of  insurance  companies. 

§  422.  Report  on  stocks  and  bonds  held  by  insurance  companies.     How 
valued. 

§  414.  Subscriptions  to  capital  stock  opened,  and  how  col- 
lected. After  the  secretary  of  state  issues  the  certifieate  of  in- 
corporation, as  provided  in  article  one,  chapter  one,  title  one,  of 
this  part,  the  directors  named  in  the  articles  of  incorporation 
must  proceed  in  the  manner  specified,  or  in  their  by-laws,  or  if 
none,  then  in  such  manner  as  the}'  may  by  order  adopt,  to 
open  books  of  subscription  to  the  capital  stock  then  unsub- 
scribed, and  to  secnre  subscriptions  to  the  full  amount  of  the 
tixed  capital ;  to  levy  assessments  and  installments  thereon, 
and  to  collect  the  same,  as  in  chapter  two  of  title  one  provided. 

Insurance.     In  general:  See  post,  §§  2527-2766. 

Legislation  §  414.  1.  Enacted  March  21.  1872;  based  on  Stats.  1S65- 
66,  p.  755,  S  S;  p.  743,  §  14. 

2.  Amendmojit  by  Stats.  1901,  ]>.  354;  unconstitutional.  See  note, 
§  4,  ante. 


169  GENERAL  PROVISIONS INSURANCE  CORPORATIONS.         §  416 

§  415.  Purchase  and  conveyance  of  real  estate.  No  insur- 
ance corporatio]!  may  purchase,  hold  or  convey  real  estate,  ex- 
cept as  hereinafter  set  forth,  to  wit : 

1.  The  buildino;  in  which  it  has  its  principal  office  and  the 
land  npon  which  it  stands. 

2.  Also,  such  as  may  be  requisite  for  its  accommodation  in 
the  convenient  transaction  of  its  business. 

3.  Also,  such  as  may  be  conveyed  to  it,  or  to  any  person  for 
it,  by  way  of  mortj^ag^e,  or  in  trust  or  otherwise,  to  secure  or 
provide  for  the  payment  of  loans  previously  contracted  or  for 
moneys  due. 

4.  Also  such  as  may  be  purchased  at  sales  upon  deeds  of 
trust,  or  judgments  obtained  or  made  for  such  loans  or  debts; 

5.  Also  such  as  may  be  conveyed  to  it  in  satisfaction  of 
debts  previously  contracted  in  the  course  of  its  dealings. 

All  such  real  estate,  mentioned  in  subdivisions  three,  four 
and  five,  so  acquired,  Avhich  is  not  requisite  for  the  accommo- 
dation of  such  corporation  in  the  transaction  of  its  business, 
must  be  sold  and  disposed  of  within  five  years  after  such  cor- 
poration acquired  title  to  the  same.  [Amendment  approved 
1905;  Stats.  1905,  p.  21.] 

Legislation  §  415.  1.  Enacted  March  21,  1872  (based  on  Stats.  1865- 
66,  p.  756;  Stats.  1867-68,  p.  341),  and  then  read:  "No  insurance  cor- 
poration must  purchase,  hold,  or  convey  real  estate,  except  as  herein- 
after set  forth,  to  wit:  1.  Such  as  is  requisite  for  its  accommodation 
in  the  convenient  transaction  of  its  business,  not  exceeding  in  value 
one  hundred  and  fifty  thousand  dollars;  2.  Such  as  is  conveyed  to  it, 
or  to  any  person  for  it,  by  way  of  mortgage  or  in  trust,  or  otherwise, 
to  secure  or  provide  for  the  payment  of  loans  previously  contracted, 
or  for  moneys  due;  3.  Such  as  is  purchased  at  sales  upon  deeds  of 
trust  or  judgments  obtained  or  made  for  such  loans  or  debts;  4.  Such 
as  is  conveyed  to  it  in  satisfaction  of  debts  previously  eonfraeted  in 
the  course  of  its  dealings.  All  such  real  estate  so  acquired,  which  is 
not  requisite  for  the  accommodation  of  such  corporation  in  the  trans- 
action of  its  business,  must  be  sold  and  disposed  of  within  five  years 
after  such  corporation  acquired  title  to  the  same.  No  such  real  estate 
must  be  held  for  a  longer  period  than  five  years,  unless  the  corpora- 
tion first  procures  a  certificate  from  the  insurance  commissioner  that 
the  interest  of  the  corporation  will  suffer  materially  by  a  forced  sale 
of  such  real  estate,  in  which  event  the  time  for  the  sale  may  be  ex- 
tended to  such  time  as  the  insurance  commissioner  directs  in  the  cer- 
tificate." 

2.  Amendment  by  Stats.  1901,  p.  354;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  21. 

§  416.     Policies,    how    issued    and    by    whom    signed.     All 

policies  made  by  insurance  corporations  must  be  subscribed 
by  the  president  or  vice-president,  or  in  ease  of  the  death, 
absence,  or  disability  of  those  officers,  by  any  two  of  the 
directors,  and  counter-signed  by  the  secretary  of  the  corpora- 


§  421  CIVIL  CODE.  170 

tion.  All  such  policies  are  as  binding  and  obligatory  npon 
the  corporation  as  if  executed  over  the  corporate  seal. 

Legislation  §  416.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
-  p.  748,  §  20. 

§  417.  Dividends,  of  what,  and  when  declared.  The  direct- 
ors of  every  insurance  corporation,  at  such  times  as  their  by- 
laws provide,  must  make,  declare,  and  pay  to  the  stockholders 
dividends  of  so  much  of  the  net  profits  of  the  corporate  busi- 
ness and  interest  on  capital  invested  as  to  them  appears 
advisable ;  but  the  moneys  received  and  notes  taken  for 
premium  on  risks  which  are  undetermined  and  outstanding  at 
the  time  of  making  the  dividend  must  not  be  treated  as  profits, 
nor  divided,  except  as  provided  in  chapter  two  of  this  title. 
Declaring  dividends:  See  ante,  §  309. 

Legislation  §  417.     1.  Enacted  March  21.  1872;  based  on  Stats.  1865- 
66,  p.   748,  §  21. 

2.  Amendment   by   Stats.    1901,   p.    355;    unconstitutional.     See   note, 
§  4,  ante. 

§  418.     Directors  liable  for  loss  on  insurance  in  certain  cases. 

If  any  insurance  corporation  is  under  liabilities  for  losses  to 
an  amount  equal  to  its  capital  stock,  and  the  president  or 
directors,  after  knowing  the  same,  make  any  new  or  further 
insurance,  the  estates  of  all  who  make  such  insurance,  or  as- 
sent thereto,  are  severally  and  .jointly  liable  for  the  amount 
of  any  loss  which  takes  place  under  such  insurance. 

Legislation  §  418.     1.  Enacted  March  21,  1872;  based  on  Stats.  1865- 

66,  p.  743,  §  13. 

2.  Amendment   by   Stats.   1901,   p.   355;   unconstitutional.     See   note, 

§  4,  ante. 

§  419.     Capital  to  be  at  least  two  hundred  thousand  dollars. 

[Repealed  1907;  Stats.  1907,  p.  141.] 

Legislation  §  419.     1.  Enacted  March   21,  1872. 

2.  Amended  by   Code  Amdts.   1873-74,  p.  269. 

3.  Amended  by  Code  Amdts.  1877-78,  p.  80. 

4.  Amendment   by   Stats.    1901,    p.   355;    unconstitutional.     See   note, 
§  4,  ante. 

5.  Eepealed  by  Stats.  1907,  p.   141. 

§  420.     Exception,  capital  of  one  hundred  thousand  dollars. 

[Repealed  1907;  Stats.  1907,  p.  141.] 

Legislation  §  420.     1.   Added  by  Code  Amdts.  1877-78,  p.  80. 
2.  Repealed  by  Stats.  1907,  p.  ill. 

§  421.     Investment  of  capital.     [Repealed  1907 ;  Stats.  1907, 
p.  597.] 

There  is  another  section  of  this  number.     See  next  section. 
Legislation  §  421.     1.   Addition    l\v    Stats.    1901,    p.    355;    unconstitu- 
tional.    See  note,  §  4,  ante. 


421.  Legal  Investments  of  Insurance  Companies.  I.  Corpora- 
tions orgranized  under  the  laws  of  this  state  for  the  transaction 
of  any  VAnd  of  insurance  business  authorized  by  such  laws  may 
invest  their  capital,  surplus  and  accumulations  in  the  purchase 
of,  or  loans  upon,  any  of  the  securities  specified  in  [the  follow- 
ing]   subdivisions,    [to    wit:] 

[(a)]  Bonds  or  interest-bearing  notes  or  obligations  of  the 
United  States  or  those  for  which  the  faith  and  credit  of  the 
T'nited  States  are  pledged  for  the  payment  of  principal  and 
interest. 

[(b)  Bonds  or  interest-bearing  notes  or  obligations  of  the 
Dominion  of  Canada  or  any  province  of  the  Dominion  of  Canada, 
or  those  for  which  the  faith  and  credit  of  the  Dominion  of 
Canada  or  any  province  of  the  Dominion  of  Canada  are  pledged 
for    the    payment    of    principal    and    interest.] 

[(c)]  Bonds  of  this  state  or  those  for  which  the  faith  and 
credit  of  the  State  of  California  are  pledged  for  the  payment 
of  principal  and  interest,  and  bonds  of  any  other  state  [or  ter- 
ritory] in  the  United  States  that  has  not,  within  five  years  next 
preceding  such  investment  by  such  insurance  company,  defaulted 
in  payment  of  any  part  of  either  principal  or  interest  due  upon 
any   legally  authorized   bond  issue. 

[(d)]  Bonds  or  interest-bearing  notes  or  obligations  issued 
under  authority  of  law  by  any  [city,  city  and  county,]  county, 
municipality,  or  school  district  in  this  state  or  in  any  other  state 
or  territory  of  the  United  States  [or  in  any  ppovince  of  the 
Dominion  of  Canada];  provided,  that  said  [city,  city  and  county,] 
county,  municipality,  or  school  district,  or  the  state,  territory 
[or  province]  in  which  it  is  located  has  not  within  two  years 
next  preceding  such  investment  by  such  insurance  company 
defaulted  in  the  payment  of  any  part  of  either  principal  or  inter- 
est  due   upon   any   legally   authorized   bond   issue. 

[(e)l  Bonds  of  any  permanent  road  division  in  this  state, 
[and  bonds  of  any  reclamation  district,  irrigation  district,  munici- 
pal water  district,  county  water  works  district,  or  of  any  other 
district,  which  are,  by  the  express  terms  of  the  law  of  this 
state,  made  legal  investments  for  savings  banks  or  insurance 
companies.] 

r(f)]  Notes  or  bonds  secured  [by  mortgage]  or  deed  of  trust 
or  other  lien  upon  [improved  or  unimproved  unincumbered  real 
property;]  provided,  that  the  principal  .so  loaned  or  the  entire 
note  or  bond  issue  so  secured  shnll  not  exceed  sixty  per  centum 
of  the  market  value  of  such  real  estate,  or  of  such  real  estate 
with  improvements  taken  as  security  at  the  date  of  investment; 
provided,  also,  in  case  said  loan  is  made,  or  said  note  or  bond 
issue  created  for  a  building  loan  on  real  estate,  that  at  no  time 
shall  the  principal  so  loaned,  or  the  entire  outstanding  note  or 
bond   issue  exceed  sixty  per  centum   of  the  market  value  of  the 


real  estate  and  the  actual  cost  of  the  improvements  thereon 
taken  as  security[;  provided,  also,  that  real  property  shall  not 
be  deemed  to  be  incumbered  or  subject  to  lien  within  the  mean- 
ing of  tliis  section  by  reason  of  the  existence  of  tax  liens  or  out- 
standing mineral,  oil  or  timber  rights,  rights  of  way,  sewer 
rights,  rights  in  walls,  nor  by  reason  of  building  restrictions  or 
other  restrictive  covenants,  nor  when  such  real  property  is  sub- 
ject to  lease  under  which  rents  or  profits  are  reserved  to  the 
owner;  provided,  that  security  for  such  loan  is  a  first  lien  upon 
such  real  property  and  that  there  is  no  condition  or  right  of 
re-entry  or  forfeiture  under  which  such  lien  can  be  cut  off,  sub- 
ordinated  or  otherwise   disturbed.] 

[(g)]  Notes  or  lionds  secured  hy  niortg'age  or  deed  of  trust, 
payment  of  which  is  guaranteed  by  a  policy  of  mortgage  insur- 
ance, and  mortgage  participation  certificates,  issued  by  a  mort- 
gage insurance  company  in  accordance  with  the  provisions  of 
chapter  eight  of  title  two  of  part  four  of  division  first  of  the 
Civil  Code;  provided,  that  no  insurance  corporation  shall  make 
any  investment  in  any  of  the  securities  [hereinbefore  In  this 
section  specified  at  a  cost]  exceeding  the  market  value  of  such 
security,    at    the    date    of   such    investment. 

[(h)   Collateral    trust    bonds    or    notes    when    secured    by   either 

[(I)  Deposit  of  bonds  or  notes  authorized  for  investment  by 
this  section  of  a  market  value  at  least  fifteen  per  centum  In 
excess  of  the  par  value  of  the  collateral  trust  bonds  or  notes 
issued;    or 

[(2)  Deposit  of  bonds  authorized  for  investment  by  this  section 
and  other  securities  of  a  combined  market  value  at  least  twenty 
per  centum  In  excess  of  the  par  value  of  the  collateral  trust 
bonds  or  notes  issued;  provided,  that  the  part  value  of  said  col- 
lateral trust  bonds  or  notes  shall  in  no  case  exceed  the  market 
value  of  that  portion  of  the  security  represented  by  bonds 
authorized  for  investment   by  this  section. 

[(3)  Deposit  of  any  notes  or  bonds  authorized  for  Investment 
by  this  section  and  other  securities  of  a  combined  market  value 
of  at  least  thirty  per  centum  in  excess  of  the  par  value  of  the 
collateral  trust  bonds  or  notes  issued;  provided,  that  the  par 
value  of  such  collateral  trust  bonds  or  notes  issued  shall  In  no 
case  exceed  the  market  value  of  that  portion  of  the  security 
represented  by  notes  or  bonds  hereinbefore  in  this  section  author- 
ized for  investment;  provided,  further,  that  the  collateral  pledged 
consist  of  bonds  authorized  for  investment  by  this  section  of  the 
market  value  of  at  least  seventy-five  per  centum  of  the  par  value 
of    such    collateral    trust    bonds   or    notes    Issued.] 

[II.]  Corporations  organized  for  and  engaged  in  the  business 
of  flre,  life  or  marine  insurance,  may,  after  the  investment  of 
two  hundred  thousand  dollars,  and  corporations  organized  for  and 
engaged   in   the   business   of   transacting  any   other  kind  of   insur- 


ance  authorized  by  law,  except  mortgage  insurance,  may  also, 
after  the  investment  of  one  hundred  thousand  dollars  in  any  of 
the  securities  specified  in  subdivision  [I]  of  this  section,  invest 
the  balance  of  their  capital,  surplus  and  any  accumulations  in 
the  purchase  of  or  loans  upon  the  stock  of  any  corporation 
(except  a  mining'  corporation)  organized  and  carrying  on  busi- 
ness under  the  laws  of  this  state,  or  the  laws  of  the  United 
States,  which  stocks  have,  at  the  date  of  such  investment,  a 
market  value  of  not  less  than  their  paid-in  value,  or  in  the  pur- 
chase of,  or  loans  upon,  interest-bearing  bonds,  [notes,  or  other 
obligations]  issued  by  a  corporation  organized  under  the  laws  of 
any  state  or  territory  in  the  United  States,  [or  bonds  of  any 
permanent  road  division,  reclamation  district,  irrigation  district, 
or.  any  other  district  of  any  state  which  are  legal  Investments  for 
savings  banks  of  this  state.  Nothing  herein  shall  authorize  the 
purchase  of  or  loans  upon  such  obligations  of  any  corporation  or 
district  which  within  five  (5)  years  next  preceding  shall  have 
defaulted  In  payment  of  any  part  of  either  principal  or  interest 
of  any  bond,  note  or  obligation  offered.  Stocks,  bonds,  notes  or 
obligations  must,  in  each  case,  be  rated  as  first-class  securities;] 
provided,  that  any  inv^estment  made,  under  the  provisions  of  this 
subdivision  of  this  section  shall  be  approved  by  a  vote  of  two- 
thirds  of  all  the  directors  of  the  investing  corporation.  Such 
approval  shall  be  entered  upon  the  records  or  minutes  of  such 
corporation.  Such  entry  must  show  the  fact  of  making  such 
investment,  the  amount  thereof,  the  name  of  each  director  vot- 
ing to  approve  the  same,  the  amount,  character  and  value  of  the 
security  purchased  or  taken  as  collateral,  and  if  the  investment 
be  a  loan,  the  name  of  the  borrower,  the  rate  of  interest  thereon, 
and  the  date  when  the  loan  will  become  due  or  payable.  It  shall 
be  the  duty  of  the  secretary  of  any  such  investing  corporation 
to  report  in  writing  during  the  months  of  January  and  July  of 
each  year  to  the  insurance  commissioner  the  data  above  set 
forth  respecting  each  such  investment,  and  the  insurance  com- 
missioner may,  if  any  such  investment  is  not  approved  by  him, 
rf  quire   the  corporation  to   sell  or  dispose   of  the  same. 

[III.]  Life  insurance  companies  may  also  loan  upon  their  own 
policies,  provided,  that  the  amount  so  loaned  upon  each  policy 
shall  not  exceed  the  reserve  against  [such]  policy  at  the  time 
said  loan  was  made;  provided,  further,  that  no  policy  loans 
whatever  .shall  ever  be  used  as  security  which  may  be  deposited 
with  the  insurance  commissioner  under  section  six  hundred 
Ihirty-four  of  the  Political  Code.  [The  amount  loaned  by  a  com- 
pany upon  its  own  policies  shall  be  credited  to  said  company  In 
determining  the  amount  of  deposit  required  to  comply  with  the 
provisions  of  section  six  hundred  thirty-four  of  the  Political 
Code,  and  such  loans  shall  be  deducted  from  the  net  value  of  the 
registered   policies.] 


[IV.]  Any  insurance  company  of  this  state  doing  business  in 
any  foreign  country  may  invest  so  much  of  its  funds  as  are 
required  to  meet  its  obligation  incurred  in  such  foreign  country 
and  in  conformity  to  the  la^^s  thereof,  in  the  same  kind  of  secur- 
ities issued  in  such  foreign  country  that  such  company  is  by  law- 
allowed  to  invest  in  this  state,  arid  subject  to  the  limitations 
imposed  by  law  in  this  state.  (In  effect  90  days  from  and  after 
April   29,    1921.     Stats.    1921,   Chap.    824.)  Civ.  Code,  1921. 


421.  Legal  Investments  of  Insurance  Companies.  Corpora- 
tions organized  under  the  laws  of  this  state  for  the  transaction 
of  any  kind  of  insurance  business  authorized  by  such  laws  may 
invest  their  capital,  surplus  and  accumulations  in  the  purchase 
of,  or  loans  upon  any  of  the  securities  specified  in  subdivisions 
one   to    five    inclusive    of   this    section. 

1.  Bonds  or  interest-bearing  notes  or  obligations  of  the  United 
States  or  those  for  which  the  faith  and  credit  of  the  United 
States  are  pledged   for  the  payment  of  principal   and   interest. 

2.  Bonds'  of  this  state  or  those  for  which  the  faith  and  credit 
of  the  State  of  California  are  pledged  for  tlie  payment  of  prin- 
cipal and  interest  and  bonds  of  any  other  state  in  the  United 
States  that  has  not,  within  five  years  next  preceding  such  in- 
vestment by  such  insurance  company,  defaulted  in  payment  of 
any  part  of  either  principal  or  interest  due  upon  any  legally 
authorized   bond   issue. 

3.  Bonds  or  interest-bearing  notes  or  obligations  issued  under 
authority  of  law  by  any  county,  municipality  or  school  district 
in  this  state,  or  in  any  other  state  or  territory  of  the  United 
States;  provided,  that  said  county,  municipality  or  school  dis- 
trict Or  the  state  or  territory  in  which  it  is  located  has  not, 
within  two  years  next  preceding  such  investment  by  such  insur- 
ance company,  defaulted  in  payment  of  any  part  of  either  prin- 
cipal  or   interest   due   upon   any  legally   authorized   bond   issue. 

4.  Bonds  of  any  permanent  road  division  in  this  state,  and 
any  irrigation  district  bonds  which  the  law  may  now  or  here- 
after authorize  as  legal  investments  for  insurance  companies; 
provided,  that  the  total  amount  of  bonds  issued  by  any  such  irriga- 
tion district  does  not  exceed  sixty  per  centum  of  the  aggregate 
market  value  of  the  lands  within  such  district,  and  of  the  water, 
water  rights,  canals,  reservoirs,  reservoir  sites  and  irrigation 
works  owned  or  to  be  acquired  or  constructed  with  the  proceeds 
of  any  such  bonds,  by  such  district,  such  facts  in  reference  to 
bonds  of  irrigation  districts  to  be  determined  by  a  commission 
now  or  hereafter  authorized  by  law  to  ascertain  and  report  upon 
such    facts. 

5.  (a)  [Notes  or  bonds  secured  by  first  mortgage  or  deed  of 
trust  or  other  first  lien  upon  real  estate,  improved  or  unimproved; 
provided,  that  the  principal  so  loaned  or  the  entire  note  or  bond 
issue  so  secured  shall  not  exceed  sixty  per  centum  of  the  market 
value  of  such  real  estate,  or  of  such  real  estate  with  improvements 
taken  as  security  at  the  date  of  investment;  provided,  als/o,  in 
case  said  loan  is  made,  or  said  note  or  bond  issue  created  for  a 
building  loan  on  real  estate,  that  at  no  time  shall  the  principal 
so  loaned  or  the  entire  outstanding  note  or  bond  issued  exceed 
sixty  per  centum  of  the  market  value  of  the  real  estate  and  the 
actual   cost   of   the   improvements   thereon  taken   as   security;   or 

(b)     Notes  or  bonds  secured  by  mortgage  or  deed  of  trust,  pay- 


2.) 


ment  of  which  is  guaranteed  by  a  policy  of  mortgage  insurance, 
and  mortgage  participation  certificates,  issued  by  a  mortgage  in- 
surance company  in  accordance  with  the  provisions  of  chapter 
eight  of  title  two  of  part  four  of  division  first  of  the  Civil  Code; 
provided,  that  no  insiurance  corporation  shall  make  any  invest- 
ment in  any  of  the  securities  specified  in  subdivisions  one,  two, 
three,  four  and  five  of  this  section  in  an  amount  exceeding  the 
maiket  value  of  such  security,  at  the  date  of  such  investment. 

6.  Corporations  organized  for  and  engaged  in  the  business  of 
Are,  life  or  marine  insurance,  may,  after  the  investment  of  two 
hundred  thousand  dollars,  and  corporations  organized  for  and  en- 
gaged in  the  business  of  transacting  any  other  kind  of  insurance 
authorized  by  law,  except  mortgage  insurance,  may  also,  after  the 
investment  of  one  hundred  thousand  dollars  in  any  of  the  securities 
specified  in  subdivisions  one,  two,  three,  four  and  five  of  this  sec- 
tion, invest  the  balance  of  their  capital,  surplus  and  any  accumu- 
lations in  the  purchase  of  or  loans  upon  the  stock  of  any  corpora- 
tion (except  a  mining  corporation)  organized  and  carrying  on  busi- 
ness under  the  laws  of  this  state,  or  the  laws  of  the  United  States, 
which  stocks  have,  at  the  date  of  such  investment,  a-  market  value 
of  not  less  than  their  paid-in  value,  or  in  the  purchase  of,  or 
loans  upon,  interes-t-bearing  bonds  issued  by  a  corporation  organ- 
ized under  the  laws  of  any  state  or  territory  in  the  United  States, 
which  corporation  has  net,  within  five  years  next  preceding  the 
date  of  such  investment,  defaulted  in  payment  of  any  part  of 
either  principal  or  interest  of  any  bond  of  the  issue  of  which  the 
bonds  which  comprise  such  investment  form  a  part,  and  which 
stocks  or  bonds  must,  in  each  case,  be  rated  as  first-class  securi- 
ties; provided,  that  any  investment  made,  under  the  provisions  of 
this  subdivision  of  this  section  shall  be  approved  by  vote  of  two- 
thirds  of  all  the  directors  of  the  investing  corporation.  Such 
approval  shall  be  entered  upon  the  records  or  minutes  of  such 
corporation.  Such  entry  must  show  the  fact  of  making  such 
investment,  the  amount  thereof,  the  name  of  each  director  voting 
to  approve  the  same,  the  amount,  character  and  value  of  the 
security  purchased  or  taken  as  collateral,  and  if  the  investment 
be  a  loan,  the  name  of  the  borrower,  the  rate  of  interest  thereon, 
and  the  date  when  the  loan  will  become  due  or  payable.  It  shall 
be  the  duty  of  the  secretary  of  any  such  investing  corporation  to 
report  in  writing  during  the  months  of  January  and  July  of  each 
year  to  the  insurance  commissioner,  the  data  above  set  forth  re- 
specting each  such  investment,  and  the  insurance  commissioner 
may,  if  any  such  investment  is  not  approved  by  him,  require  the 
corporation  to  sell  or  dispose  of  the  same. 

7.  life  insurance  companies  may  also  loan  upon  their  own 
policies;  provided,  that  the  amount  so  loaned  upon  each  policy 
shall  not  exceed  the  reserve  against  said  policy  at  the  time  said 
loan  is  made;  provided,  further,  that  no  policy  loans  whatever  shall 


ever  be  used  as  security  which  may  be  deposited  with  the  insur- 
ance commissioner  under  section  six  hundred  thirty-four  of  the 
Political  Code;  and  provided,  further,  that  whenever  any  such 
loan  in  any  amount  is  made  on  a  policy  registered  with  the  insur- 
ance commissioner  under  said  section  six  hundred  thirty-four  of 
the  Political  Code,   such  registration  shall  be  forthwitli  canceled. 

[8.  Any  insurance  company  of  this  state  doing  business  In  any 
foreign  country  may  Invest  so  much  of  its  funds  as  are  required 
to  meet  Its  obligation  Incurred  in  such  foreign  country  and  In 
conformity  to  the  laws  thereof,  In  the  same  kind  of  securities 
Issued  In  such  foreign  country  that  such  company  Is  by  law 
allowed  to  Invest  In  this  state,  and  subject  to  the  limitations  Im- 
posed by  law  In  this  state.]  (In  effect  90  days  from  and  after 
Apiil   27,   1917.     Stats.    1917,    Chap.    619.)  Civ.   Code,   1917. 


171  GENERAL  PROVISIONS — INSURANCE  CORPORATIONS.         §  421 

2.  Added  by  Stats.  1905,  p.  34;  approved  March  3,  r905. 

3.  Repealed  by  Stats.  1907,  p.  597;  the  repealing  act  reading,  "Sec- 
tion 1.  Section  four  hundred  and  twenty-one  of  the  Civil  Code,  as 
approved  March  3,  1905,  is  hereby  repealed.  Sec.  2.  Nothing  herein 
contained  shall  be  deemed  to  repeal  any  of  the  provisions  of  section 
four  hundred  and  twenty-one  of  said  code,  as  approved  March  21,  1905, 
and  any  rights  acquired  under  said  section  421,  as  approved  March 
3,  1905,  shall  be  preserved  under  the  provisions  of  said  section  four 
hundred  and  twenty-one,  as  approved  March  21,  1905."  The  code 
commissioner  says  of  this  repeal:  "There  being  two  sections  421,  re- 
ferring to  the  same  subject,  one  approved  March  3,  1905,  and"  the 
other  approved  March  21,  1905,  the  former  was  repealed  and  the  latter 
left  intact.  Note  the  provisions  of  sec.  2  of  the  repealing  act.  (Stats. 
1907,  p.  597.)" 

§  421.  Legal  investments  of  insurance  companies.  Cor- 
porations organized  under  the  laws  of  this  state  for  the  trans- 
action of  any  kind  of  insurance  business  authorized  by  such 
laAvs  may  invest  their  capital,  surplus  and  accumulations  in 
the  purchase  of,  or  loans  upon  any  of  the  securities  specified 
in  subdivisions  one  to  five  inclusive  of  this  section. 

1.  United  States  bonds.  Bonds  or  interest-bearing  notes  or 
obligations  of  the  United  States  or  those  for  which  the  faith 
and  credit  of  the  United  States  are  pledged  for  the  payment 
of  principal  and  interest. 

2.  State  bonds.  Bonds  of  this  state  or  those  for  which  the 
faith  and  credit  of  the  state  of  California  are  pledged  for  the 
payment  of  principal  and  interest  and  bonds  of  any  other 
state  in  the  United  States  that  has  not,  within  five  years  next 
preceding  such  investment  by  such  insurance  company,  de- 
faulted in  payment  of  any  part  of  either  principal  or  interest 
due  upon  any  legally  authorized  bond  issue. 

3.  County,  etc.,  bonds.  Bonds  or  interest-bearing  notes  or 
obligations  issued  under  authority  of  law  by  any  county, 
municipality  or  school  district  in  this  state  or  in  any  other 
state  or  territory  of  the  United  States;  provided,  that  said 
county,  municipality  or  school  district  or  the  state  or  territory 
in  which  it  is  located  has  not,  within  two  years  next  preceding 
such  investment  by  such  insurance  company,  defaulted  in 
payment  of  any  part  of  either  principal  or  interest  due  upon 
any  legally  authorized  bond  issue. 

4.  Road  division,  etc.,  bonds.  Bonds  of  any  permanent 
road  division  in  this  state,  and  any  irrigation  district  bonds 
which  the  law  may  now  or  hereafter  authorize  as  legal  invest- 
ments for  insurance  companies;  provided,  that  the  total 
amount  of  bonds  issued_J)y  any  such  irrigation  district  does 
not  exceed  sixty  per  centum  of  the  aggregate  market  value 
of  the  lands  within  such  district,  and  of  the  water,  water 
rights,  canals,  reservoirs,  reservoir  sites  and  irrigation  Avorks 


§  421  .  CIVIL   CODE.  172 

owned  or  to  be  acquired  or  constructed  with  the  proceeds  of 
any  such  bonds,  by  such  district,  such  facts  in  reference  to 
bonds  of  irrigation  districts  to  be  determined  by  a  commis- 
sion now  or  hereafter  authorized  by  law-  to  ascertain  and 
report  upon  such  facts. 

5.  First  mortg-age  notes,  (a)  Notes  or  bonds  secured  by 
first  mortgage  or  deed  of  trust  or  other  first  lien  upon  real 
estate,  improved  or  unimproved;  provided,  that  the  principal 
so  loaned  or  the  entire  note  or  bond  issue  so  secured  shall 
not  exceed  sixty  per  centum  of  the  market  value  of  such 
real  estate,  or  of  such  real  estate  with  improvements  taken 
as  security  at  the  date  of  investment ;  provided,  also,  in  case 
said  loan  is  made,  or  said  note  or  bond  issue  created  for  a 
building  loan  on  real  estate,  that  at  no  time  shall  the  principal 
so  loaned  or  the  entire  outstanding  note  or  bond  issue  exceed 
sixty  per  centum  of  the  market  value  of  the  real  estate  and 
the  actual  cost  of  the  improvements  thereon  taken  as  security ; 
or 

(b)  Notes  guaranteed  by  policy  of  mortg-age  insurance. 
Notes  or  bonds  secured  by  mortgage  or  deed  of  trust,  pay- 
ment of  which  is  guaranteed  by  a  policy  of  mortgage  insur- 
ance, and  mortgage  participation  certificates,  issued  by  a 
mortgage  insurance  company  in  accordance  with  the  provi- 
sions of  chapter  VIII  of  title  II  of  part  IV  of  division  first 
<^f  the  Civil  Code ;  provided,  that  no  insurance  corporation 
shall  make  any  investment  in  any  of  the  securities  specified 
in  subdivisions  one,  tAvo,  three,  four  and  five  of  this  section  in 
an  amount  exceeding  the  market  value  of  such  security,  at 
the  date  of  such  investment. 

6.  Investment  of  balance  of  capital.  Corporations  or- 
ganized for  and  engaged  in  the  business  of  fire,  life  or  marine 
insurance,  may,  after  the  investment  of  two  hundred  thou- 
sand dollars,  and  corporations  organized  for  and  engaged  in 
the  business  of  transacting  any  other  kind  of  insurance  au- 
thorized by  law,  except  mortgage  insurance,  may  also,  after 
the  investment  of  one  hundred  thousand  dollars  in  any  of  the 
securities  specified  in  subdivisions  one,  two,  three,  four  and 
five  of  this  section,  invest  the  balance  of  their  capital,  surplus 
and  any  accumulations  in  the  purchase  of  or  loans  upon  the 
stock  of  any  corporation  (except  a  mining  corporation)  or- 
ganized and  carrying  on  business  under  the  laAvs  of  this  state, 
or  the  laws  of  the  United  States,  which  stocks  have,  at  the 
date  of  such  investment,  a  market  value  of  not  less  than  their 
paid-in  value,  or  in  the  purchase  of,  or  loans  upon,  interest- 
l)earing  bonds  issued  by  a  corporation  organized  under  the 
laws  of  any  state  or  territory  in  the  United  States,  which  cor- 


173  GENERAL  PROVISIONS — INSURANCE  CORPORATIONS.        §  421 

poratioii  has  not,  within  five  years  next  preceding  the  date 
of  such  investment,  defaulted  in  payment  of  any  part  of  either 
principal  or  interest  of  any  bond  of  the  issue  of  which  the 
bonds  which  comprise  such  investment  form  a  part,  and  which 
stocks  or  bonds  must,  in  each  case,  be  rated  as  first  class 
securities ;  provided,  that  any  investment  made,  under  the 
provisions  of  this  subdivision  of  this  section  shall  be  approved 
by  vote  of  two  thirds  of  all  the  directors  of  the  investing  cor- 
poration. Such  approval  shall  be  entered  upon  the  records 
or  minutes  of  such  corporation.  Such  entry  must  show  the 
fact  of  making  such  investment,  the  amount  thereof,  the  name 
of  each  director  voting  to  approve  the  same,  the  amount, 
character  and  value  of  the  security  purchased  or  taken  as 
collateral,  and  if  the  investment  be  a  loan,  the  name  of  the 
borrower,  the  rate  of  interest  thereon,  and  the  date  when 
the  loan  will  become  due  or  payable.  It  shall  be  the  duty 
of  the  secretary  of  any  such  investing  corporation  to  report 
in  writing  during  the  months  of  January  and  July  of  each 
year  to  the  insurance  commissioner,  the  data  above  set  forth 
respecting  each  such  investment,  and  the  insurance  commis- 
sioner may,  if  any  such  investment  is  not  approved  by  him, 
require  the  corporation  to  sell  or  dispose  of  the  same. 

7.  Policy  .loans.  Life  insurance  companies  may  also  loan 
upon  their  own  policies ;  provided,  that  the  amount  so  loaned 
upon  each  policy  shall  not  exceed  the  reserve  against  said 
policy  at  the  time  said  loan  is  made ;  provided,  further,  that 
no  policy  loans  whatever  shall  ever  be  used  as  security  which 
may  be  deposited  with  the  insurance  commissioner  under  sec- 
tion six  hundred  thirty-four  of  the  Political  Code;  and  pro- 
vided, further,  that  whenever  any  such  loan  in  any  amount 
is  made  on  a  policy  registered  with  the  insurance  commis- 
sioner under  said  section  six  hundred  thirty-four  of  the 
Political  Code,  such  registration  shall  be  forthwith  canceled. 
[Amendment  approved  1915;  Stats.  1915,  p.  1532.] 

Legislation  §  421.  1.  Addition  by  Stats.  1901,  p.  355;  unconstitu- 
tional.    See  note.  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  628  (approved  March  21,  1905),  differing 
from  the  amendment  of  1907  (see  post),  (1)  in  introductory  paragraph, 
having  "Corporations"  instead  of  "Companies";  (2)  -in  subd.  3,  not 
having  the  words  "and  duly  organized  school  districts"  after  "cities 
and  towns";  (3)  subd.  4  reading,  "4.  In  loans  upon  unencumbered  real 
property,  which  shall  be  worth,  at  the  time  of  the  investment,  at  least, 
forty  per  cent  more  than  the  sum  loaned,  or  upon  merchandise  or 
cereals  in  warehouse,  but  in  no  instance  shall  such  loan  be  made  in 
excess  of  seventy-five  per  cent  of  the  security  taken";  (4)  the  first 
part  of  subd.  G  (down  to  the  word  "jirovided")  reading,  "Corporations 
organized  for  and  engaged  in  the  business  of  fire,  life,  health,  accident 
and  marine  insurance,  may,  after  the  investment  of  two  hundred  thou- 
sand dollars,  and  corporations  formed  or  organized  for  the  transaction 


421  CIVIL   CODE!.  174 

of  business  mi  any  kind  of  insurance  not  enumerated  in  section  four 
hundred  and  nineteen  of  the  Civil  Code  may,  after  the  investment  of 
one  hundred  thousand  dollars,  in  the  manner  provided  in  subdivisions 
one,  two,  three  and  four  of  this  section,  invest  the  balance  of  their 
capital  and  any  accumulations  in  the  purchase  of  or  loans  upon  the 
stock  of  any  corporation  (except  mining  companies)  organized  and 
carrying  on  business  under  the  laws  of  the  state  of  California  which 
have  at  the  time  of  investment  a  market  value  of  not  less  than  their 
paid-in  value,  and  which  are  rated  as  first-class  securities,  or  in  interest- 
bearing  first-mortgage  bonds  of  same  not  in  default  of  interest,"  there- 
after the  subdivision  proceeding  as  at  present;  (5)  subd.  7  having 
"corporations"'  instead  of  "companies"  in  first  line;  (6)  the  section 
then  having  an  eighth  subdivision,  reading,  "S.  Nothing  in  this  sec- 
tion contained  shall  be  construed  as  in  any  wise  affecting  the  provisions 
of  section  four  hundred  and  forty-four  of  this  code." 

3.  Amended  by  Stats.  1907,  p.  S90,  to  read:  "Companies  organized 
under  the  laws  of  this  state  for  the  transaction  of  business  in  any 
kind  of  insurance,  may  invest  their  capital  and  accumulations  in  the 
following  named  securities:  1.  In  the  purchase  of,  or  loans  upon  in- 
terest-bearing bonds  of  the  United  States  government.  2.  In  the  pur- 
chase of,  or  loans  upon  interest-bearing  bonds  of  any  of  the  states  of 
the  United  States,  not  in  default  for  interest  on  such  bonds.  3.  In  the 
purchase  of,  or  loans  upon  interest-bearing  bonds  of  any  of  the  counties 
and  incorporated  cities  and  towns  and  duly  organized  school  districts 
of  any  state  or  territory  of  the  United  States  not  in  default  for  interest 
on  such  bonds.  4.  In  loans  upon  unencumbered  real  property,  no  loan 
to  exceed  sixty  per  cent  of  the  market  value  of  any  jnece  of  real 
estate  to  be  taken  as  security.  5.  Corporations  engaged  in  the  busi- 
ness of  insuring  titles  to  real  estate  may,  after  the  investment  of 
one  hundred  thousand  dollars  in  the  manner  provided  for  in  subdi- 
visions one,  two,  three  and  four  of  this  section,  invest  an  amount 
not  exceeding  fifty  per  cent  of  their  subscribed  capital  stock,  in  the 
preparation  or  purchase  of  the  materials  or  plant  necessary  to  enable 
them  to  engage  in  such  business;  and  such  material  or  plant  shall 
be  deemed  an  asset  valued  at  the  actual  cost  thereof,  in  all  state- 
ments and  proceedings  required  by  law  for  the  ascertainment  and 
determination  of  the  condition  of  such  corporations.  6.  Companies 
organized  for  and  engaged  in  the  business  of  fire,  life,  health,  acci- 
dent and  naarine  insurance,  may,  after  the  investment  of  two  hun- 
dred thousand  dollars,  and  companies  duly  formed  or  organized  for 
the  transaction  of  business  in  any  other  kind  of  insurance  may,  after 
the  investment  of  one  hundred  thousand  dollars,  in  the  manner  pro- 
vided in  subdivisions  one,  two,  three  and  four  of  this  section,  invest 
the  balance  of  their  capital  and  any  accumulations  in  the  purchase  of 
or  loans  upon  the  stock  of  any  corporation  (except  mining  companies)  - 
organized  and  carrying  on  business  under  the  laws  of  the  state  of  Cali- 
fornia which  bave  at  the  time  of  investment  a  market  value  of  not  less 
than  their  paid-in  value,  and  which  are  rated  as  first-class  securities, 
or  in  interest-bearing,  bonds  of  any  corporation  of  any  state  or  terri- 
tory of  the  United  States  not  in  default  of  interest;  provided,  that  a 
two-thirds  vote  of  all  the  directors  of  such  corporations  shall  approve 
such  investment.  It  shall  be  the  duty  of  the  ofiieers  of  such  corpora- 
tion to  report  quarterly  during  the  months  of  January,  April,  July 
and  October  of  each  year  to  the  insurance  commissioner  a  list  of  such 
investments  so  made  by  them,  and  the  insurance  commissioner  may, 
if  such  investments,  or  any  of  them,  seem  injudicious  to  him,  require 
the  sale  of  the  same.     But  no  investment  in  the  securities  named  in  sub- 


175  GENERAL  PROVISIONS — INSURANCE  CORPORATIONS.         §  421 

divisions  one,  two,  three  and  six  of  this  section  must  be  made  in  an 
amount  exceeding  the  market  value  of  such  securities,  at  the  date  of 
such  investment.  7.  life  insurance  companies  may  loan  upon  their  own 
policies;  provided  that  the  amount  so  loaned  upon  each  policy  shall  not 
exceed  the  reserve  against  said  policy  at  the  time  said  loan  is  made; 
provided  further,  that  no  policy  loans  whatever  shall  ever  be  used  as 
security  which  may  be  deposited  with  the  insurance  commissioner  under 
section  six  hundred  and  thirty-four  of  the  Political  Code;  and  provided 
further,  that  whenever  any  such  loan  in  any  amount  is  made  on  a  policy 
registered  with  the  insurance  commissioner  under  said  section  six 
hundred  and  thirty-four  of  the  Political  Code,  such  registration  shall 
be  forthwith  canceled." 

4.  Amended  by  Stats.  1913,  p.  487,  to  read:  "Companies  organized 
under  the  laws  of  this  state  for  the  transaction  of  business  in  any 
kind  of  insurance  may  invest  their  capital  and  accumulations  in  the 
following  named  securities:  l.In  the  purchase  of,  or  loans  upon  interest- 
bearing  bonds  of  the  United  States,  or  those  for  which  the  faith  and 
credit  of  the  United  States  are  pledged  for  the  payment  of  principal 
and  interest.  2.  In  the  purchase  of,  or  loans  upon  interest-bearing 
bonds  of  any  of  the  states  of  the  United  States  not  in  default  for 
interest  on  such  bonds,  including  bonds  of  this  state,  »t  those  for 
which  the  faith  and  credit  of  the  state  of  California  are  pledged 
for  the  payment  of  principal  and  interest.  3.  In  the  purchase  of, 
or  loans  upon  interest-bearing  bonds  of  any  of  the  counties  and  incor- 
porated cities  and  towns  and  duly  organized  school  districts  of  any 
state  or  territory  of  the  United  States  not  in  default  for  interest  on 
such  bonds.  4.  In  the  purchase  of,  or  loans  upon  interest-bearing  bonds 
of  irrigation  districts  as  provided  or  authorized  by  section  8  of  an  act 
entitled  'An  act  relating  to  bonds  of  irrigation  districts,  providing  un- 
der what  circumstances  such  bonds  may  be  made  legal  investments  for 
the  funds  of  banks,  banking  associations,  trust  companies,  insurance 
companies,  and  for  the  state  school  funds  and  trust  funds,  and  provid- 
ing for  the  deposit  of  such  bonds  as  security  for  public  moneys,  and 
providing  for  a  commission  for  approving  certain  bonds  of  irrigation 
districts,  for  a  report  thereon,  for  the  filing  of  such  report,  for  a 
certificate  of  the  state  controller,  and  for  the  recording  of  such  bonds 
in  the  office  of  the  state  controller,'  approved  December  18,  1911. 
5.  In  loans  secured  by  mortgage  or  deed  of  trust  upon  unencumbered 
real  estate,  improved  or  unimproved,  or  in  the  purchase  of,  or  loans 
upon  notes  or  bonds  so  secured;  provided,  that  the  principal  so  loaned, 
or  the  entire  note  or  bond  issue  under  such  mortgage  or  deed  of  trust 
shall  not  exceed' sixty  per  centum  of  the  market  value  of  such  real 
estate  with  improvements  taken  as  security;  and  provided,  further,  in 
case  said  loan  is  made,  or  said  note  or  bond  issue  created  for  a  build- 
ing loan  on  real  estate,  that  at  no  time  shall  the  principal  so  loaned  or 
the  entire  note  or  bond  issue  exceed  sixty  per  centum  of  the  market 
value  of  the  real  estate  and  the  actual  cost  of  the  improvements  thereon 
taken  as  security.  6.  Companies  organized  for  and  engaged  in  the  busi- 
ness of  fire,  life,  health,  accident  and  marine  insurance,  may,  after  the 
investment  of  two  hundred  thousand  dollars,  and  companies  duly  formed 
or  organized  for  the  transaction  of  business  in  any  other  kind  of  insur- 
ance except  mortgage  insurance  may,  after  the  investment  of  one  hun- 
dred thousand  dollars,  in  the  manner  provided  in  subdivisions  1,  2,  3,  4 
and  5  of  this  section,  invest  the  balance  of  their  capital  and  any  ac- 
cumulations in  the  purchase  of  or  loans  upon  the  stock  of  any  corpora- 
tion (except  mining  companies)  organized  and  carrying  on  business  un- 
der the  laws  of  the  state  of  California  which  have  at  th^    ^ime  of  invest- 


§  422  CIVIL  CODE.  176 

meut  a  market  value  of  not  less  than  their  paid-in  value,  and  which 
are  rated  as  first-class  securities,  or  in  interest-bearing  bonds  of  any 
corporation  of  any  state  or  territory  of  the  United  States  not  in  de- 
fault for  interest  on  such  bonds;  provided,  that  a  two-thirds  vote  of  all 
the  directors  of  such  corporation  shall  approve  such  investment.  It 
shall  be  the  duty  of  the  officers  of  such  corporation  to  report  quarterly 
during  the  months  of  .January,  April,  July  and  October  of  each  year 
to  the  insurance  commissioner  a  list  of  such  investments  so  made  by 
them,  and  the  insurance  commissioner  may,  if  such  investment,  or 
any  of  them,  seem  injudicious  to  him,  require  the  sale  of  the  same. 
But  no  investment  in  the  securities  named  in  subdivisions  1,  2,  3, 
4  and  6  of  this  section  must  be  made  in  an  amount  exceeding  the 
market  value  of  such  securities,  at  the  date  of  such  investment. 
7.  Life  insurance  companies  may  loan  upon  their  own  policies;  pro- 
vided, that  the  amount  so  loaned  upon  each  policy  shall  not  exceed 
the  reserve  against  said  policy  at  the  time  said  loan  is  made;  pro- 
vided, further,  that  no  policy  loans  whatever  shall  ever  be  used  as 
security  which  may  be  deposited  with  the  insurance  commissioner 
under  section  634  of  the  Political  Code;  and  provided,  further,  that 
whenever  any  such  loan  in  any  amount  is  made  on  a  policy  registered 
with  the  insurance  commissioner  under  said  section  634  of  the  Political 
Code,  such  registration  shall  be  forthwith  canceled." 

5.  Amended  by  Stats.  1915,  p.  1532.     See  ante,  Legislation  §  421,  for 
repealed  section  of  the  same  number  and  same  subject. 

§  422.  Report  on  stocks  and  bonds  held  by  insurance  com- 
panies. How  valued.  If  any  domestic  insurance  corporation 
shall  have  invested  any  of  its  funds  in  or  loaned  any  of  its 
funds  upon  the  stock,  bonds  or  other  evidences  of  debt  of  other 
corporations  or  of  any  nation,  state,  county,  city,  village, 
school  district,  municipality,  or  other  civil  division  of  any  state, 
pursuant  to  the  laws  of  this  state,  and  the  insurance  commis- 
sion shall  have  reason  to  believe  that  such  stock,  bonds  or.'other 
evidences  of  debt  are  not  amply  secured  or  are  not  yielding 
an  income,  he  may  direct  it  to  report  to  him  under  oath  the 
amount  thereof,  the  security  therefor  and  its  market  value. 
No  stock  and  no  bond  or  other  evidence  of  debt  if  in  default  as 
to  principal  or  interest,  or  if  not  amply  secured,  shall  be  valued 
as  an  asset  of  the  corporation  above  its  market  value.  All 
bonds  or  other  evidences  of  debt  held  by  any  insurance  corpo- 
ration authorized  to  do  business  in  this  state,  if  amply  secured 
and  if  not  in  default  as  to  princii)al  or  interest,  may  in  the  dis- 
cretion of  the  insurance  commissioner,  be  valued  as  follows : 
If  purchased  at  par  at  the  par  value ;  if  purchased  above  or 
below  par,  on  the  basis  of  the  purchase  price  adjusted  so  as  to 
bring  the  value  to  par  at  maturity  and  so  as  to  yield  the  effec- 
tive rate  of  interest  at  which  the  purchase  was  made ;  provided, 
that  the  purchase  price  shall  in  no  case  be  taken  at  a  higher 
figure  than  the  actual  market  value  at  the  time  of  purchase ; 
and  provided,  further,  that  the  insurance  commissioner  shall 
have  full  discretion  in  determining  the  method  of  calculating 
values  according  to  the  foregoing  rule,  and  the  values  found 


177  FIRE  AND  MARINE  INSURANCE  CORPORATIONS.  §  425 

by  him  in  accordance  with  such  method  shall  be  final  and 
binding;  provided,  also,  that  any  such  corporation  may  return 
such  bonds  or  other  evidence  of  debt  at  their  market  value  or 
their  book  value,  but  in  no  event  at  an  aggregate  value  exceed- 
ing the  aggregate  of  the  values  calculated  according  to  the 
foregoing  rule. 

Legislation  §  422.     Added  by  Stats.  1913,  p.  464. 

CHAPTER  II. 
Fire  and  Marine  Insurance  Corporations. 

§  424.     Payment    of    subscriptions.     Capital    to    be    all    paid    in    twelve 

months. 
§  425.     Certificate  of  capital  stock  paid  up  to  be  filed,  and  when. 
§  426.     Property  which  may  be  insured. 
§  427.     Funds  may  be  invested,  how.     [Repealed.] 
§  428.     Limit  of  one  risk. 

§  429.     Ainounts  to  be  reserved  before  making  dividends. 
§  430.     Reservation  by  companies  with  less  than  two  hundred  thousand 

dollars  capital. 
§  431.     Amounts  to  be  reserved  by  life  insurance  companies.     [Repealed.] 
§  432.     Corporations  for  insuring  titles  to  real  estate.     [Repealed.] 

§  424.  Payment  of  subscriptions.  Capital  to  be  all  paid  in 
twelve  months.  The  entire  capital  stock  of  every  fire  or  ma- 
rine insurance  corporation  must  be  paid  up  in  cash  within 
twelve  months  from  the  filing  of  the  articles  of  incorporation, 
and  no  policy  of  insurance  must  be  issued  or  risk  taken  until 
twenty-five  per  cent  of  the  whole  capital  stock  is  paid  up. 

Fire  insurance:  See  post,  §§  2752  et  seq. 

Marine  insurance:  See  post,  §§  2655  et  seq. 

County  fire  insurance  companies.  Act  providing  for:  See  post,  Ap- 
pendix, tit.  "Insurance." 

Legislation  §  424.  Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  743,  §  5. 

§  425.  Certificate  of  capital  stock  paid  up  to  be  filed,  and 
when.  The  president  and  a  majority  of  the  directors  must, 
Avithin  thirty  days  after  the  payment  of  the  twenty-five  per 
cent  of  the  capital  stock,  and  also  within  thirty  days  after  the 
payment  of  the  last  installment  or  assessment  of  the  capital 
stock  limited  and  fixed,  prepare,  subscribe,  and  swear  to  a  cer- 
tificate setting  forth  the  amount  of  the  fixed  capital  and  the 
amount  thereof  paid  up  at  the  times  respectively  in  this  sec- 
tion named,  and  file  the  same  in  the  office  of  the  county  clerk 
of  the  county  where  the  principal  place  of  business  of  the  cor- 
poration is  located,  and  a  duplicate  thereof,  similarly  executed, 
with  the  insurance  commissioner. 

Legislation  §  425.  Enacted  March  21,  1872;  based  on  Stats.  186i"-66, 
p.  743,  §  10. 

Civ.  Code— 12 


§  429  CIVIL  CODE.  178 

§  426.     Property  which  may  be  insured.     Every  corporation 
formed  for  fire  or  marine  insurance,  or  both,  may  make  insur- 
ance on  all  insurable  interests  within  the  scope  of  its  articles 
of  incorporation,  and  may  cause  itself  to  be  reinsured. 
Insurable  interest,  defined:  See  post,  §  2546. 

Legislation  §  426.  Enacted  March  21.  1872;  based  on  Stats.  1865-66, 
p.  743,  §  8. 

§  427.  Funds  may  be  invested,  how.  [Repealed  1905 ; 
Stats.  1905,  pp.  34,  628.] 

Legislation  §  427.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  210. 

3.  Amended  by  Code  Amdts.  1877-78,  p.  81. 

4.  Amended  by  Stats.  1887,  p.  22. 

5.  Amended  by  Stats.  1899,  p.  66. 

6.  Repeal  by  Stats.  1901,  p.  357;  unconstitutional.  See  note,  §  4, 
ante. 

7.  Repealed  by  Stats.  1905,  pp.  34,  628;  both  repeals  being  embraced 
in  the  titles  of  the  acts  of  1905  adding  the  two  sections  numbered  421, 
q.  v.,  ante,  Legislation  §  421. 

§  428.  Limit  of  one  risk.  Fire  and  marine  insurance  cor- 
porations must  never  take,  on  any  one  risk,  whether  it  is  a 
marine  insurance  or  an  insurance  against  fire,  a  sum  exceeding 
one  tenth  part  of  their  capital  actually  paid  in,  and  intact  at 
the  time  of  taking  such  risk,  without  at  once  reinsuring  the 
excess  above  one  tenth.  [Amendment  approved  1905;  Stats. 
1905,  p.  570.] 

Legislation  §  428.     1.  Enacted  March  21.  1872;  based  on  Stats.  1865- 

66,  p.  747,  §  15. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  210,  (1)  omitting  "or  either" 
after  "corporations"  and  (2)  inserting  "and  intact  at  the  time  of  tak- 
ing such  risk"  after  "paid  in." 

3.  Amendment  by  Stats.  1901,  p.  357;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  570,  inserting  "at  once"  before  "re- 
insuring." 

§  429.     Amounts  to  be  reserved  before  making'  dividends. 

No  corporation  formed  subsequent  to  April  first,  eighteen  hun- 
dred and  seventy-eight,  under  the  laws  of  this  state,  and  trans- 
acting fire,  marine  or  inland  navigation  insurance  business, 
must  make  any  dividends  except  from  profits  remaining  on 
hand  after  retaining  unimpaired : 

1.  The  entire  subscribed  capital  stock. 

2.  All  the  premiums  received  or  receivable  on  outstanding 
marine  or  inland  risks,  except  marine  time  risks. 

3.  A  fund  equal  to  one  half  of  the  amount  of  all  premiums 
on  all  other  risks  not  terminated  at  the  time  of  making  such 
dividend. 


179  FIRE  AND  MARINE  INSURANCE  CORPORATIONS.  §  431 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course  of 
settlement,  and  all  liabilities  for  expenses  and  taxes.  [Amend- 
ment approved  1913;  Stats.  1913,  p.  489.] 

Declaring  dividends.  Generally:  See  ante,  §  309.  See,  also,  ante, 
§  417,  as  to  declaring  dividends  by  insurance  companies  generally. 

Legislation  §  429.  1.  Enacted  March  21,  1872  (based  on  Stats.  1867- 
68,  p.  328,  §  8),  (1)  the  introductory  paragraph  then  reading,  "No  cor- 
poration transacting  fire  or  marine  insurance  business  under  the  laws 
of  this  state  must  make  any  dividends,  except  from  profits  remaining 
on  hand  after  retaining,  unimpaired";  (2)  subds.  1  and  2  reading  as 
at  present;  (3)  subd.  3  reading,  "3.  A  fund  equal  to  one  half  of  the 
amount  of  all  premiums  on  fire  risks  and  marine  time  risks  not  termi- 
nated at  the  time  of  making  such  dividend";  (4)  subd.  4  reading  as 
at  present. 

2.  Amended  by  Code  Amdts.  1877-78,  p.  81,  (1)  changing  the  intro- 
ductory paragraph  to  read,  "No  corporation,  formed  hereafter  under 
the  laws  of  this  state  and  transacting  fire,  marine,  inland  navigation 
insurance  business,  or  insurance  provided  for  by  section  four  hundred 
and  twenty  of  this  code,  must  make  any  dividends,  except  from  profits 
remaining  on  hand  after  retaining  unimpaired";  (2)  the  section  there- 
after reading  as  at  present. 

3.  Amended  by  Stats.  1887,  p.  23,  changing  the  introductory  para- 
graph to  read:  "No  corporation  formed  subsequent  to  April  first, 
eighteen  hundred  and  seventy-eight,  under  the  laws  of  this  state,  and 
transacting  fire,  marine,   inland  navigation   insurance   business,   or  in- 

•surance  provided  for  by  section  four  hundred  and  twenty  (420)  of 
this  code,  except  insurance  of  the  title  to  real  property,  must  make 
any  dividends  except  from  profits  remaining  on  hand  after  retaining 
unimpaired."     The  section  otherwise  read  as  at  present. 

4.  Amended  by  Stats.  1913,  p.  489. 

§  430.  Reservation  by  companies  v^dth  less  than  two  hun- 
dred thousand  dollars  capital.  No  fire  or  marine  insurance 
corporation,  with  a  subscribed  capital  of  less  than  two  hun- 
dred thousand  dollars,  must  declare  any  dividends,  except 
from  profits  remaining  on  hand  after  reserving : 

1.  A  sum  necessary  to  form,  with  the  subscribed  capital 
stock,  the  aggregate  sum  of  two  hundred  thousand  dollars; 

2.  All  the  premiums  received  or  receivable  on  outstanding 
marine  or  inland  risks,  except  marine  time  risks ; 

3.  A  fund  equal  to  one  half  the  amount  of  all  premiums  on 
fire  risks  and  marine  time  rislis  not  terminated  at  the  time  of 
making  such  dividend ; 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course  of 
settlement,  and  all  liabilities  for  expenses  and  taxes. 

Legislation  §  430.  Enacted  March  21,  1872;  based  on  Stats.  1867-68, 
p.  328,  §  9. 

§  431.    Amounts  to  be  reserved  by  life  insurance  companies. 

[Repealed  1905;  Stats.  1905,  p.  571.] 

Legislation  §  431.     1.  Added  by  Code  Amdts.  1877-78,  p.  81. 
2.  Repeal   by   Stats.   1901,   p.   357;    unconstitutional.     See   note,  §  4, 
ante. 


!^  437  CIVIL   CODE.  180 

3.  Eepealed  by  Stats.  1905,  p.  571;  the  code  commissioner  saying  in 
his  note  to  §§  431,  452,  "Old  §  431,  which  dealt  with  the  amounts  to  be 
received  by  life  insurance  companies,  and  stood  in  a  chapter  entitled 
'Fire,  Marine,  and  Title  Insurance  Corporations/  is  transferred  to  a 
more  appropriate  chapter,  and  numbered  452." 

§  432.     Corporations  for  insuring  titles  to  real  estate.     [Re- 
pealed 1913;  stats.  1913,  p.  489.] 

Plants  of  title  insurance  corporations,  power  to  condemn:  See  Code 
Civ.  Proc,  §  1238,  subd.  15. 
Legislation  §  432.     1.  Added  by  Stats.  1887,  p.  23. 

2.  Addition  by  the  code  commissioners  in  1901,  as  a  new  section, 
numbered  §  422,  in  almost  identical  language.  Stats.  1901,  p.  356;  un- 
constitutional.    See  note,  §  4,  ante. 

3.  Eepeal  (§432)  by  Stats.  1901,  p.  357;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Eepealed  by  Stats.  1913,  p.  489. 


CHAPTER  HI. 

Mutual  Life,  Health,  and  Accident  Insurance  Corporations. 

§  437.  Capital  stock.     Guarantee  fund. 

§  438.  Of  what  guarantee  fund  shall  consist. 

§  439.  What  constitutes,  and  deticieney  in  fixed  capital. 

§  440.  Declaration  of  fixed  capital  to  be  filed. 

§  441.  Guarantee  notes  and  interest,  how  disposed  of. 

§  442.  Insured  to  be  entitled  to  vote,  when. 

§  443.  Number  of  directors  may  be  altered,  how. 

§  444.  Investment  of  capital  sfock.      [Eepealed.] 

§  445.  Limitations  to  the  holding  of  stock,  and  in  other  particulars,  may 

be  jirovided  for  in  by-laws. 

§  446.  Premiums,  how  payable. 

§  447.  Insurance  corporations  to  furnish  data  to  insurance  commissioner. 

Employment  of  actuary.     [Eepealed.] 

§  448.  No  stamp  required  on  accident  insurance  contract.     [Eepealed.] 

§  449.  Valuation  of  policies,  retaliatory  provisions.     [Eepealed.] 

§  450.  Provisions  of  life  insurance  policies  issued  in  this  state. 

§  451.  Fraternal  societies  exempt  from  insurance  laws.     [Eepealed.] 

§  452.  Dividends,  how  made. 

§  437.  Capital  stock.  Guarantee  fund.  Every  corporation 
formed  for  the  purpose  of  mutual  insurance  on  the  lives  or 
health  of  persons,  or  against  accidents  to  persons  for  life  or 
any  fixed  period  of  time,  or  to  purchase  and  sell  annuities, 
must  have  a  capital  stock  of  not  less  than  two  hundred  thou- 
sand dollars.  It  niust  not  make  any  insurance  upon  any  risk 
or  transact  any  other  business  as  a  corporation  until  its  capital 
stock  is  fully  paid  up  in  cash,  nor  until  it  has  also  obtained  a 
fund,  to  be  known  as  a  "guarantee  fund,"  of  not  less  than 
two  hundred  and  fifty  thousand  dollars,  as  is  hereinafter  pro- 
vided. If  more  than  the  requisite  amount  is  subscribed,  the 
stock  must  be  distributed  pro  rata  among  the  subscribers. 
Any  subscription  may  be  rejected  by  the  board  of  directors  or 


181  MUTUAL  LIFE,   HEALTH   AND   ACCIDENT    INSURANCE.       §  439 

the  committee  thereof,  either  as  to  the  whole  or  any  part 
thereof,  and  must  be,  so  far  as  rejected,  without  effect,  noth- 
ing in  this  section  shall  be  deemed  to  contravene  any  of  the 
provisions  of  section  four  hundred  and  fifty-one.  [Amend- 
ment approved  1905;  Stats.  1905,  p.  183.] 

Legislation  §  437.  1.  Enacted  March  21,  1872;  based  on  Stats.  1865- 
66,  pp.  753,  755,  §§  1,  8. 

2.  Amendment  by  Stats.  1901,  p.  357;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  183,  (1)  in  first  sentence,  substituting 
"two"  for  "one"  before  "hundred  thousand  dollars,"  and  (2)  adding 
as  a  clause  at  end  of  final  sentence  (quaere,  new  sentence?)  "nothing 
in  this  section  shall  be  deemed  to  contravene  any  of  the  provisions  of 
section  four  hundred  and  fifty-one." 

§  438.  Of  what  guarantee  fund  shall  consist.  The  guaran- 
tee fund  mentioned  in  the  preceding  section  must  consist  of 
the  promissory  notes  of  solvent  parties,  approved  by  the  board 
of  directors  and  by  each  other,  payable  to  the  corporation  or 
its  order,  and  at  such  times,  in  such  modes,  and  in  such  sums, 
with  or  without  interest,  and  conformable  in  all  other  respects 
to  such  requirements  as  the  board  of  directors  prescribe ;  but 
the  amount  of  the  notes  given  by  any  one  person  must  not  ex- 
ceed in  the  whole  the  sum  of  five  thousand  dollars,  exclusive 
of  interest.  Such  notes  must  be  payable  absolutely  and  at  the 
option  of  the  corporation;  they  must  be  negotiable,  and  may 
be  indorsed  and  transferred,  or  converted  into  cash,  or  other- 
wise dealt  with  by  the  corporation,  at  its  discretion,  without 
reference  to  any  contingency  of  losses  or  expenses.  Such 
notes,  or  the  proceeds  thereof,  must  remain  with  the  corpora- 
tion as  a  fund  for  the  better  security  of  persons  dealing  with 
it,  and  constitute  the  assets  of  the  corporation,  liable  for  all  its 
debts,  obligations,  and  indebtedness  next  after  its  assets  from 
premiums  and  other  sources,  exclusive  of  capital  stock,  until 
the  net  earnings,  over  and  above  its  expenses,  losses,  and  lia- 
bilities, shall  have  accumulated  in  cash,  or  securities  in  which 
the  net  earnings  have  been  invested,  to  a  sum  which,  with  the 
capital  stock,  is  equal  to  the  aggregate  of  the  original  amounts 
of  the  guarantee  fund  and  of  the  capital  stock. 

Legislation  §  438.  Enacted  March  21,  1872;  based  on  Stats.  1865-6G, 
p.  755,  §  9. 

§439.    What  constitutes,   and  deficiency  in  fixed  capital. 

The  sum  accumulated  as  provided  in  the  preceding  section,  to- 
gether with  the  capital  stock,  shall  become  and  remain  the 
fixed  capital  of  the  corporation,  not  subject  to  division  among 
the  stockholders  or  parties  dealing  with  it,  or  to  be  expended 
in  any  manner  otherwise  than  may  be  required  in  payment  of 


§  441  CIVIL   CODE.  182 

the  corporation's  debts  and  actual  expenses,  until  the  business 
of  the  corporation  is  closed,  its  debts  paid,  and  its  outstanding  ■ 
policies  and  obligations  of  every  kind  canceled  or  provided 
for ;  and  if  from  any  cause  a  deficiency  at  any  time  occurs  in 
such  fixed  capital,  no  further  division  of  profits  must  take 
place  until  such  deficiency  has  been  made  up. 

Legislation  §  439.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  755,  §  9. 

§  440.  Declaration  of  fixed  capital  to  be  filed.  Whenever 
the  fixed  capital  of  the  corporation  is  obtained  as  hereinbefore 
provided,  the  president  of  the  corporation  and  its  actuary,  or 
its  secretary,  if  there  is  no  actuary,  must  make  a  declaration 
in  writing,  sworn  to  before  some  notary  public,  of  the  amount 
of  such  fixed  capital,  and  of  the  particular  kinds  of  property 
composing  the  same,  with  the  nature  and  amount  of  each  kind, 
which  must  be  filed  with  the  original  articles  of  incorporation, 
and  a  copy,  certified  by  the  county  clerk,  must  be  published  for 
at  least  four  successive  weeks,  in  a  newspaper  published  in  the 
county  where  the  principal  business  of  the  corporation  is  situ- 
ated. Upon  the  filing  of  such  declaration  the  guarantee  fund 
is  discharged  of  its  obligations,  and  all  notes  of  the  fund  re- 
maining in  the  control  of  the  corporation,  and  not  affected  by 
any  lien  thereon,  or  claim  of  that  nature,  must  be  surrendered 
by  it  to  the  makers  thereof,  respectively,  or  other  parties  en- 
titled to  receive  the  same. 

Legislation  §  440.     Enacted  March's],  1872;  based  on  Stats.  1865-66, 

p.  75(3,  §  U). 

§  441.  Guarantee  notes  and  interest,  hov^r  disposed  of.  Un- 
til the  guarantee  fund  is  discharged  from  its  obligations,  as 
provided  in  the  preceding  section,  no  note  must  be  withdrawn 
from  the  fund,  unless  another  note  of  equal  solvency  is  substi- 
tuted therefor,  with  the  approval  of  the  board  of  directors. 
The  corporation  must  allow  a  commission,  not  exceeding  five 
per  cent  per  annum,  on  all  such  guarantee  notes  while  out- 
standing, and  also  interest  on  all  moneys  paid  on  such  notes 
by  the  parties  liable  thereon,  at  the  rate  of  twelve  per  cent  per 
annum,  payable  half-yearly  until  repaid  by  the  corporation, 
unless  the  current  rate  of  interest  is  different  from  this 
amount,  in  which  case  the  rate  payable  may,  from  time  to  time, 
at  intervals  of  not  less  than  one  year,  be  increased  or  reduced 
by  the  board  of  directors,  so  as  to  conform  to  the  current 
rate.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  210.] 

Legislation  §  441.     1.  Enacted  March  21.  1872  (based  on  Stats.  1865- 

66,   p.    756,  §10),   and    then    read:    "Until   the   guarantee   fund    is   dis- 


183  MUTUAL   LIFE,    HEALTH   AND    ACCIDENT   INSURANCE.       §  445 

charged  from  its  obligations,  as  provided  in  the  preceding  section,  no 
note  must  be  withdrawn  from  the  fund,  unless  another  note  of  equal 
solvency  is  substituted  therefor,  with  the  unanimous  approval  of  the 
board  of  directors  then  in  office,  and  of  all  other  parties  liable  on  the 
rest  of  the  notes  comprising  the  guarantee  fund.  The  corporation  must 
allow  a  commission  of  five  per  cent  per  annum  on  all  such  guarantee 
notes  while  outstanding,  and  also  interest  on  all  moneys  paid  on  such 
notes  by  the  parties  lialale  thereon,  at  the  rate  of  twelve  per  cent  per 
annum,  payable  half-yearly  until  repaid  by  the  corporation.  But  such 
rate  of  interest  may,  from  time  to  time,  at  intervals  of  not  less  than 
one  year,  be  increased  or  reduced  by  the  board  of  directors,  so  as  to 
conform  to  the  then  current  rates  of  interest." 
2,  Amended  by  Code  Amdts.  1875-74,  p.  210. 

§  442.  Insured  to  be  entitled  to  vote,  when.  After  the  fil- 
ing of  the  declaration  of  the  fixed  capital,  as  in  this  article 
provided,  the  holders  of  policies  of  life  insurance  for  the  term 
of  life,  on  which  the  premiums  are  not  in  default,  may  vote  at 
the  election  of  directors,  and  have  one  vote  for  each  one  thou- 
sand dollars  insured  by  their  policies,  respectively. 

Legislation  §  442.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 

p.  754,  §  5. 

§  443.  Number  of  directors  may  be  altered,  how.  The  num- 
ber of  directors  specified  in  the  articles  of  incorporation  may 
be  altered  from  time  to  time  during  the  existence  of  the  cor- 
poration by  resolution,  at  the  annual  meeting  of  a  majority  of 
those  entitled  to  vote  at  the  election  of  directors,  but  the  num- 
ber must  never  be  reduced  below  five. 

Legislation  §  443.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  754,  §  5. 

§  444.  Investment  of  capital  stock.  [Repealed  1907 ;  Stats. 
1907,  p.  889.] 

Legislation  §  444.     1.  Enacted  March  21,  1872;  based  on  Stats.  1867- 
68,  p.  661;  Stats.  1865-66,  p.  748,  §  18. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  211. 

3.  Repeal   by   Stats.   1901,   p.   357;    unconstitutional.     See    note,  §  4, 
ante. 

4.  Repealed  by  Stats.  1907,  p.  889. 

§  445.  Limitations  to  the  holding-  of  stock,  and  in  other  par- 
ticulars, may  be  provided  for  in  by-laws.  The  corporation 
may,  by  its  by-laws,  limit  the  number  of  shares  which  may  be 
held  by  any  one  person,  and  make  such  other  provisions  for 
the  protection  of  the  stockholders  and  the  better  security  of 
those  dealing  with  it  as  to  a  majority  of  the  stockholders  may 
seem  proper,  not  inconsistent  with  the  provisions  of  this  title 
or  part. 

Legislation  §  445.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 
p.  754,  §  7. 


§  450  CIVIL  CODE.  184 

§  446.  Premiums,  how  payable.  All  premiums  must  be  pay- 
able wholly  in  cash,  or  one  half  or  a  greater  proportion  in  cash, 
and  the  remainder  in  promissory  notes  bearing  interest,  as  may 
be  provided  for  by  the  by-laws.  Agreements  and  policies  of 
insurance  made  by  the  corporation  may  be  upon  the  basis  of 
full  or  partial  participation  in  the  profits,  or  without  any  par- 
ticipation therein,  as  may  be  provided  by  the  by-laws  and 
agreed  betAveen  the  parties. 

Legislation  §  446.     Enacted  March  21,  1872;  based  on  Stats.  1865-66, 

p.  758, §  16. 

§  447.  Insurance  corporations  to  furnish  data  to  insurance 
commissioner.  Employment  of  actuary.  [Repealed  1907 ; 
Stats.  1907,  p.  141.] 

Legislation  §  447.     1.  Enacted  March  21,  1872. 

2.  Amended  hv  Code  Amdts.  1873-74,  p.  211.  ■ 

3.  Amended  by  Stats.  1889,  p.  35. 

4.  Amendment  by  Stats.  1901,  p.  357;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Eepealed  by  Stats.  1907,  p.  141. 

§  448.     No  stamp  required  on  accident  insurance  contract. 

[Repealed  1907;  Stats.  1907,  p.  141.] 

Legislation  §  448.     1.  Enacted  March  21,  1872. 

2.  Bepeal  by  Stats.  1901,  p.  358;  unconstitutional.     See  note,  §  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  571;  the  code  commissioner  saying, 
"This  section  exempts  accident  insurance  companies  from  stamp  duties, 
but  as  there  are  no  such  duties  under  the  law  as  it  now  stands,  the 
section  is  unnecessary." 

4.  Repealed  by  Stats.  1907,  p.  141;  the  code  commissioner  repeating 
the  language  of  his  note  to  the  repeal  of  1905,  and  adding,  at  the  end, 
"and  is,  therefore,  repealed." 

§  449.  Valuation  of  policies,  retaliatory  provisions.  [Re- 
pealed 1907;  Stats.  1907,  p.  141.] 

Legislation  §  449.     1.  Added  by  Code  Amdts.  1873-74,  p.  270. 

2.  Amendment  by  Stats.  1901,  p.  358;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1907,  p.  141. 

§  450.  Provisions  of  life  insurance  policies  issued  in  this 
state.  Every  contract  or  policy  of  life  insurance  hereinafter 
made  by  any  person  or  corporation,  with  and  upon  the  life  of 
a  resident  of  this  state,  and  delivered  within  this  state,  shall 
provide,  in  event  of  default  of  any  premium  payment  after 
three  full  annual  premiums  shall  have  been  paid  on  such  pol- 
icy, that  without  any  action  on  the  part  of  the  insured,  the 
net  value  of  such  policy  based  upon  the  reserve  basis  used  in 
computing  the  premiums  and  values  thereunder  (the  policy  to 
specify  the  mortality  table  and  rate  of  interest  so  adopted) 
which  net  value  shall  be  at  least  equal  to  its  entire  net  reserve 


185  MUTUAL   LIFE,   HEALTH   AND   ACCIDENT    INSURANCE.       §  450 

at.  the  date  of  default,  including  that  of  dividend  additions,  if 
any,  based  upon  a  standard  not  lower  than  the  American  expe- 
rience tables  of  mortality  with  interest  at  three  and  one  half 
per  cent  yearly,  less  a  surrender  charge  of  not  more  than  two 
and  one  half  per  cent  of  the  face  amount  of  the  policy  and  of 
any  existing  dividend  additions  thereto  and  less  any  indebted- 
ness to  the  company  on  or  secured  by  the  policy,  shall  be 
applied  as  a  single  premium  to  the  purchase  of  one  of  the  fol- 
lowing stipulated  forms  of  insurance  : 

First — Paid-up  nonparticipating  term  insurance  in  the 
amount  of  the  face  of  the  policy,  plus  dividend  additions,  if 
any,  for  such  a  period  as  the  net  value  outlined  above  will  pur- 
chase at  the  net  single  premium,  at  the  attained  age  of  the 
insured  at  the  time  of  the  lapse,  based  upon  the  reserve  basis 
described  in  the  policy ;  provided,  however,  that  under  endow- 
ment contracts  the  term  shall  not  extend  beyond  the  endow- 
ment period  named  in  the  original  contract,  and  the  excess 
value,  if  any,  shall  be  applied  as  a  net  single  premium  to  pur- 
chase in  the  same  manner  paid-up  pure  endowment  insurance, 
payable  at  the  end  of  the  endowment  period  named  in  the  con- 
tract if  the  insured  be  then  living,  or, 

Second — Paid-up  nonparticipating  term  insurance  in  the 
amount  of  the  face  of  the  policy,  plus  dividend  additions,  if 
any,  and  less  any  outstanding  indebtedness,  for  such  a  period 
as  the  net  value  outlined  above  will  purchase  at  the  net  single 
premium,  .at  the  attained  age  of  the  insured,  based  upon  the 
reserve  basis  described  in  the  policy,  provided,  however,  that 
under  endowment  contracts  the  term  shall  not  extend  beyond 
the  endowment  period  named  in  the  original  contract,  and  the 
excess  value,  if  any,  shall  be  applied  as  a  net  single  premium 
to  purchase  in  the  same  manner  paid-up  pure  endowment  in- 
surance, payable  at  the  end  of  the  endowment  period  named 
in  the  contract  if  the  insured  be  then  living,  or, 

Third — Paid-up  nonparticipating  insurance  payable  at  the 
time  and  on  the  conditions  named  in  the  policy  for  such  an 
amount  as  the  net  value  outlined  above  will  purchase  at  the 
net  single  premium,  at  the  attained  age  of  the  insured,  based 
upon  the  reserve  basis  described  in  the  policy. 

Provided,  however,  that  the  policy  may  be  surrendered  to 
the  company,  at  its  home  office,  upon  due  application  by  the 
legal  owner  thereof,  within  one  month  after  date  of  premium 
default,  for  a  specified  cash  value  which  shall  be  at  least  equal 
to  the  sum  which  would  be  otherwise  available  for  the  pur- 
chase of  the  automatic  form  of  insurance  provided  therein ; 
and  provided,  further,  that  the  company  may  defer  payment 
of  such  cash  value  for  not  more  than  six  months  after  applica- 
tion therefor  is  made. 


§  450  CIVIL  CODE.  186 

No  agreement  between  the  company  and  the  policy-holder  or 
applicant  for  insurance  contrary  to  the  foregoing  shall  be  held 
to  waive  any  of  the  provisions  provided  above. 

Any  life  insurance  policy  issued  upon  the  life  of  a  resident 
of  this  state,  and  delivered  within  this  state,  which  does  not 
contain  an  automatic  nonforfeiture  value  in  conformity  with 
the  foregoing  shall  be  construed  as  granting  nonparticipating 
term  insurance,  as  provided  in  paragraph  first  of  this  section, 
and  such  a  benefit  shall  be  read  into  the  contract. 

The  provisions  of  this  section  shall  not  apply  to  annuities,  in- 
dustrial policies  or  to  term  contracts  issued  for  periods  of 
twenty  years  or  less.  [Amendment  approved  1911 ;  Stats. 
1911,  p.  1272.] 

Legislation  §  450.  1.  Added  by  Code  Amdts.  1873-74,  p.  271,  and 
then  read:  "Every  policy  of  insurance  upon  life  issued  hereafter  within 
the  limits  of  the  state  of  California,  whether  by  a  person  or  corpora- 
tion, organized  under  the  laws  of  this  state,  or  under  those  of  any 
other  state  or  country^  or  by  the  agent  of  such  person  or  corporation, 
must  contain  written  evidence  that  it  was  issued  in  this  state.  And 
any  such  policy  issued  in  this  state,  which  shall  not  contain  such  writ- 
ten evidence,  is,  at  the  option  of  the  holder,  null  and  void.  And  the 
person  or  corporation  issuing  such  policy,  without  the  evidence  herein- 
before required,  shall  forfeit  to  the  people  of  the  state  of  California, 
for  each  and  every  policy  so  issued,  the  sum  of  one  hundred  dollars  in 
United  States  gold  coin,  to  be  collected  by  the  insurance  commissioner 
as  provided  by  section  five  hundred  and  ninety-eight  of  the  Political 
Code." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  82,  (1)  changing  the  intro- 
ductory words  of  the  section  to  read,  "Every  policy  of  insurance  upon 
life  hereafter  issued  and  delivered  within  the  limits,"  the  remainder 
of  the  first  sentence  remaining  unchanged,  (2)  omitting  the  second 
sentence,  and  (3)  joining  the  final  sentence  to  the  end  of  the  first, 
and  as  a  part  thereof,  and  changing  it  to  read,  "and  the  person  or 
corporation,  and  the  agent  thereof,  issuing  and  delivering  such  policy, 
without  the  evidence  hereinbefore  required,  shall  forfeit  to  the  people 
of  the  state  of  California  the  sum  of  one  hundred  dollars  for  cash[each] 
and  every  policy  so  issued,  to  be  recovered  by  the  insurance  commis- 
sioner by  suit,  in  the  name  of  the  people  of  the  state  of  California,  in 
any  court  of  competent  jurisdiction." 

3.  Amended  by  Code  Amdts.  1880,  Pol.  Code  div.,  p.  91,  to  read: 
"Every  contract  or  policy  of  insurance  hereafter  made  by  any  person 
or  corporation  organized  under  the  laws  of  this  state,  or  under  those 
of  any  other  state  or  countrj',  with  and  upon  the  life  of  a  resident  of 
this  state,  and  delivered  within  this  state,  shall  contain,  unless  spe- 
cifically contracted  between  the  insurer  and  the  insured  for  tontine 
insurance,  or  for  other  term  or  paid-up  insurance,  a  stipulation  that 
when,  after  three  full  annual  premiums  shall  have  been  paid  on  such 
policy,  it  shall  cease  or  become  void  solely  by  the  non-payment  of 
any  premium  when  due,  its'  entire  net  reserve,  by  the  American  ex- 
perience mortality,  and  interest  at  four  and  one  half  per  cent  yearly, 
less  any  indebtedness  to  the  company  on  such  policy,  shall  be  applied 
by  such  company  as  a  single  premium,  at  such  company's  published 
rates  in  force  at  the  date  of  original  policy,  but  at  the  age  of  the 
insured  at  time  of  lapse,  either  to  the  purchase  of  non-participating 


187  MUTUAL   LIFE,   HEALTH   AND   ACCIDENT   INSURANCE.       §  452 

term  insurance  for  the  full  amount  insured  by  such  policy,  or  upon 
the  written  application  by  the  owner  of  such  policy,  and  the  surrender 
thereof  to  such  company  within  three  months  from  such  non-payment 
of  premium,  to  the  purchase  of  a  non-participating  paid-up  policy,  pay- 
able at  the  time  the  original  policy  would  be  payable  if  continued  in 
force;  both  kinds  of  insurance  to  be  subject  to  the  same  conditions, 
except  as  to  payment  of  premiums,  as  those  of  the  original  policy. 
It  may  be  provided,  however,  in  such  stipulation,  that  no  part  of  such 
term  insurance  shall  be  due  or  payable,  unless  satisfactory  proofs  of 
death  be  furnished  to  the  insuring  company  within  one  year  after 
death,  and  that,  if  death  shall  occur  within  three  years  after  sucb  non- 
payment of  premium,  and  during  such  term  of  insurance,  there  shall 
be  deducted  from  the  amount  payable  the  sum  of  all  the  premiums 
that  would  have  become  due  on  the  original  policy  if  it  had  continued 
in  force.  If  the  reserve  on  endowment  policies  be  more  than  enough 
to  purchase  temporary  insurance,  as  aforesaid,  to  the  end  of  the  en- 
dowment term,  the  excess  shall  be  applied  to  the  purchase  of  pure 
endowment  insurance,  payable  at  the  end  of  the  term,  if  the  insured 
be  then  living.  If  any  life  insurance  corporation  or  company  shall 
deliver  to  any  person  in  this  state  a  policy  of  insurance  upon  the  life 
of  any  person  residing  in  this  state,  not  in  conformity  with  the  pro- 
visions of  this  section,  the  right  of  such  corporation  or  company  to 
transact  business  in  this  state  shall  thereupon  and  thereby  cease  and 
terminate,  and  the  insurance  commissioner  shall  immediately  revoke 
the  certificate  of  such  corporation  or  company  authorizing  it  to  do 
business  in  this  state,  and  publish  such  revocation,  daily,  for  the  period 
of  two  weeks,  in  two  daily  newspapers,  one  published  in  the  city  of 
San  Francisco,  and  the  other  in  the  city  of  Sacramento." 

4.  Amendment  by  Stats.  1901,  p.  358;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1911,  p.  1272. 

§  451.    Fraternal   societies    exempt   from   insurance   laws. 

[Repealed  1907;  Stats.  1907,  p.  141.] 

Legislation  §  451.  1.  Added  by  Code  Amdts.  1873-74,  p.  271,  relat- 
ing to  cancellation  and  payment  of  insurance  policies  of  persons  or 
corporations. 

2.  Amended  by  Code  Amdts.  1877-78,  p.  82. 

3.  Eepealed  by  Code  Amdts.  1880,  Pol.  Code  div.,  p.  92. 

4.  Added  by  Stats.  1885,  p.  221,  declaring  that  secret  societies  and 
fraternal  organizations  are  not  insurance  companies. 

5.  Repealed  by  Stats.  1907,  p.  141. 

§  452.  Dividends,  how  made.  No  corporation  formed  under 
the  laAvs  of  this  state,  and  transacting  life  insurance  business, 
must  make  any  dividends,  except  from  profits  remaining  on 
hand  after  retaining  unimpaired : 

1.  The  entire  capital  stock; 

2.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes ; 

3.  A  sum  sufficient  to  re-insure  all  outstanding  policies,  as 
ascertained  and  determined  upon  the  basis  of  the  American 
experience  table  of  mortality,  and  interest  at  the  rate  of  four 
and  one  half  per  cent  per  annum. 


§  452a  CIVIL  CODE.  188 

Legislation  §  452.  1.  Addition  by  Stats.  1901,  p.  359;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  571,  in  the  identical  language  of  the  un- 
constitutional amendment  of  1901.  See  ante,  Legislation  §  431,  for 
code  commissioner's  note  to  §§  431,  452. 

Another  §  452  was  added  by  Code  Amdts.  1877-78,  p.  83,  and  pro- 
vided for  the  determination  of  the  net  value  of  the  policy  at  the 
expiration  of  the  term,  and  was  repealed  by  Code  Amdts.  1880,  Pol. 
Code  div.,  p.  92. 

CHAPTER  IV. 

Mutual  Benefit  and  Life  Associations. 

§  452a.  Formation  of   mutual  benefit  associations. 

§  453.     Levying  of  assessments.     By-laws  which  may  be  made. 

Legislation  Chapter  IV.  Added  by  Stats.  1905,  p.  411,  and  then  con- 
tained §§  452a,  453;  the  code  commissioner  saying,  "The  statute  of 
1873-74,  p.  745,  as  amended  by  the  statutes  of  1880,  p.  25,  and  1901, 
p.  6,  relating  to  mutual  benefit  associations,  is  codified  in  the'  above 
sections,  and  a  new  chapter,  entitled  'Mutual  Benefit  and  Life  Associa- 
tions, is  added,  to  consist  of  sections  452a  and  453." 

§  452a.  Formation  of  mutual  benefit  associations.  Asso- 
ciations of  any  number  of  persons  may  be  formed  for  the  pur- 
pose of  paying  the  nominee  of  any  member  a  sum,  upon  the 
death  of  the  member,  not  exceeding  three  dollars  for  each 
member  of  the  association,  but  not  exceeding,  in  any  ease,  the 
sum  of  three  thousand  dollars.  Such  association  may  be 
formed  by  filing  articles  of  incorporation  in  the  office  of  the 
clerk  of  the  county  in  which  the  principal  place  of  business  is 
situated  and  a  certified  copy  of  such  articles  of  incorporation, 
duly  certified  by  the  county  clerk,  in  the  office  of  the  secretary 
of  state.  Such  articles  must  state  the  name  of  the  corpora- 
tion, its  general  purposes,  its  principal  place  of  business,  its 
term  of  existence,  not  exceeding  fifty  years  and  the  names  and 
residences  of  the  directors  selected  or  appointed  to  serve  for 
the  first  year.  The  articles  of  incorporation  must  be  signed 
by  not  less  than  twenty-five  members  of  such  association  and 
must  be  acknowledged  by  them  as  required  by  section  292. 
[Amendment  approved  1913;  Stats.  1913,  p.  12.] 

Legislation  §  452a.  1.  Addition  by  Stats.  1901,  p.  360;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  411,  to  read:  "Associations  of  not  ex- 
ceeding one  thousand  persons  may  be  formed  for  the  purpose  of  pay- 
ing to  the  nominee  of  any  member  a  sum,  upon  the  death  of  the 
member,  not  exceeding  three  dollars  for  each  member  of  the  associa- 
tion. Such  association  may  be  formed  by  filing  articles  of  incorpora- 
tion in  the  office  of  the  clerk  of  the  county  in  which  the  principal 
place  of  business  is  situated  and  a  certified  copy  of  such  articles  of 
incorporation,  duly  certified  by  the  county  clerk,  in  the  office  of  the 
secretary  of  state.  Such  articles  must  state  the  name  of  the  corpora- 
tion, its  general  purposes,  its  principal  place  of  business,  its  term  of 


189  CORPORATIONS  TO  DISCOVER   FIRE^   ETC.  §  453a 

existence,  not  exceeding  fifty  years,  the  names  and  residences  of  the 
directors  selected  or  appointed  to  serve  for  the  first  year,  and  must 
be  signed  and  verified  as  required  by  sections  two  hundred  and  ninety- 
two  and  five  hundred  and  ninety-four." 

3.  Amendment  by  Stats.  1913,  p.  12. 

See  ante,  Legislation  Chapter  IV,  for  code  commissioner's  note. 

§  453.  Levying:  of  assessments.  By-laws  which  may  be 
made.  Each  association  provided  for  in  this  chapter  may,  on 
the  death  of  a  member,  levy  an  assessment  on  the  surviving 
members  of  not  exceeding  three  dollars  for  each  member,  and 
collect  and  pay  the  same  to  the  nominee  of  such  decedent,  and 
may  also  provide  for  the  payment  of  such  annual  payments  by 
members  as  may  be  deemed  just,  but  no  member  must  be  sub- 
ject to  any  annual  assessment  in  excess  of  that  established 
when  he  joined  the  association.  The  association  may  make 
such  by-laws  not  inconsistent  with  the  laws  of  the  state  as  may 
be  necessary  for  its  government  and  the  transaction  of  its  busi- 
ness ;  may,  by  its  name,  sue  and  be  sued ;  loan  such  funds  as  it 
may  have  on  hand ;  and  own  sufficient  real  estate  for  its  busi- 
ness purposes  and  such  as  it  may  be  necessary  to  purchase  on 
foreclosure  of  its  mortgages. 

Legislation  §  453.  1.  Addition  by  Stats.  1901,  p.  360;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  411.  See  ante,  Legislation  Chapter  IV, 
for  code  commissioner's  note. 

CHAPTER  V. 

Corporations  to  Discover  Fire  and  Save  Property  and  Human  Life  from 
Destruction  Thereby. 

§  453a.  Powers  of  the  corporation. 

§  453b.  Right  of  way  of  corporation  and  its  officers  when  running  to  fires* 
§  453c.  Yearly   meeting  of   corporation,  notice   to  be  given   thereof,  and 
proceedings  which  may  be  authorized  thereat. 

Legislation  Chapter  V.  Added  by  Stats.  1905,  p.  571,  and  then  con- 
tained the  present  §§  453a-453c;  the  code  commissioner  saying,  "The 
statute  of  1875-76,  p.  689,  concerning  the  powers  of  underwriters,  as 
amended  by  the  statute  of  1897,  p.  223,  is  codified  in  the  sections  above 
named,  a  new  chapter  being  added,  entitled  'Corporations  to  Discover 
Fire,  and  to  Save  Property  and  Human  Life  from  Destruction  Thereby,' 
to  consist  of  §§  453a,  453b,  and  453c." 

§453a.  Powers  of  the  corporation.  Any  corporation  of 
underwriters  heretofore  organized  and  now  existing,  or  which 
may  be  hereafter  organized  under  the  laws  of  this  state,  for 
the  purpose  of  discovering  and  preventing  fires  and  of  saving 
property  and  human  life  from  conflagration,  and  doing  busi- 
ness within  any  municipal  corporation  of  this  state,  has  power, 
at  its  own  proper  cost  and  expense,  to  maintain  a  corps  of  men, 
with  proper  oflEicers,  equipped  with  the  necessary  machinery 


§  453b  CIVIL  CODE.  190 

and  apparatus  therefor,  whose  duty  it  is,  so  far  as  practicable, 
to  discover  and  prevent  fires  and  save  property  and  human  life 
from  conflagration;  and  for  the  effective  discharge  of  such 
duties,  authority  is  hereby  granted  such  corps  to  enter  any 
building  on  fire,  or  in  which  property  is  on  fire,  or  which  such 
corps  or  any  officer  thereof  deems  to  be  immediately  exposed 
to  any  existing  fire,  or  in  danger  of  taking  fire  from  a  burning 
building,  and  to  remove  or  otherwise  save  and  protect  from 
conflagration  or  damage  by  water  any  property,  during  and 
immediately  after  such  fire.  Nothing  in  this  chapter  must  be 
so  construed  as  in  any  degree  to  lessen,  impair,  or  interfere 
with  the  powers,  privileges,  duties,  or  authority  of  the  regular 
fire  department  of  such  municipality ;  nor  can  any  act  of  such 
corps  justify  any  owner  of  any  building  or  property  in  aban- 
doning such  building  or  property. 

Legislation  §  453a.     1.  Addition   by   Stats.   1901,   p.   360;   unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  571.     See  ante,  Legislation  Chapter  V, 
for  code  commissioner's  note. 

§  453b.  Right  of  way  of  corporation  and  its  officers  when 
running  to  fires.  Such  corporation,  with  its  officers  and  corps, 
Avhen  running  to  a  fire  with  its  horses,  vehicles,  and  salvage 
apparatus,  has  the  same  right  of  way  as  is  or  may  be  bestowed 
by  any  ordinance  of  the  municipality  or  law  of  this  state  upon 
the  regular  fire  department  of  the  municipality  wherein  such 
corporation  is  acting ;  but  the  rights  of  such  fire  department 
must  always  be  paramount  to  the  rights  of  such  corporation. 
All  ordinances  now  existing  or  which  may  hereafter  be  passed 
by  the  municipal  authorities  of  any  city  and  county,  or  of  any 
incorporated  city  or  town  wherein  such  a  corporation  may 
carry  on  business,  and  all  laws  of  this  state  applicable  to  such 
city  and  county,  or  city  or  town,  for  the  conviction  or  punish- 
ment of  any  person  or  persons  willfully  or  carelessly  obstruct- 
ing the  progress  of  the  apparatus  of  the  fire  department  of 
such  city  and  county,  or  city  or  toAvn,  while  going  to  a  fire,  or 
of  any  person  or  persons  willfully  or  carelessly  injuring  any 
animal  or  property  of  said  fire  department,  are  equally  ap- 
plicable to  any  person  or  persons  willfully  or  carelessly  ob- 
structing the  progress  of  the  apparatus  of  such  corporation 
while  going  to  a  fire,  and  to  any  person  or  persons  who  will- 
fully or  carelessly  injures  any  animal  or  property  of  such  cor- 
poration ;  and  said  laws  and  ordinances,  and  their  penalties, 
may  be  enforced  in  the  same  courts  and  in  the  same  manner, 
and  with  equal  force  and  effect,  as  in  the  case  of  the  fire 
department. 

Legislation  §  453b.     1.  Addition   by   Stats.   1901,  p.  361;   unconstitu- 
tional.    See  note,  §  4,  ante. 


191  CORPORATIONS  TO  DISCOVER   FIRE,   ETC.  §  453c 

2.  Added  by  Stats.   1905,  p.  572.     See  ante,  Legislation   Chapter  V, 
for  code  commissioner's  note. 

§  453c.     Yearly  meeting  of  corporation,  notice  to  be  given 
thereof,  and  proceedings  which  may  be  authorized  thereat.     In 

the  month  of  July,  in  every  year,  there  must  be  held  a  meeting 
of  all  corporations  created  for  the  purposes  specified  in  this 
chapter;  of  Avhich  ten  days'  previous  notice  must  be  inserted 
in  at  least  one  daily  newspaper  published  in  the  municipality 
where  said  corporation  is  organized  or  established,  at  which 
meeting  each  insurance  company,  corporation,  association,  un- 
derwriter, agent,  person,  or  persons  doing  a  fire  insurance  busi- 
ness in  said  municipality,  whether  members  of  said  corpora- 
tion or  not,  shall  have  a  right  to  be  represented,  and  shall  be 
entitled  to  one  vote.  A  majority  of  the  whole  number  so  rep- 
resented has  poAver  to  decide  upon  the  question  of  sustaining 
the  fire  patrol  organized  by  corporations  heretofore  created, 
or  that  may  be  hereafter  created,  and  fixing  the  maximum 
amount  of  expenses  which  may  be  incurred  therefor  during 
the  fiscal  year  next  to  ensue,  which  amount  must  in  no  case 
exceed  tAvo  per  centum  of  the  aggregate  premiums  returned 
as  received,  as  provided  in  this  section,  and  the  whole  of  such 
amount,  or  so  much  thereof  as  may  be  necessary,  may  be  as- 
sessed upon  all  insurance  companies,  corporations,  associations, 
underwriters,  agents,  person,  or  persons  who  assume  risks  and 
accept  premiums  for  fire  insurance  in  said  municipality,  as 
hereinbefore  mentioned,  in  proportion  to  the  several  amounts 
of  premiums  returned,  as  received  by  each,  as  hereinafter  pro- 
vided, and  such  assessment  is  collectible  by  and  in  the  name 
of  said  corporation,  in  any  court  of  laAv  in  the  state  of  Califor- 
nia having  jurisdiction,  in  such  manner  and  at  such  time  or 
times  as  said  corporation  may  determine.  In  order  to  provide 
for  the  payment  of  persons  employed  by  said  corporation,  and 
to  maintain  suitable  rooms,  and  apparatus  for  saving  life  and 
property  contemplated,  said  corporation  is  empowered  to  re- 
quire a  statement  to  be  furnished,  semi-annually,  by  all  insur- 
ance companies,  corporations,  associations,  underwriters, 
agents,  or  persons,  of  the  aggregate  amount  of  premiums  re- 
ceived for  insuring  property  in  the  municipality  Avhere  said 
corporation  is  organized  or  established,  for  and  during  the  six 
months  next  preceding  the  first  day  of  July  and  the  first  day 
of  January  of  each  year,  which  statement  must  be  SAvorn  to  by 
the  president  or  secretary  of  the  corporation  or  association,  or 
by  the  agent  or  person  so  acting  or  effecting  such  insurance  in 
said  municipality,  and  must  be  handed  to  the  secretary  of  said 
corporation  heretofore  created  or  hereafter  to  be  created,  under 
the  provisions  of  this  chapter  within  ten  days  after  the  first  day 


§  453c  CIVIL  CODE.  192 

of  July  and  the  first  day  of  January  of  each  year.  Said  sec- 
retary mnst,  within  the  ten  days  aforesaid,  by  written  or  printed 
demand  signed  by  him,  require  from  every  insurance  company, 
corporation,  association,  underwriter,-  agent,  or  person  engaged 
in  the  business  of  fise  insurance  in  the  municipality  where  said 
corporation  is  organized  or  established,  the  statement  hereinbe- 
fore provided  for.  Such  demand  may  be  delivered  personally 
at  the  office  of  such  insurance  company,  corporation,  association, 
underwriter,  agent,  or  person  within  said  municipality,  and 
every  officer  of  such  insurance  company,  corporation,  associa- 
tion, and  every  such  underwriter,  agent,  or  person,  who,  for 
fifteen  days  after  said  demand,  neglects  to  render  the  statement 
herein  provided  for,  forfeits  fifty  dollars  for  the  use  of  said 
corporation,  and  also  forfeits  for  its  use  twenty-five  dollars  in 
addition  for  every  day  he  so  neglects  after  the  expiration  of 
the  said  fifteen  days,  and  such  additional  penalty  may  be  com- 
puted and  collected  up  to  the  time  of  the  trial  of  any  action 
brought  for  the  recovery  thereof.  The  penalty  herein  pro- 
vided for  may  be  sued  for  and  collected,  with  costs,  in  any 
court  of  law  within  the  state  of  California  having  .jurisdiction, 
by  and  in  the  name  of  said  corporation. 

Legislation  §  453c.  1.  Addition  by  Stats.  1901,  p.  361;  unconstitu- 
tional.    >See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  572.  See  ante,  Legislation  Chapter  V, 
for  code  commissioner's  note. 

CHAPTER  "YI. 

Life,   Health,   Accident,   and  Annuity  or  Endowment  Insurance  on  the 
Assessment  Plan. 

§  453d.     Contracts  which  may  be  made  by,  defined. 

§  453e.     Formation  of  corporations;  issuing  of  contracts;  investments. 

§  453f.     Pre-existing  corporations,  right  of  to  reincorporate. 

§  453g.     Contracts  of  insurance,  contents  and  effect  of. 

§  453h.     "Reserve  and  emergency  fund. 

§  4531.  Foreign  corporations,  conditions  precedent  to  doing  business  in 
this  state. 

§  453.i.     Limitations  upon   right   to   issue   contracts   of  insurance. 

§  453k.    Exemptions  from  attachment  and  execution. 

§  4531.  Statements  to  be  filed  with  the  insurance  commissioner;  proceed- 
ings to  be  taken  by  him  thereon. 

§  453m.    Lapsing  of  policies  when  forbidden. 

§  453n.     Fees  and  penalties. 

§  453o.     Insurance  commissioner  to  present  bills  for  certain  expenses. 

§  453p.     Exemption  of  fraternal  societies  from  this  chapter. 

Legislation  Chapter  VI.  Added  by  Stats.  1905,  p.  418,  and  then  con- 
tained the  present  §§  453d-453p;  the  code  commissioner  saying,  "The 
above  sections  are  a  codification  of  the  statute  of  1891,  p.  126,  relat- 
ing to  life,  health,  accident,  and  annuity  or  endowment  insurance  on 
the  assessment  plan.  They  are  placed  in  a  new  chapter,  entitled  'Lif<\ 
Health,  Accident  and  Annuity  or  Endowment  Insurance  on  the  Assess- 
ment Plan.'  " 


453e.  Formation  of  Corporations;  Issuing  of  Contracts;  In- 
vestments. Corporations  may  be  formed  to  carry  on  the  business 
of  mutual  insurance  upon  the  assessment  plan,  and  are  subject 
only  to  the  provisions  of  this  chapter.  No  such  corporation 
[may!  issue  contracts  of  insurance  until  at  least  [five  hundred] 
persons  have  applied,  in  writing,  [to  the  insurance  commissioner,] 
for  membership  or  insurance  therein,  and  have  paid  to  the  treas- 
urer of  such  corporation  the  sum  of  [twenty-five  thousand]  dol- 
lars. This  sum  must  be  invested  in  bonds  or  securities,  approved 
by  the  insurance  commissioner  of  this  state,  or  deposited  in  some 
bank  in  this  state  where  it  will  earn  interest.  Said  bonds  or 
securities,  or  evidence  of  such  deposit,  must  be  placed,  through 
the  insurance  commissioner  of  this  state,  with  the  state  treasurer, 
and  the  principal  sum  must  be  held  in  trust  for  the  contract  hold- 
ers of  such  corporation,  with  the  right  in  the  corporation  to  ex- 
change said  bonds,  securities,  or  evidence  of  bank  deposit  for 
others  of  like  value.  Such  corporation  must  also,  as  a  condition 
precedent  to  issuing  any  contracts  of  insurance,  obtain  the  written 
certificate  of  the  insurance  commissioner  that  it  has  complied  with 
the  requirements  of  this  chapter;  and  that  the  name  of  the  cor- 
poration is  not  the  same  as  that  of  any  other  corporation  of  this 
or  other  states,  as  indicated  by  the  insurance  department  reports 
in  his  office;  nor  must  the  commissioner  approve  any  name  or  title 
so  closely  resembling  another  as  to  mislead  the  public.  No  cor- 
poration formed  hereunder  has  legal  existence  after  one  year  from 
the  date  of  its  article.?,  unless  its  organization  has  been  completed 
and  business  commenced;  nor  [shall]  any  corporation  or  indi- 
vidual solicit,  or  cause  to  be  solicited,  any  business,  until  such 
corporation  has  complied  with  the  provisions  of  section  six  hundred 
thirty-three  of  the  Political  Code.  Nothing  contained  in  this 
chapter  shall  be  construed  to  exempt  any  corporation  from  the 
provisions  of  sections  two  hundred  ninety-six  and  two  hundred 
ninety-nine  of  this  code.  (In  effect  90  days  from  and  after  April 
27,   1917.     Stats.  1917,  Chap.   612.)  Civ.  Code,  1917. 


193     LIFE,  HEALTH,  ETC.,  INSURANCE  ON  ASSESSMENT  PLAN.      §  453e 

§  453d.  Contracts  which  may  be  made  by,  defined.  Every 
contract  whereby  a  benefit  may  accrue  to  a  party  or  parties 
therein  named  upon  the  death  or  physical  disability  of  a  per- 
son insured  thereunder,  or  for  the  payment  of  any  sums  of 
money  dependent  in  any  degree  upon  the  collection  of  assess- 
ments or  dues  from  persons  holding  similar  contracts,  is 
deemed  a  contract  of  mutual  insurance  upon  the  assessment 
plan.  Such  contracts  must  show  that  the  liabilities  of  the 
insured  thereunder  are  not  limited  to  fixed  premiums. 

Legislation  §  453d.  1.  Addition  by  Stats.  1901,  p.  362;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  418.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453e.  Formation  of  corporations ;  issuing-  of  contracts ;  in- 
vestments. Corporations  may  be  formed  to  carry  on  the  busi- 
ness of  mutual  insurance  upon  the  a.ssossment  plan,  and  are 
subject  only  to  the  provisions  of  this  chapter.  No  such  cor- 
poration must  issue  contracts  of  insurance  until  at  least  two 
hundred  persons  have  applied,  in  writing,  for  membership  or 
insurance  therein,  and  have  paid  to  the  treasurer  of  such  cor- 
poration the  sum  of  five  thousand  dollars.  This  sum  must  be 
invested  in  bonds  or  securities,  approved  by  the  insurance  com- 
missioner of  this  state,  or  deposited  in  some  bank  in  this  state 
where  it  will  earn  interest.  Said  bonds  or  securities,  or  evi- 
dences of  such  deposit,  must  be  placed,  through  the  insurance 
commissioner  of  this  state,  with  the  state  treasurer,  and  the 
principal  sum  must  be  held  in  trust  for  the  contract-holders  of 
such  corporation,  Math  the  right  in  the  corporation  to  exchange 
said  bonds,  securities,  or  evidence  of  bank  deposit  for  others 
of  like  value.  Such  corporation  must  also,  as  a  condition 
precedent  to  issuing  any  contracts  of  insurance,  obtain  the 
written  certificate  of  the  insurance  commissioner  that  it  has 
complied  with  the  requirements  of  this  chapter;  and  that  the 
name  of  the  corporation  is  not  the  same  as  that  of  any  other 
corporation  of  this  or  other  states,  as  indicated  by  the  insur- 
ance department  reports  in  his  office ;  nor  must  the  commis- 
sioner approve  any  name  or  title  so  closely  resembling  another 
as  to  mislead  the  public.  No  corporation  formed  hereunder 
has  legal  existence  after  one  year  from  the  date  of  its  articles, 
unless  its  organization  has  been  completed  and  business  com- 
menced; nor  must  any  corporation  or  individual  solicit,  or 
cause  to  be  solicited,  any  business,  until  such  corporation  has 
complied  with  the  provisions  of  section  six  hundred  and  thirty- 
three  of  the  Political  Code.  Nothing  contained  in  this  chapter 
,  shall  be  construed  to  exempt  any  corporation  from  the  provi- 

Cir.  Code — 13 


§  453h  CIVIL  CODE.  194 

sions  of  sections  two  hundred  and  ninety-six  and  tAvo  hundred 
and  ninety-nine  of  this  code. 

Legislation  §  4536.  1.  Addition  by  Stats.  1901,  p.  363;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  418.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453f.     Pre-existing-  corporations,  right  of  to  reincorporate. 

Any  existing  corporation  engaged  in  the  business  of  life, 
health,  accident,  or  endowment  insurance  on  the  assessment 
plan  may  reincorporate  under  the  provisions  of  this  code  and 
chapter,  but  is  not  obliged  to  do  so,  and  may,  without  such 
reincorporation,  exercise  the  rights,  powers,  and  privileges  con- 
ferred by  this  chapter. 

Legislation  §  453f.  1.  Addition  by  Stats.  1901,  p.  363;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  419.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note.   . 

§  453g*.     Contracts    of   insurance,    contents    and    effect    of. 

Every  contract  of  insurance  issued  by  such  corporation  must 
specify  the  sum  or  sums  to  be  paid  upon  the  happening  of  the 
contingency  insured  against,  and  when  such  payments  must 
be  made.  Unless  the  contract  is  invalidated  by  fraud  or  by 
breach  of  its  conditions,  the  corporation  is  obligated  to  pay  the 
beneficiary  the  amount  or  amounts  specified  in  its  contract  at 
the  time  or  times  therein  named,  and  such  indebtedness  is  a 
lien  upon  all  the  property  of  such  corporation,  with  priority 
over  all  indebtedness  thereafter  incurred,  except  as  herein- 
after provided  in  case  of  insolvency.  Failure  to  make  such 
payment,  within  thirty  days  after  notice,  at  the  home  office, 
by  mail,  as  provided  by  laAv,  of  a  final  judgment,  unless  waiver 
is  made  by  the  beneficiary,  constitutes  a  forfeiture  of  the  right 
to  do  business. 

Legislation  §  453g.  1.  Addition  by  Stats.  1901,  p.  363;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  419.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453h.  Reserve  and  emergency  fund.  Every  domestic  cor- 
poration, organized  to  do  or  doing  the  business  of  insurance  on 
the  assessment  plan,  must  accumulate  a  reserve  or  emergency 
fund,  which  must,  at  all  times,  be  not  less  than  the  largest 
benefit  contracted  to  be  paid  by  it  to  any  one  person.  Every 
corporation  organized  under  the  provisions  of  this  chapter 
must  accumulate  such  fund  within  a  year  from  the  date  of  its 
certificate  of  incorporation.  Such  fund,  to  the  extent  of  tfie 
largest  amount  contracted  to  be  paid  by  any  such  corporation 
to  any  one  person,  must  be  invested  and  deposited,  as  provided 


195     LIFE,  HEALTH,  ETC.,  INSURANCE  ON  ASSESSMENT  PLAN,      §  4531 

in  section  four  hundred  and*  fifty-three  e,  with  the  right  in  the 
corporation  to  exchange  any  such  securities  for  others  of 
equal  value.  The  deposit  required  by  section  four  hundred 
and  fifty-three  e  constitutes  a  part  of  the  reserve  required  by 
this  section,  at  the  option  of  such  corporation.  When  any 
such  corporation  discontinues  business,  this  fund  must  be  re- 
turned to  such  corporation,  or  disposed  of  as  may  be  deter- 
mined by  the  superior  court  of  the  county  in  which  is  its  prin- 
cipal place  of  business. 

Legislation  §  453h.  1.  Addition  by  Stats.  1901,  p.  364;  unconstitu- 
tiona].     See  note,  §  4,  ante. 

2.  Added  bv  Stats.  1905,  p.  419.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453i.  Foreign  corporations,  conditions  precedent  to  doing 
business  in  this  state.  Corporations  organized  under  th^  laws 
of  any  other  state  or  country  to  transact  the  business  of  mutual 
assessment  insurance  must,  as  a  condition  precedent  to  trans- 
acting business  in  this  state,  comply  with  the  provisions  of  sec- 
tions four  hundred  and  five  and  four  hundred  and  eight  of 
this  code,  and  deposit  with  the  insurance  commissioner  of  this 
state  a  certified  copy  of  its  charter  or  other  instrument  re- 
quired by  its  home  authorities ;  a  statement  under  oath,  of  its 
president  or  secretary,  of  its  business  for  the  preceding  year, 
in  such  form  as  may  be  required  by  the  insurance  commissioner 
of  this  state ;  an  appointment  of  a  general  agent,  service  upon 
whom  binds  the  corporation;  a  certificate  that  for  the  next 
preceding  twelve  months  it  has  paid  in  full  the  maximum 
amount  named  in  its  contract  of  insurance ;  a  certificate  from 
the  proper  officer  of  its  state  or  government  that  like  corpora- 
tions of  this  state  are  legally  entitled  to  do  business  in  such 
state  or  country ;  copies  of  its  contracts  of  insurance  and  ap- 
plications, which  must  show  that  the  liabilities  of  its  members 
are  not  limited  to  fixed  premiums ;  and  evidence,  satisfactory 
to  the  insurance  commissioner,  that  the  corporation  has  accu- 
mulated a  fund  equal  to  that  required  of  like  corporations  in 
this  state,  constituting  a  reserve  or  surplus  fund,  held  in  trust 
for  the  benefit  of  its  contract-holders,  and  so  invested  and  held 
as  required  by  the  laws  of  the  state  or  government  under  which 
such  corporation  was  organized.  The  insurance  commissioner 
must  thereupon  issue  a  license  to  such  corporation  to  do  busi- 
ness in  this  state.  This  license  must  be  renewed  annually,  and 
may  be  revoked  whenever  it  is  ascertained  that  the  statements 
required  to  be  made  by  this  section  are  not  true.  Upon  such 
revocation,  notice  thereof  must  be  given  by  the  insurance  com- 
missioner by  publication  in  some  newspaper  published  in  the 
city  and  county  of  San  Francisco,  for  two  weeks,  daily,  and 


§  453k  CIVIL  CODE.  196 

no  new  contracts  must  be  made  by 'such  company  in  this  state. 
When  any  other  state  or  country  imposes  any  additional  li- 
cense, fees,  taxes,  or  penalties  upon  any  corporation  organized 
or  doing  business  under  this  chapter,  like  license,  fees,  taxes, 
or  penalties  are  imposed  upon  corporations  of  the  same  kind 
and  their  agents  of  such  state  or  country  doing  business  in 
this  state. 

Legislation  §  4531.  1.  Addition  by  Stats.  1901,  p.  364;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  419.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453 j.  Limitations  upon  right  to  issue  contracts  of  insur- 
ance. No  corporation  doing  business  under  this  chapter,  ex- 
cept accident  or  casualty  corporations,  must  issue  a  contract 
of  insurance  upon  the  life  of  any  person  under  fifteen  nor  over 
sixty-one  years  of  age.  Every  such  contract  of  insurance  must 
be  founded  upon  Avritten  application  therefor,  and,  except 
where  the  application  is  for  health,  accident,  or  casualty  insur- 
ance only,  or  for  one  hundred  dollars  life  insurance  or  less, 
such  application  must  be  accompanied  by  the  report  of  a  repu- 
table physician,  containing  a  detailed  statement  of  his  exami- 
nation of  the  applicant,  showing  the  applicant  to  be  in  good 
health,  and  reeommendiug  the  issuance  of  a  contract  of  insur- 
ance. Any  solicitor,  agent,  employee,  examining  physician,  or 
other  person,  making  a  false  or  fraudulent  statement  to  any 
corporation  doing  business  under  this  chapter,  with  reference 
to  any  application  for  insurance,  or  for  the  purpose  of  obtain- 
ing any  money  or  benefit  from  such  corporation,  is  guilty  of  a 
misdemeanor ;  and  any  person  who  makes  a  false  statement  of 
any  material  fact  or  thing  in  a  sworn  statement  as  to  the  death 
or  disability  of  a  contract-holder,  in  any  such  corporation  for 
the  pui'iDOse  of  procuring  or  aiding  the  beneficiary  or  benefi- 
ciaries or  contract-holder  in  procuring  the  payment  of  a  benefit 
named  in  the  contract,  is  guilty  of  perjury. 

Legislation  §  453 j.  1.  Addition  by  Stats.  1901,  p.  365;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  420.  See  ante.  Legislation  Chapter  YI, 
for  code  commissionei-'s  note. 

§  453k.     Exemptions  from  attachment  and  execution.     The 

money,  benefit,  annuity,  endowment,  charitj^  relief,  or  aid  to 
be  paid  as  provided  by  the  contracts  issued  by  any  corporation 
doing  business  under  this  chapter,  is  not  lialjle  to  attachment 
or  other  process,  nor  to  be  seized,  taken,  appropriated,  or  ap- 
plied by  any  legal  or  equita]>le  process,  nor  by  operation  of 
law,  to  pay  any  debts  or  liability  of  the  contract-holder  or 
any  beneficiary  named  thereunder. 


197     LIFE,  HEALTH,  ETC.,  INSURANCE  ON  ASSESSMENT  PLAN,     §  453m 

Legislation  §  453k.  1.  Addition  by  Stats.  1901,  p.  365;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  421.  See  ante,  Legislation  C'liapter  A'l, 
for  code  commissioner's  note. 

§  453 1.  Statements  to  be  filed  with  the  insurance  commis- 
sioner; proceedings  to  be  taken  by  him  thereon.  Every  cor- 
poration, whether  domestic  or  foreign,  doing  the  business  of 
effecting  insurance  on  the  assessment  plan  must,  annually,  on 
or  before  the  first  day  of  February,  file  with  the  insurance 
commissioner,  in  such  form  as  he  may  prescribe,  a  statement 
of  its  affairs  for  the  year  ending  on  the  preceding  thirty-first 
day  of  December.  The  insurance  commissioner,  in  person  or 
by  duly  authorized  deputy,  has  the  power  of  examination  into 
the  affairs  of  a«y  domestic  corporation  doing  business  or  claim- 
ing to  do  business  under  this  chapter,  at  any  time,  in  his  dis- 
cretion, and  must  make  such  examination  at  least  once  a  year. 
If  he,  after  an  examination  of  the  affairs  of  a  corporation,  finds 
that  it  is  not  doing  its  Intsiness  in  conformity  to  this  chapter, 
or  that  it  is  doing  a  fraudulent  or  unlawful  business,  or  that 
it  is  not  carrying  out  its  terms  of  contract,  or  that  it  cannot, 
within  three  months  from  the  date  of  notice  of  default,  pay 
its  obligations,  he  must  cite  the  president,  secretary,  manager, 
or  general  agent  of  the  corporation,  or  all  of  them,  to  appear 
before  him,  stating  the  time  and  place,  to  show  cause  why 
the  authority  of  the  corporation  to  do  business  should  not  be 
revoked,  and  if  cause  is  not  shown,  then  he  must  report  the 
facts  to  the  attorney-general  of  the  state,  who  must  commence 
proceedings  in  the  proper  court  to  restrain  the  corporation 
from  doing  any  further  business. 

Legislation!  4531.  1.  Addition  by  Stats.  1901,  p.  365;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  421.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453m.  Lapsing-  of  policies  when  forbidden.  No  policy  or 
certificate  issued  by  any  corporation  or  association  doing  busi- 
ness under  the  provisions  of  this  chapter  lapses  for  the  non- 
payment of  any  assessments,  dues,  or  premiums,  unless  the  cor- 
poration or  association  has  first  mailed  to  the  insured  under 
such  policy  or  certificate,  at  his  or  her  last  given  post-office 
address,  a  notice  setting  forth  the  amount  to  be  paid,  and  the 
time  the  same  is  due  and  payable;  and  such  notice  must  be 
mailed  at  least  fifteen  days  before  the  assessment  is  due ;  pro- 
vided, that  such  corporations  doing  business  under  this  chap- 
ter as  collect  specific  amounts  at  specific  dates,  as  contained 
in  the  contract,  are  not  compelled  to  send  such  notices ;  and  an 
affidavit  made  by  the  officer,  bookkeeper,  or  clerk  of  any  such 


§  453p  .  CIVIL  CODE.  198 

corporation  having  charge  of  the  mailing  of  notices,  setting 
forth  the  facts  as  they  appear  on  the  records  in  the  office  of  the 
said  corporation,  showing  that  such  notice  was  mailed  and  the 
date  of  mailing,  is  conclusive  evidence  of  the  mailing  of  such 
notice. 

Legislation  §  453m.  1.  Addition  by  Stats.  1901,  p.  366;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  421.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453n.  Fees  and  penalties.  The  fees  for  filing  statements, 
certificates,  or  other  documents  required  by  this  chapter,  or 
for  any  service  or  act  of  the  insurance  commissioner,  and  the 
penalties  for  any  violation  of  this  chapter,  must,  except  as 
otherwise  provided  herein,  be  the  same  as  provided  in  the  laws 
of  this  state  relating  to  life  insurance  companies,  and  must 
be  disposed  of  as  provided  by  such  laws. 

Legislation  §  453n.  1.  Addition  by  Stats.  1901,  p.  366;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  422.  See  ante.  Legislation  Chapter  VI, 
for  code  commissioner's  note. 

§  453o.  Insurance  commissioner  to  present  bills  for  certain 
expenses.  For  all  lawful  expenses  under  this  chapter,  or  by 
reason  of  any  of  its  provisions,  in  the  prosecution  of  any  suit 
or  proceeding,  or  otherwise,  for  the  enforcement  of  the  provi- 
sions of  this  chapter,  the  insurance  commissioner  must  present 
bills,  duly  certified  by  him,  and  accompanied  with  vouchers, 
to  the  state  board  of  examiners,  who  may  allow  the  same,  and 
direct  payment  thereof  to  be  made;  and  the  state  controller 
must  draw  warrants  therefor  on  the  state  treasurer  for  the 
payment  of  the  same  to  the  insurance  commissioner,  out  of  the 
general  fund,  in  addition  to  the  ordinary  contingent  expense. 
Legislation  §  453o.  1.  Addition  by  Stats.  1901,  p.  366;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats!  1905,  p.  422.  See  ante,  Legislation  Chapter  VI. 
for  code  commissioner's  note. 

§  453p.    Exemption  of  fraternal  societies  from  this  chapter. 

The  provisions  of  this  chapter  do  not  apply  to  secret  or  fra- 
ternal societies,  lodges,  or  councils,  which  conduct  their  busi- 
ness and  secure  membership  on  the  lodge  system  exclusively, 
having  ritualistic  work  and  ceremonies  in  their  societies, 
lodges,  or  councils,  nor  to  any  mutual  or  benefit  association 
organized  or  formed  and  composed  of  members  of  any  such 
society,  lodge,  or  council  exclusively. 

Legislation  §  453p.  1.  Addition  by  Stats.  1901,  p.  367;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  422.  See  ante,  Legislation  Chapter  VI, 
for  code  commissioner's  note. 


See. 

453s. 

Sec. 

4o3t. 

See. 

453u. 

Sec. 

4.53v. 

Sec. 

4o3w. 

See. 

453x. 

See. 

453y. 

199  TITLE   INSURANCE   CORPORATIONS.  §  453t 


CHAPTER  VII. 

Title  Insurance  Corporations. 

Title  insurance  companies  subject  to  insurance  laws  and  to 

insurance  commissioner. 
Title    insurance    company    "guarantee    fund."     Interest    and 

dividends.     Mortgages.     Plant  investment. 
Title  insurance  .surplus  fund. 
Policy  of  title  insurance  defined. 
Further  powers  of  title  insurance  companies. 
Combined  title  insurance  and  trust  company. 
Insurance  commissioner's  certificate  necessary  before  issuing 
policy. 
Sec.  453z.     Loans  to  directors,  officers  and  employees. 

Legislation  Chapter  VII.     Added  by  Stats.  1913,  p.  490. 

§  453s.  Title  insurance  companies  subject  to  insurance  laws 
and  to  insurance  commissioner.  Every  title  insurance  com- 
pany shall  be  subject  to  and  shall  comply  with  all  the  require- 
ments of  the  insurance  laws  and  the  rules  and  regulations  of 
the  insurance  department  of  this  state,  and  the  insurance  com- 
missioner shall  have  the  same  power  and  authority  regarding 
any  such  corporation  that  he  may  exercise  in  relation  to  other 
insurance  corporations  organized  under  the  laws  of  this  state, 
including  the  right  to  examine  and  inspect  the  financial  condi- 
tion and  affairs  of  such  company  relating  to  the  insurance  busi- 
ness of  such  company,  and  to  compel  compliance  with  the  pro- 
visions of  law  governing  any  such  corporation. 
Legislation  §  453s.     Added  by  Stats.  1913.  p.  490. 

§  453t.  Title  insurance  company  "guarantee  fund."  In- 
terest and  dividends.  Mortgages.  Plant  investment.  Every 
title  insurance  company,  before  issuing  any  guarantee  or 
policy  of  insurance,  shall  deposit  with  the  state  treasurer,  as 
herein  provided,  as  a  "guarantee  fund"  for  the  security  and 
protection  of  the  holders  of,  or  beneficiaries  under,  such  guar- 
antees or  policies  of  insurance,  one  hundred  thousand  dollars. 
Any  such  deposit  may  be  made  either  in  lawful  money  of  the 
United  States  or  in  any  of  the  securities  specified  in  subdivi- 
sions one,  two,  three,  four  and  five  of  section  four  hundred 
twenty-one  of  this  code.  Said  money  or  securities  shall  be 
first  approved  by  the  insurance  commissioner,  and  upon  his 
written  order,  deposited  with  the  state  treasurer  for  the  pur- 
pose herein  specified,  and  said  treasurer  shall  give  his  receipt 
therefor,  and  thereafter,  subject  to  the  provisions  of  this 
chapter,  shall  hold  such  deposits  of  money  or  securities  for 
the  security  and  protection  of  the  holders  of,  or  beneficiaries 
under,  any  guarantee  or  policy  of  insurance  issued  by  such 
company,  and  the  state  shall  be  responsible  for  the  custody 


§  453t  CIVIL  CODE.  200 

and  safe  return  of  any  money  or  securities  so  deposited. 
Said  securities  or  money  so  deposited  may,  Avith  the  approval 
of  the  insurance  commissioner,  be  Avithdrawn  or  exchanged 
from  time  to  time  for  other  like  securities,  or  lawful  money, 
receivable  as  aforesaid.  So  long  as  the  company  so  deposit- 
ing said  money  or  securities  shall  continue  solvent,  it  shall 
have  the  right  and  shall  be  permitted  by  the  state  treasurer 
to  receive  the  interest  and  dividends  on  any  securities  so  de- 
posited. Said  securities  and  money  shall  be  subject  to  sale 
and  transfer,  and  to  the  disposal  of  the  proceeds  thereof  by 
said  state  treasurer  only  on  the  order  of  a  court  of  competent 
jurisdiction  and  for  the  securitj^  and  protection  of  the  holders 
of  such  guarantees  and  policies  of  insurance.  When  any  part 
of  the  securities  so  deposited  with  the  state  treasurer  consists 
of  notes  or  bonds  secured  by  mortgage  or  deed  of  trust,  or  in 
loans  upon  real  property  secured  by  mortgage  or  deed  of  trust, 
such  mortgages  or  deeds  of  trust  shall  be  accompanied  by  evi- 
dence of  title  issued  by  a  person,  company,  or  corporation 
designated  or  approved  by  the  insurance  commissioner  and 
authorized  by  law  or  otherwise  found  by  the  insurance  com- 
missioner to  be  competent  to  issue  such  evidence  of  title.  Such 
evidence  of  title  shall  consist  either  of  a  full  abstract  of  title, 
a  full  certificate  of  title,  or  a  guarantee  or  policy  of  title  in- 
surance, and  such  evidence  of  title  shall  be  examined  and 
approved  by  or  under  the  direction  of  the  insurance  commis- 
sioner. The  value  of  the  property  covered  by  each  such  mort- 
gage or  deed  of  trust  shall  be  appraised  by  one  or  more  ap- 
praisers selected  or  approved  by  the  insurance  commissioner. 
The  appraisers  shall  be  residents  of  the  county  in  which  the 
property  or  some  part  thereof  is  situated.  The  reasonable 
cost  of  examining  such  evidence  of  title  and  of  making  such 
appraisement,  shall  be  paid  by  the  title  insurance  company 
making  such  deposit,  and  shall  not  exceed  twenty  dollars  for 
examining  the  title  to  the  property  covered  by  each  mort- 
gage or  deed  of  trust,  nor  five  dollars  for  each  appraiser,  not 
exceeding  two,  besides  the  necessary  expenses  of  such  ap- 
praisers; provided,  that  as  to  any  part  of  the  securities  so 
deposited  with  the  state  treasurer  which  consists  of  notes  or 
bonds  s'ccured  by  mortgage  or  deed  of  trust,  payment  of  which 
is  guaranteed  by  a  policy  of  mortgage  insurance,  or  of  mort- 
gage participation  certificates,  issued  by  a  mortgage  insur- 
ance company  in  accordance  with  the  provisions  of  chapter 
VIII  of  title  II  of  part  IV  of  division  first  of  the  Civil  Code, 
such  evidence  of  title  need  not  be  required.  Any  such  cor- 
poration organized  under  the  laws  of  this  state  and  having 
r.  capit?!  stock  paid  in,  in  cash,  of  more  than  one  hundred 
thoi'snnd    dollars,   after    depositing  said    guarantee   fund   as 


201  TITLE   INSURANCE   CORPORATIONS.  §  453t 

above  provided,  may  invest  an  amount  not  exceeding  fifty 
per  cent  of  its  subscribed  capital  stock  in  the  preparation  and 
purchase  of  materials  or  plant  necessary  to  enable  it  to  engage 
in  such  title  insurance  business ;  and  such  materials  or  plant 
shall  be  deemed  an  asset,  valued  at  the  actual  cost  thereof, 
in  all  statements  and  proceedings  required  by  law  for  the 
ascertainment  and  determination  of  the  condition  of  such  cor- 
poration, or  at  such  lesser  value  as  may  be  estimated  by  such 
corporation  in  any  such  statement  or  proceeding,  or  omitted 
entirelv  therefrom.  [Amendment  approved  1915 ;  Stats.  1915, 
p.  1265.] 

Legislation  §  453t.  1.  Added  by  Stats.  1913,  p.  490,  and  then  read: 
"Every  title  insurance  company,  before  issuing  any  guaranty  or  policy 
of  insurance  shall  deposit  as  a  'guarantee  fund'  for  the  benefit  of 
the  holders  of  such  guaranties  and  policies  of  insurance,  the  sum  of 
one  hundred  thousand  dollars  in  the  securities  mentioned  in  subdi- 
visions 1,  2,  3,  4  and  5  of  section  421  of  the  Civil  Code,  in  which  the 
capital  and  accumulations  of  insurance  companies  are  allowed  by  the 
laws  of  this  state  to  be  invested.  Said  securities  shall  be  subject  to 
the  approval  of  the  insurance  commissioner,  and  shall  be  deposited 
with  the  treasurer  of  state,  and  said  treasurer  shall  give  his  receipt 
therefor,  and  the  state  shall  be  responsible  for  their  custody  and  safe 
return.  Said  securities  so  deposited  may  be  exchanged  from  time  to 
time,  with  the  approval  of  the  insurance  commissioner,  for  other  securi- 
ties receivable  as  aforesaid,  and  so  long  as  the  company  so  depositing 
said  securities  shall  continue  solvent,  said  company  shall  have  the  right 
and  shall  be  permitted  by  the  state  treasurer  to  receive  the  interest 
and  dividends  on  the  securities  so  deposited.  Said  securities  shall  be 
subject  to  sale  and  transfer  and  to  the  disposal  of  the  proceeds  by 
said  treasurer,  only  on  the  order  of  a  court  of  competent  jurisdiction, 
and  for  the  benefit  of  the  holders  of  svich  guaranties  and  policies  of 
insurance.  "When  any  part  of  such  deposit  is  made  in  bonds  secured 
by  mortgages  or  deeds  of  trust  of  real  property,  or  in  loans  upon  real 
property  secured  by  mortgages  or  deeds  of  trust,  such  mortgages  or 
deeds  of  trust  shall  be  accompanied  by  evidence  of  title  issued  by  a 
person,  company,  or  corporation  designated  or  approved  by  the  insur- 
ance commissioner  and  authorized  by  law  or  otherwise  found  by  the 
insurance  commissioner  to  be  competent  to  issue  such  evidence  of  title. 
Such  evidence  of  title  shall  consist  either  of  a  full  abstract  of  title, 
a  full  certificate  of  title,  or  a  policy  of  title  in.surance,  and  such  evi- 
dence of  title  shall  be  exarilined  and  approved  by  or  under  the  direc- 
tion of  tlie  insurance  commissioner.  The  value  of  the  property  covered 
by  each  such  mortgage  or  deed  of  trust,  shall  be  appraised  by  one  or 
more  appraisers  selected  or  approved  by  the  insurance  commissioner. 
The  appraisers  shall  be  residents  of  the  county  in  which  the  property 
or  some  part  thereof  is  situated.  The  reasonable  cost  of  examining 
such  evidence  of  title  and  of  making  such  appraisement,  shall  be  paid 
by  the  title  insurance  company  making  sucli  deposit,  and  shall  not 
exceed  twenty  dollars  for  examining  the  title  to  the  property  covered 
by  each  mortgage  or  deed  of  trust,  nor  five  dollars  for  each  appraiser, 
not  exceeding  two,  besides  the  necessary  expenses  of  such  appraisers. 
Any  such  corporation  organized  under  the  laws  of  this  state  and  hav- 
ing a  capital  stock  paid  in,  in  cash,  of  more  than  one  hundred  thou- 
sand dollars  and  after  depositing  said  guarantee  fund  as  above  pro- 
vided,   may    invest    an    amount    not    exceeding    fifty    per    cent    of    its 


§  453w  CIVIL  CODE.        -  202 

subscribed  capital  stock  in  the  preparation  and  purchase  of  materials 
or  plant  necessary  to  enable  it  to  engage  in  such  title  insurance  busi- 
ness; and  such  materials  or  plant  STiall  be  deemed  an  asset,  valued  at 
the  actual  cost  thereof,  in  all  statements  and  proceedings  required  by 
law  for  the  ascertainment  and  determination  of  the  condition  of  such 
corporation,  or  at  such  lesser  value  as  may  be  estimated  by  such  corpo- 
ration in  any  such  statement  or  proceeding,  or  omitted  entirely  there- 
from." 

2.  Amended  by  Stats.  1915,  p.  1265. 

§  453u.  Title  insurance  surplus  fund.  Every  title  insur- 
ance company  shall  annually  set  apart  a  sum  equal  to  ten 
per  cent  of  its  premiums  collected  during  the  year,  which 
sums  shall  be  allowed  to  accumulate  until  a  fund  shall  have 
been  created  equal  in  amount  to  twenty-five  per  cent  of  the 
subscribed  capital  stock  of  such  corporation.  Such  fund  shall 
be  maintained  as  a  further  security  to  holders  of  the  guaranties 
and  policies  of  insurance  issued  by  such  corporation,  and  shall 
be  known  as  the  "Title  insurance  surplus  fund" ;  and  if  at 
any  time  such  fund  shall  be  impaired  by  reason  of  a  loss,  the 
amount  by  which  it  may  be  impaired  shall  be  restored  in  the 
manner  hereinabove  provided  for  its  accumulation.  The  re- 
porting- of  a  loss  shall  he  deemed  an  impairment  of  such  fund 
for  the  purposes  of  this  section.  Such  corporation  must  not 
make  any  dividends  except  from  profits  remaining  on  hand 
after  retaining  unimpaired : 

1.  The  entire  subscribed  capital  stock. 

2.  The  amount  set  apart  as  a  surplus  fund  under  the  provi- 
sions of  this  section. 

3.  A  sum  sufficient  to  pay  all  liabilities  for  expenses  and 
taxes,  and  all  losses  reported  or  in  course  of  settlement,  with- 
out impairment  of  the  title  insurance  svirplus  fund  required 
to  be  set  apart  as  hereinabove  provided. 

Legislation  §  453u.     Added  by  Stats.  1913,  p.  491. 

§  453v.  Policy  of  title  insurance  defined.  Any  written  con- 
tract or  instrument  purporting  to  show  the  title  to  real  prop- 
erty, or  furnish  information  relative  thereto,  which  shall  in 
express  terms  purport  to  insure  or  guarantee  such  title  or  the 
correctness  of  such  information,  shall  be  deemed  a  policy  of 
title  insurance. 

Legislation  §  453v.     Added  by  Stats.  1913.  p.  491. 

§  453w.      Further    powars    of    title    insurance    companies. 

Every  title  insurance  company  organized  under  the  laws  of  this 
state  shall  also  have  power  to  guarantee  or  insure  the  identity, 
due  execution,  and  validity  of  any  note  or  bond  secured  by 
mortgage  or  trust  deed,  and  the  identity,  due  execution  and 
validity  and  recording  of  any  such  mortgage  or  trust  deed,  and 
the  identity,  due  execution  and  validity  of  bonds,  notes  or  other 


203  TITLE   INSURANCE  CORPORATIONS.  §  453x 

evidence  of  indebtedness  issned  by  this  state,  or  by  any  county, 
city  and  county,  city,  school  district,  irrigation  district  or  other 
municipality  or  district  therein,  or  by  any  private  or  public 
corporation,  and  to  act  as  registrar  or  transfer  agent  of  this 
state,  or  of  any  county,  city  and  county,  city,  school  district, 
irrigation  district,  or  other  municipality  or  district  therein, 
or  of  any  private  or  public  corporation,  and  to  transfer  or 
countersign  any  such  bonds,  notes,  or  other  evidence  of  in- 
debtedness and  to  transfer  or  countersign  certificates  of  stock 
of  any  private  or  public  corporation. 

Legislation  §  453w.     Added  by  Stats.  1913,  p.  491. 

§  453x.     Combined  title  insurance  and  trust  company.     Any 

title  insurance  corporation  incorporated  under  the  general 
incorporation  laws  of  this  state,  authorized  by  its  articles  of 
incorporation  to  act  as  executor,  administrator,  guardian,  as- 
signee, receiver,  depositary,  agent  or  trustee,  or  to  do  a  gen- 
eral trust  business,  and  having  a  capital  of  not  less  than  three 
hundred  thousand  dollars  actually  paid  in,  in  cash,  may  also 
do  business  as  a  trust  company,  and  maintain  a  trust  depart- 
ment as  well  as  a  title  insurance  department,  on  compliance 
with  the  following  conditions : 

1.  When  such  title  insurance  company  desires  to  do  such 
a  departmental  business,  it  shall  first  obtain  the  consent  of 
both  the  superintendent  of  banks  and  of  the  insurance  com- 
missioner, and  in  its  application  for  such  consent,  must  file 
a  statement  making  a  segregation  of  its  capital  and  surplus 
for  each  such  department.  At  least  two  hundred  thousand  dol- 
lars of  its  capital  must  be  apportioned  by  such  statement  to 
its  trust  department.  The  respective  portions  of  such  capital 
and  surplus,  when  such  apportionment  has  been  approved  by 
the  superintendent  of  banks  and  by  the  insurance  commis- 
sioner, shall  be  considered  and  treated  as  the  separate  capital 
and  surplus  of  each  such  department  respectively,  as  if  each 
such  department  was  a  separate  business. 

2.  Such  company,  as  to  its  title  insurance  department,  shall 
be  subject  to  and  shall  comply  with  all  the  requirements  of 
the  insurance  laws  and  the  rules  and  regulations  of  the  in- 
surance department  of  this  state,  and  may  invest  its  capital 
apportioned  to  its  title  insurance  department,  and  the  ac- 
cumulations therefrom,  in  the  securities  in  which  the  capital 
and  accumulations  of  insurance  companies  are  allowed  by 
the  laws  of  this  state  to  be  invested,  including  the  materials 
and  plant  necessary  to  enable  it  to  engage  in  the  title  insur- 
ance business,  as  provided  in  this  chapter. 

3.  Such  company,  as  to  its  trust  department,  shall  be  sub- 
ject to  and  shall  comply  with  all  the  requirements  of  the  bank- 


§  453z  CIVIL  CODE.  204 

ing  laws  and  the  rules  and  regulations  of  the  state  banking 
department  of  this  state,  and  may  invest  its  capital  appor- 
tioned to  its  trust  department,  and  the  accumulations  there- 
from, and  trust  funds  received  by  it,  in  accordance  with  the 
laws  of  this  state  relative  to  the  investment  of  funds  of  trust 
companies. 

Legislation  §  453x.     Added  by  Stats.  1913,  p.  492. 

§  453y.  Insurance  commissioner's  certificate  necessary  be- 
fore issuing  policy.  No  corporation  shall  make  any  contract 
or  issue  any  policy  of  guarantee  or  insurance  affecting  titles 
to  real  estate,  or  engage  in  the  business  of  a  title  insurance 
company,  until  it  has  obtained  from  the  insurance  commis- 
sioner his  certificate  that  such  company  has  complied  with  the 
provisions  of  this  chapter  and  is  duly  authorized  to  do  busi- 
ness as  such  title  insurance  company.  [Amendment  approved 
1915;  Stats.  1915,  p.  1266.]  , 

Legislation  §  453y.  1.  Added  by  Stats.  1913,  p.  492,  and  then  read: 
"No  corporation  shall  make  any  contract  or  issue  afly  policy  of  guar- 
anty or  insurance  affecting  titles  to  real  estate,  or  engage  in  the  busi- 
ness of  a  title  insurance  company,  until  it  has  obtained  from  the 
insurance  commissioner  his  certificate  that  such  company  has  complied 
with  the  provisions  of  this  chapter  and  is  duly  authorized  to  do  busi- 
ness as  such  title  insurance  company;  provided,  however,  that  any 
corporation  heretofore  organized  under  the  laws  of  this  state  for  the 
purpose  of  issuing  policies  of  insurance  affecting  title  to  real  estate, 
or  for  the  purpose  of  carrj'ing  on,  and  which  is  actually  engaged  in 
the  business  of  title  insurance,  or  of  issuing  policies  of  insurance 
affecting  titles  to  real  estate,  shall  be  subject  to  and  shall  be  entitled 
to  all  the  rights  and  privileges  of  a  title  insurance  company  under  the 
provisions  of  this  chapter,  by  depositing  with  the  state  treasurer  the 
guarantee  fund  required  to  be  deposited  by  title  insurance  corporations; 
provided,  such  deposit  is  made  at  any  time  prior  to  the  first  day  of 
January,  A.  D.  1914,  and  any  such  corporation  heretofore  organized 
shall  have  the  right  to  continue  to  transact  such  business  until  said 
date;  and  provided,  also,  that  the  failure  to  deposit  said  guarantee 
fund  prior  to  said  date  shall  be  deemed  an  abandonment  of  all  such 
rights  and  privileges." 

2.  Amendment  by  Stats.  1915,  p.  1266. 

§  453z.  Loans  to  directors,  officers  and  employees.  No  loan 
shall  be  made  by  any  title  insurance  company,  directly  or  in- 
directly, to  any  of  its  officers  or  directors  or  employees  or  to 
any  member  of  the  family  of  any  officer  or  director.  Any  offi- 
cer, director,  agent  or  employee  of  any  such  company  who 
knowingly  consents  to  any  violation  of  the  terms  or  provisions 
of  this  section  shall  be  guilty  of  a  misdemeanor. 
Legislation  §  453z.     Added  by  Stats.  1913,  p.  493. 


205 


MORTGAGE   INSURANCE   COMPANIES. 


453aa 


CHAPTER  VIII. 

Mortgage  Insurance. 

Sec.  453aa.  Mortgage  insurance  companies  subject  to  insurance  laws  and 
the  authority  of  insurance  commissioner. 

453bb.  Mortgage  insurance  company  defined.  The  term  "security" 
as  used  iu  this  chapter  defined.  Policy  of  mortgage  insur- 
ance defined.  Mortgage  participation  certificate  defined. 
Entire  mortgage  guaranty'  defined. 

453ce.  Eequisite  capital  stock  of  mortgage  insurance  company;  cer- 
tificate of  authority  required.  Kind  and  amount  of  securi- 
ties that  may  be  guaranteed.  Policies  of  mortgage  insur- 
ance do  not  constitute  "debts"  or  "indebtedness"  of  issuing 
company.  Can  not  invest  in,  hold  or  own  capital  stock  of 
another  corporation,  except  as  provided  herein. 

453dd.  Must  accumulate  a  surplus.  Eestriction  on  making  of  divi- 
dends. 

453ee.     Investments   permitted. 

453ff.  Mortgage  participation  certificates  and  guaranteed  securities 
made  legal  investments  for  trust  funds,  insurance  com- 
panies and  others. 

453gg.     Quarterly  reports  to  insurance   commissioner. 

453hh.     Quarterly  reports  to  insurance  commissioner    [repealed]. 

Legislation  Chapter  VIII.  This  chapter  was  added  in  1913,  Stats. 
1913,  p.  47S.  It  then  consisted  of  §§  453aa  to  §  453hh.  The  entire 
chapter  was  revised  and  amended  <.o  read  as  follows  in  1915,  Stats.  1915, 
p.  1538. 

§453aa.  Mortgage  insurance  companies  subject  to  insur- 
ance laws  and  the  authority  of  insurance  commissioner. 
Every  mortgage  insurance  company  shall  be  subject  to  and 
shall  comply  with  all  the  requirements  of  the  laws  of  this 
state  made  applicable  to  insurance  companies  generally  and 
the  rules  and  regulations  of  the  insurance  department  of  this 
state,  excepting  in  so  far  as  said  laws,  rules  or  regulations 
may  be  inconsistent  with  the  other  provisions  in  this  chapter 
contained;  and  the  insurance  commissioner  shall  have  the 
same  power  and  authority  over  such  company  that  he  may 
exercise  in  relation  to  other  insurance  companies,  including 
the  right  to  examine  and  inspect  the  financial  condition  and 
affairs  of  such  company  relating  to  the  business  of  such  com- 
pany, and  to  compel  compliance  with  the  provisions  of  law 
governing  any  such  company.  [Amendment  approved  1915; 
Stats.  191,5,  p.  1539.] 

Legislation  §  453aa.  1.  Added  by  Stats.  1913,  p.  479  and  then  read: 
"The  insurance  commissioner  shall  have  the  same  power  and  authority 
regarding  any  mortgage  insurance  corporation  that  he  may  exercise 
in  relation  to  other  insurance  corporations  organized  under  the  laws 
of  this  state,  including  the  right  to  examine  and  inspect  the  financial 
condition  and  affairs  of  such  company,  and  to  compel  compliance  with 
the  provisions  of  law  governing  any  such  corporation." 
2.  Amended  by  Stats.  1915,  p.  1539. 


§  453bb  CIVIL  CODE.  206 

§  453bb.  Mortgage  insurance  company  defined.  The  term 
"security"  as  used  in  this  chapter  defined.  Policy  of  mortgage 
insurance  defined.  Mortgage  participation  certificate  defined. 
Entire  mortgage  guaranty  defined.  The  term  "mortgage  in- 
surance company"  shall  include  every  association,  corporation, 
firm  or  person  who  shall  engage  as  a  business  in  making  and 
issuing  policies  of  mortgage  insurance. 

The  term  "security"  wherever  used  in  this  chapter,  without 
a  different  meaning  being  specified  or  made  apparent,  shall  be 
construed  to  refer  to  and  include  Avithin  its  meaning  a  note 
or  notes,  or  bond  or  bonds,  together  with  the  mortgage  or  deed 
of  trust  securing  the  same  which  evidence  a  debt  secured  by  a 
first  lien  on  a  marketable  title  in  fee  to  real  estate,  or  to  real 
estate  with  improvements  thereon. 

Any  contract  made  and  issued  by  a  mortgage  insurance 
company  which  purports  to  guarantee  or  insure  against  loss 
on,  or  to  guarantee  the  payment  of,  within  a  specified  time, 
the  whole,  or  any  part,  of  the  principal,  interest  or  other  sums 
agreed  to  be  paid  under  the  terms  of  any  security,  or  other 
sums  secured  under  the  terms  of  any  security,  shall  be  deemed, 
and  is  hereby  designated,  a  "policy  of  mortgage  insurance." 
A  policy  of  mortgage  insurance  which  evidences  the  owner- 
ship by  the  insured  of  an  undivided  or  other  partial  share  or 
interest,  or  the  right  to  participate  to  a  specified  extent,  in  a 
security,  or  in  a  group  consisting  of  several  securities,  and 
purports  to  guarantee  the  payment  of  such  securities,  or  the 
payment  of  such  undivided  or  other  partial  share  or  interest 
therein,  or  the  amount  of  such  participation,  may  be  referred 
to  as,  and  is  hereby  designated,  a  "mortgage  participation 
certificate." 

A  policy  of  mortgage  insurance,  other  than  a  mortgage 
participation  certificate,  which  covers  and  refers  to  the  entire 
indebtedness  evidenced  by  a  security,  may  be  referred  to  as, 
and  is  hereby  designated,  an  "entire  mortgage  guaranty." 
[Amendment  approved  1915;  Stats.  1915,  p.  1539.] 

Legislation  §  453bb.  1.  Added  by  Stats.  1913,  p.  479,  and  then  read: 
"A  certiticate  or  guaranty  issued  by  a  mortgage  insurance  company 
organized  under  the  laws  of  this  state,  whether  such  certificate  repre- 
sents or  refers  to  a  particular  note  or  bond  secured  by  mortgage  or 
trust  deed  in  its  entirety,  or  represents  or  refers  to  an  un'divided  or 
other  partial  interest  in  a  note  or  notes  or  in  a  bond  or  bonds  secured 
by  mortgage  or  trust  deed  or  in  a  group  of  several  such  notes  or  bonds 
and  in  the  mortgages  and  trust  deeds  securing  the  same,  which  certiti- 
cate or  guaranty  purports  to  guarantee  the  payment  of  the  principal, 
interest  or  other  sums  agreed  to  be  paid  under  the  terms  of  any  such 
note  or  bond  secured  by  mortgage  or  trust  deed,  or  other  sums  secured 
under  the  terms  of  any  such  mortgage  or  trust  deed  and  the  guarantee- 
ing or  insuring,  directly  or  indirectlj^,  against  loss  thereon,  shall  be 
deemed    a    policy    of    mortgage   insurance.     When   such   certificate    or 


207  MORTGAGE   INSURANCE    COMPANIES.  §  453cc 

guaranty  represents  or  refers  to  an  undivided  or  other  partial  interest 
as  above  stated,  the  policy  containing  the  same  may  be  referred  to  as 
and  is  hereby  designated  as  a  'mortgage  participation  certificate,'  and 
when  such  certificate  or  guaranty  rei^resents  or  refers  to  an  entire  in- 
terest as  above  stated,  the  policy  containing  the  same  may  be  referred 
to  as  and  is  hereby  designated  as  a  'mortgage  guaranty'  or  an  'entire 
mortgage  guaranty.'  " 

2.  Amended  by  Stats.  1915,  p.  1539. 

§  453cc.  Requisite  capital  stock  of  mortgage  insurance  com- 
pany; certificate  of  authority  required.  Kind  and  amount  of 
securities  that  may  be  guaranteed.  Policies  of  mortgage  insur- 
ance do  not  constitute  "debts"  or  "indebtedness"  of  issuing 
company.  Can  not  invest  in,  hold  or  own  capital  stock  of 
another  corporation,  except  as  provided  herein.  No  mortgage 
insurance  company  shall  engage  in  business,  or  issue  any  policy 
of  mortgage  insurance,  within  this  state  without  having  at  least 
two  hundred  and  fifty  thousand  dollars  in  capital  stock  fully 
paid  in,  in  casli;  nor  until  after  having  obtained  from  the  in- 
surance commissioner  his  certificate  that  such  company  has 
complied  with  the  laws  of  this  state  applicable  thereto  and  is 
duly  authorized  to  do  business  as  a  mortgage  insurance  com- 
pany. 

No  mortgage  insurance  company  shall  guarantee  the  pay- 
ment of  any  security  except  the  same  be  a  first  lien  upon  a 
marketable  title  in  fee  to  the  property  covered  thereby.  No 
mortgage  insurance  company  shall  issue  any  policy  of  mort- 
gage insurance  guaranteeing  the  payment  of  any  portion  of 
any  security  exceeding  fifty  per  centum  of  the  market  value 
of  the  real  estate  with  improvements  covered  by  the  same. 
No  mortgage  insurance  company  shall  have  at  any  time  out- 
standing policies  of  mortgage  insurance  guaranteeing  the  pay- 
ment of  securities  the  aggregate  amount  of  the  unpaid  princi- 
pal of  which  exceeds  tAventy  times  the  amount  of  its  paid  up 
capital.  The  making  and  issuing  of  policies  of  mortgage  in- 
surance under  this  act  by  mortgage  insurance  companies  must 
not  be  construed  to  be  the  creation  of  debt  within  the  meaning 
of  the  phrase  "create  any  debts"  in  section  three  hundred 
nine  of  the  Civil  Code,  nor  of  indebtedness  within  the  meaning 
of  the  phrase  "such  capital  stock  cannot  be  diminished  to  an 
amount  less  than  the  indebtedness  of  the  corporation"  in 
section  three  hundred  fifty-nine  of  the  Civil  Code,  except  that 
no  mortgage  insurance  company  shall  reduce  its  capital  stock 
to  an  amount  less  than  is  required  by  this  act  to  be  maintained 
by  such  mortgage  insurance  company,  or  less  than  the  in- 
debtedness of  such  mortgage  insurance  company  other  than 
such  policies  of  mortgage  insurance. 

No  mortgage  insurance  company  shall  invest  in,  hold  or  own 
any  of  the  capital  stock  of  any  other  corporation,  or  make  any 


§  453dd  CIVIL  CODE.  208 

loan,  in  whole  or  in  part,  on  the  security  of  capital  stock  of  any 
other  corporation;  provided,  that  a  mortgage  insurance  com- 
pany may  take  in  its  own  name  as  pledgee,  in  connection  with 
any  loan  conforming  to  the  provisions  of  subdivision  five  of 
section  four  hundred  fifty-three  ee,  stock  in  a  water  or  power 
corporation  in  cases  w^here  such  stock  represents  the  right  to 
receive  or  obtain  water  or  power  for  the  irrigation  or  cultiva- 
tion, or  other  beneficial  use  thereon,  of  the  real  estate  covered 
by  the  loan,  whether  such  right  be  appurtenant  thereto  or 
otherwise ;  and  if  such  loan  be  used  as  a  part  of  a  security  or 
of  a  group  of  securities  taken  as  the  basis  for  the  issue  of 
mortgage  participation  certificates,  may  assign  such  stock  to  a 
trust  company  as  a  part  of  the  security  or  securities  required 
to  be  assigned  by  the  terms  of  section  four  hundred  fifty- 
three  ff.  Said  company  may  also  hold,  use,  transfer  or  dis- 
pose of  any  such  stock  for  the  benefit  and  protection  of  such 
loans. 

,  No  loan  shall  be  made  by  any  mortgage  insurance  company 
directly  or  indirectly  to  any  of  its  officers  or  directors. 

A  violation  of  any  of  the  terms  or  provisions  of  this  section 
shall  not  make  any  security  or  any  policy  of  such  company 
void  or  voidable,  but  any  officer,  director,  agent  or  other  em- 
ployee of  any  mortgage  insurance  company  who  knowingly 
consents  to  any  violation  of  any  of  the  terms  or  provisions  of 
this  section  shall  be  guilty  of  a  misdemeanor.  [Amendment 
approved  1915;  Stats.  1915,  p.  1539.] 

Legislation  §  453CC.     1.  Added  by  Stats.  1913,  p.  479,  and  then  read: 

"No  mortgage  insurance  company  shall  issue  in  California  any  policy 

of  mortgage  insurance  without  having  a  capital  stock  of  at  least  one 

hundred  thousand  dollars  fully  paid  in,  in  cash." 
2.  Amended  by  Stats.  1915,  p.  1539. 

§  453dd.  Must  accumulate  a  surplus.  Restriction  on  making- 
of  dividends.  Every  mortgage  insurance  company  shall  annu- 
ally set  apart  a  sum  equal  to  ten  per  centum  of  its  net  earnings 
collected  during  the  year,  which  sums  shall  be  allowed  to  ac- 
cumulate until  a  fund  shall  have  been  created  equal  in  amount 
to  twenty-five  per  centum  of  the  paid  up  capital  stock  of  such 
company.  Such  fund  shall  be  maintained  as  a  further  se- 
curity to  the  holders  of  policies  of  mortgage  insurance  issued 
by  such  company,  and  shall  be  known  as  the  "surplus";  and 
if  at  any  time  such  surplus  shall  be  impaired  by  reason  of 
a  loss,  the  amount  by  which  it  may  be  impaired  shall  be  re- 
stored in  the  manner  hereinabove  provided  for  its  accumula- 
tion. All  additions  to  said  surplus,  whether  made  in  fulfill- 
ment of  the  requirements  of  this  section  or  voluntarily  by  the 
company,  shall  be  and  remain  subject  to  the  provisions  of  this 


209  MORTGAGE  INSURANCE   COMPANIES.  §  453ee 

law.     Such  company  must    not  make  any    dividends  except 
from  profits  remaining  on  hand  after  retaining  unimpaired: 

1.  The  entire  capital  stock. 

2.  The  amount  set  apart  as  a  surplus  under  the  provisions 
of  this  section. 

3.  A  sum  sufficient  to  pay  all  liabilities  for  expenses  and 
taxes,  and  all  losses  reported  or  in  course  of  settlement,  with- 
out impairment  of  said  surplus.  [Amendment  approved  1915 ; 
Stats.  1915,  p.  1540.] 

Legislation  §  453dd.  1.  Added  by  Stats.  1913,  p.  479,  and  then  read: 
"No  mortgage  insurance  company  shall  guarantee  the  payment  of  any 
note  or  bond  secured  by  any  mortgage  or  trust  deed  except  the  same 
be  a  first  lien  upon  a  marketable  title  in  fee  to  the  property  covered 
thereby.  No  mortgage  insurance  company  shall  guarantee  under  any 
mortgage  or  trust  deed  a  principal  amount,  exceeding  sixty  per  centum 
of  the  market  value  of  the  real  estate  taken  as  security  therefor.  No 
mortgage  insurance  company  shall  have  at  any  time  outstanding  poli- 
cies of  mortgage  insurance  exceeding  in  amount  of  principal  guaran- 
teed thereunder  twenty  times  the  amount  of  its  paid-in  capital  and 
surplus;  and  provided,  also,  that  certificates  so  issued,  or  guaranties 
so  made  or  policies  so  issued  by  mortgage  insurance  companies  organ- 
ized under  the  provisions  of  this  act  shall  not  be  deemed  to  be  debts 
created  by  the  directors  in  violation  of,  or  contrary  to  the  provisions 
of  section  309  of  the  Civil  Code,  nor  make  the  directors  or  any  of  them 
liable  thereon.  No  loan  shall  be  made  by  any  mortgage  insurance 
company  directly  or  indirectly  to  any  of  its  officers  or  directors.  A 
violation  of  any  of  the  terms  or  provisions  of  this  section  shall  not 
make  any  policy  or  guaranty  of  such  company  void  or  voidable,  but 
any  oflScer,  director,  agent  or  other  employee  of  any  such  company  who 
knowingly  consents  to  any  violation  of  any  of  the  terms  or  provisions 
of  this  section  shall  be  guilty  of  a  misdemeanor." 

2.  Amended  by  Stats.  1915,  p.  1540. 

§  453ee.  Investments  permitted.  A  mortgage  insurance 
company  may  invest  its  capital,  surplus,  and  accumulations 
in  the  purchase  of,  or  loans  upon,  any  of  the  obligations  speci- 
fied in  subdivisions  one  to  six  inclusive  of  this  section: 

1.  Bonds  or  interest-bearing  notes  or  obligations  of  the 
United  States  or  those  for  which  the  faith  and  credit  of  the 
United  States  are  pledged  for  the  payment  of  principal  and 
interest. 

2.  Bonds  of  this  state  or  those  for  which  the  faith  and 
credit  of  the  state  of  California  are  pledged  for  the  payment 
of  principal  and  interest  and  bonds  of  any  other  state  in  the 
United  States  that  has  not,  within  five  years  next  preceding 
such  investment  by  such  insurance  company,  defaulted  in  pay- 
ment of  any  part  of  either  principal  or  interest  due  upon  any 
legally  authorized  bond  issue. 

3.  Bonds  or  interest-bearing  notes  or  obligations  issued 
under  authority  of  law  by  any  county,  municipality  or  school 
district  in  this  state  or  in  any  other  state  or  territory  of  the 

Civ.  Code — 14 


§  453ee  civil  code.  ,       210 

United  States;  provided,  that  said  county,  municipality  or 
school  district  or  the  state  or  territory  in  which  it  is  located 
has  not,  within  five  years  next  preceding  such  investment  by 
such  insurance  company,  defaulted  in  payment  of  any  part  of 
either  principal  or  interest  due  upon  any  legally  authorized 
bond  issue. 

4.  Bonds  of  a  permanent  road  division  in  this  state,  and 
any  irrigation  district  bonds  which  the  law  may  now  or  here- 
after authorize  as  legal  investments  for  insurance  companies ; 
provided,  that  the  total  amount  of  bonds  issued  by  any  such 
irrigation  district  does  not  exceed  sixty  per  centum  of  the 
aggregate  market  value  of  the  lands  within  such  district,  and 
of  the  water,  water  rights,  canals,  reservoirs,  reservoir  sites 
and  irrigation  works  oAvned  or  to  be  acquired  or  constructed 
with  the  proceeds  of  any  such  bonds,  by  said  district,  such 
facts  in  reference  to  bonds  of  irrigation  districts  to  be  deter- 
mined by  a  commission  now  or  hereafter  authorized  by  law 
to  ascertain  and  report  upon  such  facts. 

5.  Notes  or  bonds  secured  by  first  mortgage  or  deed  of  trust 
or  other  first  lien  upon  real  estate,  improved  or  unimproved; 
provided,  that  the  principal  so  lent  or  the  entire  note  or  bond 
issue  so  secured  shall  not  exceed  fifty  per  centum  of  the  mar- 
ket value  of  such  real  estate,  or  of  such  real  estate  with  im- 
provements ;  provided,  also,  in  case  said  loan  is  made,  or  said 
note  or  bond  issue  created  as  or  for  a  building  loan  on  real 
estate,  that  at  no  time  shall  the  principal  so  lent  or  the  entire 
outstanding  note  or  bond  issue  exceed  fifty  per  centum  of 
the  market  value  of  the  real  estate  and  the  actual  cost  of  the 
improvements  thereon. 

6.  Securities  guaranteed  by  a  mortgage  insurance  company 
operating  under  the  laws  of  the  state  of  California,  also  mort- 
gage participation  certificates  issued  by  any  such  company  in 
accordance  Avith  the  provisions  of  this  chapter,  including 
securities  guaranteed  and  mortgage  participation  certificates 
issued  by  the  investing  company.  [Amendment  approved 
1915;  Stats.  1915,  p.  1541.]  .    ' 

Legislation  §  453ee.  1.  Added  by  Stats.  1913,  p.  480,  and  then  read: 
"Mortgages  or  trust  deeds,  guaranteed  by  any  such  mortgage  insur- 
ance company,  in  compliance  with  the  terms  of  this  chapter,  and  the 
notes  and  bonds  secured  thereby,  and  mortgage  participation  certifi- 
cates, mortgage  guaranties  and  entire  mortgage  guaranties,  as  defined 
by  section  453bb,  shall  be  legal  investments  for  all  trust  funds  held  by 
any  executor,  administrator,  guardian,  trustee  or  other  person  holding 
trust  funds  for  investment,  and  for  the  funds  of  insurance  companies, 
banks,  banking  institutions  and  trust  companies,  and  all  premiums  paid 
on  such  guaranties  and  certificates  may  be  charged  to  or  paid  out  of 
the  income  from  such  notes  or  bonds;  provided,  however,  that  if  any 
such  investment  be  in  a  mortgage  participation  certificate  or  certifi- 
cates, the  mortgage  or  mortgages  and  deed  or  deeds  of  trust  referred 


2li  MORTGAGE  INSURANCE   COMPANIES.  §  453ff 

to  in  such  certificates,  together  with  the  note  or  notes  and  bond  or 
bonds  secured  by  the  same,  shall  be  assigned  to  a  trust  company  or- 
ganized and  doing  business  under  the  laws  of  this  state,  and  shall  be 
held  by  such  trust  comi^any  as  security  for  the  payment  of  said  mort- 
gage participation  certificates,  including  all  of  the  mortgage  participa- 
tion certificates  secured  by  such  mortgages  and  deeds  of  trust  so  as.- 
signed,  and  for  the  performance  of  all  of  the  conditions  of  said  mort- 
gage participation  certificates  imposed  thereby  upon  the  mortgage  in- 
surance company  issuing  the  same;  and  such  trust  company  shall  cer- 
tify on  each  such  mortgage  participation  certificate,  that  the  aggregate 
amount  of  the  certificates  issued,  evidencing  and  conferring  participa- 
tion in  such  mortgages  and  deeds  of  trust  and  in  the  notes  and  bonds 
secured  thereby,  does  not  exceed  the  principal  of  the  debts  evidenced 
and  secured  by  such  mortgages  and  deeds  of  trust;  and  provided,  also, 
that  such  investment  shall  be  accompanied  by  a  copy  of  the  appraise- 
ment and  of  the  certificate  of  the  directors  filed  or  to  be  filed  with  the 
insurance  commissioner  as  required  by  the  provisions  of  this  chapter." 
2.  Amended  by  Stats.  1915,  p.  1541. 

§  453flF.  Mortgage  participation  certificates  and  guaranteed 
securities  made  legal  investments  for  trust  funds,  insurance 
companies  and  others.  Mortgage  participation  certificates, 
also  securities  guaranteed  by  policies  of  mortgage  insurance 
issued  in  conformity  with  the  provisions  of  this  chapter  shall 
be  legal  investments  for  all  trust  funds  held  by  any  executor, 
administrator,  guardian,  trustee  or  other  person  holding  trust 
funds,  also  for  the  funds  of  insurance  companies,  banks, 
banking  institutions  and  trust  companies,  and  shall  be  ac- 
cepted by  the  state  of  California,  its  officers  and  ol^cials,  as 
securities  comprising  any  part  of  any  fund  or  deposit  required 
by  law  to  be  made  with  the  state  of  California,  or  any  officer 
or  official  thereof,  by  any  trust  company  or  insurance  com- 
pany doing  business  in  the  state  of  California,  and  all 
premiums  required  to  be  paid  according  to  the  terms  of  any 
such  mortgage  participation  certificate,  or  other  policy  of 
mortgage  insurance,  may  be  charged  to  or  paid  out  of  the 
income  from  the  note  or  notes  or  bond  or  bonds  covered 
thereby;  provided,  that  the  foregoing  provisions  of  this  sec- 
tion, in  so  far  as  they  refer  to  mortgage  participation  cer- 
tificates, shall  apply  only  to  such  mortgage  participation  cer- 
tificates as  evidence  the  ownership  of  shares  or  interests  in, 
or  participation  in,  securities  which  shall  have  been  assigned 
to  a  trust  company  organized  and  doing  business  under  the 
laws  of  and  within  this  state  and  shall  be  held  by  such  trust 
company  for  the  common  and  equal  benefit  of  the  holders  of 
all  mortgage  participation  certificates  issued  or  to  be  issued 
evidencing  the  ownership  of  shares  or  interests  in,  or  partici- 
pation in,  any  particular  security  or  group  of  securities  so 
assigned  and  such  trust,  and  the  administration  thereof,  shall 
at  all  times  be  and  hereby  is  expressly  made  subject  to  the 
inspection,  supervision  and  control  of  the  superintendent  of 


§  453ff  CIVIL  CODE.  212 

banks  as  fully  and  completely  as  if    the  same  constituted  a 
court  trust  under  the  provisions  of  the  bank  act;  provided, 
also,  that  each  such  mortgage  participation  certificate  must 
bear  the  certificate  of  such  trust  company  to  the  effect  that 
the  aggregate  amount  of  mortgage  participation  certificates 
then  outstanding,  including  both  the  one  being  certified  and 
all  others  based  on  the  same  security  or  group  of  securities, 
does  not  exceed  the  amount  of  the  unpaid  principal  of  the 
debt  or  debts  evidenced  by  such  particular  security  or  group 
of  securities ;  provided,  also,  that  each  security  so  assigned 
shall  be  accompanied  by  a  copy  of  the  appraisement  and  of 
the  certificate  of  the  directors  filed  or  to  be  filed  with  the 
insurance  commissioner  as  required  by  the  provisions  of  this 
chapter ;    provided    also,  that  a    copy  of  each  such  appraise- 
ment and    accompanying    certificate  of  the  directors  shall  be 
promptly,  upon  the  assignment  of  each  such  security,  trans- 
mitted to  the  superintendent  of  banks,   and  that  each  such 
copy  of  appraisement  so  transmitted  shall  bear  an  endorse- 
ment or  certificate  executed  by  the    trust  company  to  v^hich 
each  such  security  is  so  assigned  reciting  and  setting  forth 
the  amount    of  the    unpaid    principal  named  in  the  security 
which  covers  the  property  described  in  such  appraisement; 
provided,  also,  that  if  any  such  mortgage  participation  certifi- 
cates, or  securities  guaranteed  by  policies  of  mortgage  insur- 
ance issued  in  conformity  with  the  provisions  of  this  chapter, 
are  used  as  securities  comprising  any  part  of  any  fund  or 
deposit  required  by  law  to  be  made  with  the  state  treasurer 
by  a  trust  company,  the  securities  so  guaranteed  or  the  owner- 
ship of,  or  participation  in,  which  is  evidenced  by  such  partici- 
pation certificates  must  constitute  a  first  lien  on  improved  and 
productive  real  estate  in  the  state  of  California,  such  improved 
real  estate  being  worth  at  least  double  the  amount  of  such 
lien ;  and  also  that  the  real  estate  and  improvements  which  are 
covered  by  the    lien  of  any    security  so    guaranteed  or  the 
ownership  of,  or  participation  in,  which  is  evidenced  by  mort- 
gage participation  certificates  which  are  so  used  shall  be  re- 
appraised at  least  once  every  two  years  and  in  the  manner 
in  this  chapter  provided  for  appraisements,  and  a  copy  of 
each  such  reappraisement  shall  be  filed  with  the  trust  com- 
pany to  which  such  security  shall  have  been  assigned  and  the 
original  of  each  such  reappraisement  bearing  the  indorsement 
or  certificate  of  such  trust  company  as  to  the  amount  of  the 
unpaid  principal  named  in  such  security  shall  be  filed  with 
the    superintendent  of    banks;    provided,    further,    that  the 
legality  or  validity  of  entire  mortgage  guaranties  and  mort- 
gage participation  certificates  heretofore  issued  Avhich  fully 
conform  to  and  comply  with  the  law  iu  force  at  date  of  issu- 


213  MORTGAGE  INSURANCE  COMPANIES.  §  453gg 

ance  shall  not  be  affected  or  impaired  by  the  provisions  of  this 
chapter  and  such  eirtire  mortgage  guaranties  and  mortgage 
participation  certificates  shall  continue  to  be  legal  invest- 
ments and  recognized  for  all  purposes  to  the  extent  and  in  the 
manner  provided  by  the  law  in  force  at  date  of  such  issuance. 
A  mortgage  insurance  company  which  issues  mortgage 
participation  certificates  in  accordance  with  the  provisions  of 
this  section  may  at  any  time  and  from  time  to  time  substitute 
for  any  security  or  securities  comprising  or  constituting  a 
part  or  parts  of  a  group  of  securities,  the  ownership  of,  or 
participation  in,  which  is  evidenced  in  w^hole  or  in  part  by 
any  such  participation  certificates,  other  securities  similarly 
guaranteed  by  it  and  withdraw  from  the  trust  company  the 
security  or  securities  for  which  such  substitution  shall  be 
made ;  provided,  however,  that  at  all  times  the  amount  of 
the  unpaid  principal  of  the  debts  evidenced  by  the  particular 
group  of  securities  held  by  such  trust  company  and  affected 
by  any  such  substitution  shall  not  be  less  than  the  aggregate 
amount  of  the  participation  certificates  theretofore  issued 
then  outstanding  and  evidencing  the  ownership  of  undivided 
or  other  partial  shares  or  interests,-  or  participation,  in  such 
group  of  securities ;  and  provided,  further,  that  the  right  of 
substitution  hereinbefore  provided  and  the  exercise  thereof 
shall  not  alter  or  affect  the  status  of  such  participation  certifi-  , 
cates  as  legal  investments  for  trust  funds,  insurance  com- 
panies, banks,  banking  institutions  and  trust  companies  as 
hereinbefore  provided,  or  as  securities  acceptable  by  the  state 
of  California,  its  officers  and  officials,  as  comprising  or  consti- 
tuting any  fund  or  deposit,  or  any  part  thereof,  required  by 
law  to  be  made  with  the  state  of  California,  or  any  officer  or 
official  thereof,  by  any  trust  company  or  insurance  company 
doing  business  in  the  state  of  California.  [Amendment  ap- 
proved 1915;  Stats.  1915,  p.  1542.] 

Legislation  §  453ff.  1.  Added  by  Stats.  1913,  p.  480,  and  then  read: 
"No  corporation  shall  make  any  insurance  contract  or  issue  any  policy 
of  mortgage  insurance,  or  engage  in  the  business  of  a  mortgage  insur- 
ance company  until  it  has  obtained  from  the  insurance  commissioner 
his  certificate  that  such  company  has  complied  with  the  provisions  of 
this  chapter  and  is  duly  authorized  to  do  business  as  such  mortgage 
insurance  company;  provided,  that  any  corporation  heretofore  organ- 
ized under  the  laws  of  this  state  for  the  purpose  of  guaranteeing  the 
payment  of  mortgages  shall  have  the  right  to  transact  business  as  a 
mortgage  insurance  company  until  the  first  day  of  January,  A.  D.  1914; 
provided,  also,  that  the  failure  of  such  company  to  obtain  the  certifi- 
cate of  the  insurance  comiiiissiouer  re(]uired  by  the  terms  of  this  act 
on  or  before  said  date  shall  terminate  such  right  to  transact  such  busi- 
ness until  such  certificate  shall  be  obtained." 
2.   Amendment  by  Stats.  1915,  p.  L142. 

§453gg.     Quarterly    reports    to    insurance     commissioner. 

Every  mortgage  insurance    company  shall    make  a  report  in 


§  453gg  CIVIL  CODE.  214 

writing  to  the  insurance  commissioner,  which  report  shall  be 
made  quarterly,  and  shall  be  verified  b^  the  oath  of  its  presi- 
dent or  vice-president,  and  its  secretary  or  treasurer  or  of  any 
two  of  its  principal  officers.  Such  report  shall  contain  a 
statement  of  each  new  policy  of  mortgage  insurance  issued 
by  such  company  since  the  last  preceding  report,  stating 
specifically  whether  such  policy  constitutes  an  entire  mort- 
gage guaranty  or  a  mortgage  participation  certificate. 

"When  such  policy  constitutes  an  entire  mortgage  guaranty, 
such  report  shall  set  forth  separately  the  following  facts 
regarding  the  security  on  which  the  policy  is  based,  namely: 

1.  The  aggregate  amount  of  the  unpaid  principal  indebted- 
ness evidenced  by  such  security. 

2.  A  description  of  the  property  covered  by  such  security. 

3.  Separately,  the  market  value  of  the  land  and  the  market 
value  of  the  improvements  thereon,  if  any,  as  shown  by  an 
appraisement  as  provided  for  by  the  terms  of  this  section, 
also  the  aggregate  value  of  such  land  and  improvements. 

4.  The  book  and  page  of  the  record  of  the  mortgage  or 
deed  of  trust  which  is  a  part  of  such  security. 

When  such  policy  constitutes  a  mortgage  participation  cer- 
tificate such  report  shall  set  forth,  directly  or  by  reference  to 
a  previous  report,  separately  the  following  facts-regarding  the 
security  or  securities  on  which  such  participation  certificate  is 
based,  namely : 

1.  The  aggregate  amount  of  unpaid  principal  indebtedness 
evidenced  and  secured  by  such  security  or  securities,  and, 
separately,  the  amount  of  the  unpaid  principal  indebtedness 
evidenced  and  secured  by  each  such  security. 

2.  A  description  of  the  property  covered  by  each  such 
security. 

3.  Separately,  the  market  value  of  the  land  and  the  market 
value  of  the  improvements  thereon,  if  any,  as  shown  by  an 
appraisement  as  provided  for  by  the  terms  of  this  section, 
also  the  aggregate  value  of  such  land  and  improvements. 

4.  The  book  and  page  of  the  record  of  each  mortgage  and 
deed  of  trust  which  is  part  of  such  security  or  securities. 

5.  The  aggregate  amount  of  participation  certificates  issued, 
outstanding  and  based  upon  the  particular  security  or  group 
of  securities  on  which  the  certificate  so  reported  is  based. 

There  shall  be  filed  with  such  report  an  appraisement  of 
each  separate  parcel  of  property  mentioned  in  the  report,  an 
appraisement  of  Avhich  has  not  theretofore  been  made  and  filed 
in  accordance  with  the  provisions  of  this  section,  which  ap- 
praisement shall  be  made  by  a  person  or  corporation  approved 
by  the  insurance  commissioner  and  by  the  superintendent  of 
banks.     In  such  appraisement  the  market  value  of  each  parcel 


215  MORTGAGE  INSURANCE  COMPANIES.  §  453gg 

of  land  and  of  the  improvements  thereon,  if  any,  also  the 
aggregate  value  of  such  parcel  of  land  and  improvements  shall 
be  stated,  together  with  a  general  statement  of  the  character 
of  such  land  and  of  the  kind  and  condition  of  such  improve- 
ments, if  any. 

Such  appraisement  shall  be  signed  and  verified  by  such 
appraiser,  or  by  an  officer  of  the  corporation  making  such 
appraisement,  and  shall  be  accompanied  by  a  certificate  signed 
and  verified  by  at  least  three  directors  of  such  mortgage  insur- 
ance company  to  the  effect  that  in  the  opinion  of  the  affiants 
and  each  of  them  such  appraisement  is  correct,  and  that  in 
their  opinion  the  amount  thereof  does  not  exceed  the  market 
value  of  the  property,  and  that  the  principal  amount  lent  on 
the  security  of  such  property  does  not  in  their  opinion  exceed 
fifty  per  centum  of  the  market  value  of  such  property,  also  . 
to  the  effect  that  said  company  has  in  its  possession  or  control 
evidences  of  title  consisting  of  a  full  abstract  of  title,  a  full 
certificate  or  guaranty  of  title,  or  a  policy  of  title  insurance, 
showing  that  the  mortgage  or  deed  of  trust  securing  such  loan 
is  a  first  lien  upon  a  marketable  title  in  fee  to  the  property 
covered  thereby. 

In  case  of  the  neglect  or  iailure  of  any  such  mortgage  insur- 
ance company  to  make  any  such  quarterly  report  as  herein 
provided,  such  company  shall  forfeit  to  the  state  of  California 
ten  dollars  per  day  for  every  day  during  which  such  neglect 
or  failure  continues ;  provided,  however,  that  the  insurance 
commissioner  shall  have  authority  to  extend  the  time  within 
which  any  such  report  may  be  filed  for  not  exceeding  a 
period  of  ten  days.  [Amendment  approved  1915 ;  Stats.  1915, 
1544.] 

Legislation  §  453gg.  1.  Added  by  Stats.  1913,  p.  480,  and  then  read: 
"A  mortoage  insurance  company  may  invest  its  capital  and  accumu- 
lations in  the  following  named  securites:  1.  In  the  purchase  of,  or 
loans  upon  interest-bearing  bonds  of  the  United  States,  or  those  for 
which  the  faith  and  credit  of  the  United  States  are  pledged  for  the 
payment  of  principal  and  interest.  2.  In  the  purchase  of,  or  loans 
upon  interest-bearing  bonds  of  any  of  the  states  of  the  United  States 
not  in  default  for  interest  on  such  bonds,  including  bonds  of  this  state, 
or  those  for  which  the  faith  and  credit  of  the  state  of  California  are 
pledged  for  the  paj'ment  of  principal  and  interest.  3.  In  the  purchase 
of,  or  loans  upon  interest-bearing  bonds  of  any  of  the  counties  and  in- 
corporated cities  and  towns,  and  duly  organized  school  districts  of  any 
state  or  territory  of  the  United  States  not  in  default  for  interest  on 
such  bonds.  4.  In  the  purchase  of,  or  loans  upon  interest-bearing 
bonds  of  irrigation  districts  as  provided  or  authorized  by  section  8  of 
an  act  entitled  'An  act  relating  to  bonds  of  irrigation  districts,  pro- 
viding uncler  what  circumstances  such  bonds  may  be  made  legal  invest- 
ments for  the  funds  of  banks,  banking  associations,  trust  companies, 
insurance  companies,  and  for  the  state  school  funds  and  trust  funds, 
and   providing  for  the   deposit   of   such   bonds   as   security  for   public 


§  454  CIVIL  CODE.  216 

moneys,  and  providing  for  a  commission  for  approving  certain  bonds  of 
irrigation  districts,  for  a  report  thereon,  for  the  tiling  of  such  report, 
for  a  certificate  of  the  state  controller,  and  for  the  recording  of  snch 
bonds  in  the  office  of  the  state  controller,'  approved  December  18,  1911. 
5.  In  loans  secured  by  mortgage  or  deed  of  trust  upon  unencumbered 
real  estate,  improved  or  unimproved,  or  in  the  purchase  of,  or  loans 
upon  notes  or  bonds  so  secured;  provided,  that  the  principal  so  loaned, 
or  the  entire  note  or  bond  issue  under  such  mortgage  or  deed  of  trust 
shall  not  exceed  sixty  per  centum  of  the  market  value  of  such  real 
estate  with  improvements  taken  as  security;  and  provided,  further, 
in  case  said  loan  is  made,  or  said  note  or  bond  issue  created  for  a 
building  loan  on  real  estate,  that  at  no  time  shall  the  principal  so 
loaned,  or  the  entire  note  or  bond  issue,  exceed  sixty  per  centum  of 
the  market  value  of  the  real  estate  and  the  actual  cost  of  the  improve- 
ments thereon  taken  as  security.  No  mortgage  insurance  company 
shall  invest  in,  hold  or  own  any  of  the  capital  stock  of  any  other  cor- 
poration, nor  make  any  loan,  in  whole  or  in  part,  on  the  security  of 
the  capital  stock  of  any  other  corporation." 
2.  Amendment  by  Stats.  1915,  p.  1541. 

§  453hh.     Quarterly    reports    to    insurance    commissioner. 

[Repealed  1915;  Stats.  1915,  p.  1538.] 

Legislation  §  453hh.     1.  Added  by  Stats.  1913,  p.  482. 
2.   Repealed  by  Stats.  1915,  p.  1538,  when  the  entire  chapter  was  re- 
vised. 


TITLE  III. 
Railroad  Corporations. 

Chapter  I.     OfTicers    and    Corporate    Stock.     §§  454-459. 
II.     Enumeration  of  Powers.     §§  465-478. 
III.     Business,  how  Conducted.     §§  479-494. 


CHAPTER  I. 

Officers  and  Corporate  Stock. 

§  454.  Directors  to  be  elected,  when. 

§  455.  Additional  provisions  in  assessment  and  transfer  of  stock. 

§  456.  Corporations  may  borrow  money  and  issue  bonds.     Limitation  of 

amount. 

§  457.  To  provide  a  sinking  fund  to  pay  bonds. 

§  458.  Capital  stock  to  be  fixed. 

§  459.  Certificate  of  payment  of  fixed  capital  stock. 

§  454.  Directors  to  be  elected,  when.  Directors  of  railroad 
eorporatioiis  may  be  elected  at  a  meeting  of  tbe  stockholders 
other  than  the  annual  meetino'.  as  a  majority  of  the  fixed 
capital  stock  may  determine,  or  as  the  by-laws  may  provide: 
notice  thereof  to  be  given  as  provided  for  notices  of  meetings 
to  adopt  by-laws  in  article  two,  chapter  one.  title  one.  of  this 
part. 

Legislation  §  454.     Enacted   March   21,   1872;    based   on   Stats.    1861. 

p.  613.  §  13;   Stats.  1863,  p.  610.  §  4. 


217       RAILROAD  CORPORATIONS.   CORPORATE  STOCK.      §  456 

§  455.  Additional  provisions  in  assessment  and  transfer  of 
stock.  No  stock  in  any  railroad  corporation  is  transferable 
until  all  the  previous  calls  or  installments  thereon  have  been 
fully  paid  in ;  nor  is  any  such  transfer  valid,  except  as  between 
the  parties  thereto,  unless  at  least  twenty  per  cent  has  been  paid 
thereon  and  certificates  issued  therefor,  and  the  transfer  ap- 
proved by  the  board  of  directors. 

Legislation  §  455.     Enacted   March   21,   1872;    based   on   Stats.   1861, 

p.  612,  §  12;  Stats.  1863,  p.  613,  §  3. 

§  456  Corporations  may  borrow  money  and  issue  bonds. 
Limitation  of  amount.  Railroad  corporations  may  borrow,  on 
the  credit  of  the  corporation  and  under  such  regulations  and  re- 
strictions as  the  board  of  directors  thereof,  by  unanimous  con- 
currence, may  impose,  such  sums  of  money  as  may  be  neces- 
sary for  constructing  and  completing  their  railroad,  with  its 
equipments,  and  for  the  purchase  of  all  necessary  rolling- 
stock  and  all  else  relative  thereto,  and  may  issue  promissory 
notes  therefor,  or  may  issue  and  dispose  of  bonds  to  raise 
moneys  necessary  to  pay  therefor,  at  a  rate  of  interest  not 
exceeding  ten  per  cent  per  annum ;  and  may  also  issue  bonds, 
or  promissory  notes,  at  the  same  rate  of  interest  in  payment 
of  any  debts  or  contracts  for  constructing  and  completing  their 
road,  with  its  equipments  and  rolling-stock,  and  all  else  rela- 
tive thereto,  and  for  the  purchase  of  railroads  and  other 
property  within  the  purpose  of  the  corporation.  The  amount 
of  bonds,  or  promissory  notes,  issued  for  such  purposes  must 
not  exceed  in  all  the  amount  of  their  capital  stock ;  and  to 
secure  the  payment  of  such  bonds,  or  notes,  they  may  mort- 
gage their  corporate  property  and  franchises,  or  may  secure 
the  payments  of  such  bonds,  or  notes,  by  deed  of  trust  of  their 
corporate  property  and  franchises.  Any  person  or  corporation 
formed  under  the  laws  of  this  state,  or  of  any  other  state 
within  the  United  States,  that  the  directors  of  the  rail- 
road corporation  may,  by  unanimous  concurrence,  select,  may 
be  trustees  in  such  deed  of  trust.  [Amendment  approved 
1899;  Stats.  1899,  p.   57.] 

Debt  exceeding  available  means.  Penalty:  See  Pen.  Code,  §  566. 
Legislation  §  456.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  610,  §  1.5;  Stats.  1862,  p.  547,  §  1),  and  then  read:  "Railroad  corpora- 
tions may  borrow,  on  the  credit  of  the  corporation  and  under  such 
regulations  and  restrictions  as  the  directors  thereof,  by  unanimous 
concurrence,  may  impose,  such  sums  of  money  as  may  be  necessary 
for  constructing  and  completing  their  railroad,  and  may  issue  and  dis- 
pose of  bonds  or  promissory  notes  therefor,  in  denominations  of  not 
less  than  tive  hundred  dollars,  and  at  a  rate  of  interest  not  exceeding 
ten  per  cent  per  annum;  and  may  also  issue  bonds  or  promissory  notes, 

kof   the  same   denomination   and   rate   of   interest,   in   payment   of   any 
debts  or   contracts  for   constructing   and   completing  their  road,   with 


§  459  CIVIL  CODE.  218 

its  equipments  and  all  else  relative  thereto.  The  amount  of  bonds  or 
promissory  notes  issued  for  such  purposes  must  not  exceed,  in  all,  the 
amount  of  their  capital  stock;  and  to  secure  the  payment  of  such  bonds 
or  notes,  the}'  may  mortgage  their  corporate  property  and  franchise." 

2.  Amended  by  Code  Amdts.  1880,  p.  10,  (1)  at  end  of  first  sentence, 
adding  "and  for  the  purchase  of  railroads  and  other  property  within 
the  purposes  of  the  corporation";  (2)  changing  "franchise"  (the  last 
word  of  the  section)  to  "franchises,"  and  adding  thereafter  the  matter 
in  the  present  section. 

3.  Amended  by  Stats.  1897,  p.  73,  and  then  read  as  the  amendment 
of  1899,  except  for  the  changes  made  at-  that  session  of  the  legislature. 

i.  Amended  by  Stats.  1899,  p.  57,  (1)  in  first  sentence,  (a)  omitting, 
after  "necessary  to  pay  therefor,"  the  words  "in  denominations  of  not 
less  than  five  hundred  dollars,"  (b)  changing,  after  "or  promissory 
notes,"  the  words  "of  the  same  denomination  and  rate"  to  "at  the 
same  rate";  (2)  in  sentence  beginning  "The  amount,"  changing  "pay- 
ment" to  "payments,"  in  second  instance  (as,  to  which,  quaere);  the 
amendment  becoming  a  law,  under  constitutional  provision,  without 
governor's  approval. 

§  457.  To  provide  a  sinking  fund  to  pay  bonds.  The  di- 
rectors must  provide  a  sinking'  fund,  to  be  specially  applied 
to  the  redemption  of  such  bonds  on  or  before  their  maturity, 
and  may  also  confer  on  any  holder  of  any  bond  or  note  so 
issued,  for  money  borrowed  or  in  payment  of  any  debt  or 
contract  for  the  construction  and  equipment  of  such  road,  the 
right  to  convert  the  principal  due  or  owing  thereon  into  stock 
of  such  corporation,  at  any  time  within  eight  years  from  the 
date  of  such  bonds,  under  such  regulations  as  the  directors 
may  adopt. 

Legislation  §  457.     Enacted  March  21,   1872;   based  on   Stats.   1861, 

p.  614,  §  15;  Stats.  1862,  p.  547,  §  1. 

§  458.  Capital  stock  to  be  fixed.  When,  at  any  time  after 
filing  the  articles  of  incorporation,  it  is  ascertained  that  the 
capital  stock  therein  set  out  is  either  more  or  less  than  ac- 
tually required  for  constructing,  equipping,  operating,  and 
maintaining  the  road,  by  a  two-third  vote  of  the  stockholders 
the  capital  stock  must  be  fixed,  and  a  certificate  thereof,  and 
of  the  proceedings  had  to  fix  the  same,  must  be  made  out  and 
filed  in  the  office  of  the  secretary  of  state. 

Legislation  §  458.     Enacted   March   21,   1872;    based   on   Stats.    1861, 

p.  610,  §  6. 

§  459.  Certificate  of  payment  of  fixed  capital  stock.  With- 
in thirty  days  after  the  payment  of  the  last  installment  of 
the  fixed  capital  stock  of  any  railroad  corporation  organized 
under  this  title  and  part,  the  president  and  secretary'  and  a 
majority  of  the  directors  thereof  must  make,  subscribe,  and 
file  in  the  office  of  the  secretary  of  state  a  certificate,  stating 
the  amount  of  the  fixed  capital  stock,   and  that  the  whole 


219      RAILROAD   CORPORATIONS.      ENUMERATION   OP   POWERS.       §  465 

thereof  has  been  paid  in.     The  certificate  must  be  verified  by 
the  affidavit  of  the  president  and  secretary. 

Legislation  §  459.     Enacted  March   21,   1872;    based   on   Stats.    1861, 
p.  614,  §  16. 

CHAPTER  II. 

Enumeration  of  Powers. 

§  465.     Eailroad  corporations.     Enumeration  of  powers. 

§  465a.  "What  motive  power  may  be  used;  authority  must  be  obtained. 

§  466.     Map  and  profile  to  be  filed. 

§  467.     May  change  line  of  road. 

§  468.  Forfeiture  of  franchise.  Construction  must  be  commenced  and 
continued;  operation. 

§  469.     Crossings  and  intersections.     Condemnation. 

§  470.  Not  to  use  streets,  alleys,  or  water,  in  cities  or  towns,  except  by 
a  two-third  vote  of  the  city  or  town  authorities. 

§  471.  Eailroads  through  cities  not  to  charge  fare  to  and  from  points 
therein.     [Eepealed.] 

§  472.  When  crossing  railroads  or  highways,  how  other  lands  are  ac- 
quired. 

§  473.  Corporations  may  consolidate.  Publication  of  notice.  Copy  to  be 
filed. 

§  473a.  Eight  to  lease  or  use  another  road  in  common. 

§  474.     State  lands  granted  for  use  of  corporations. 

§  475.     Grant  not  to  embrace  town  lots. 

§  476.     Wood,  stone,  and  earth  may  be  taken  from  state  lands. 

§  477.     Lands  to  revert  to  state,  when. 

§  478.     Selections  made,  how  proved  and  certified  to. 

§465.     Railroad     corporations.     Enumeration     of    powers. 

Every  railroad  corporation  has  power  : 

1.  To  cause  such  examination  and  surveys  to  be  made  as  may 
be  necessary  to  the  selection  of  the  most  advantageous  route 
for  the  railroad  ;  and  for  such  purposes  their  officers,  agents  and 
employees  may  enter  upon  the  lands  or  waters  of  any  person, 
subject  to  liability  for  all  damages  which  they  may  do  thereto; 

2.  To  receive,  hold,  take,  and  convey,  by  deed  or  otherwise, 
as  a  natural  person,  such  voluntary  grants  and  donations  of 
real  estate  and  other  property,  which  may  be  made  to  it  to  aid 
and  encourage  the  construction,  maintenance  and  accommoda- 
tion of  such  railroad; 

3.  To  purchase,  or  by  voluntary  grants  or  donations  to  re- 
ceive, enter,  take  possession  of,  hold  and  use  all  such  real  estate 
and  other  property  as  may  be  absolutely  necessary  for  the  con- 
struction and  maintenance  of  such  railroads,  and  for  all  sta- 
tions, depots  and  other  purposes  necessary  to  successfully  work 
and  conduct  the  business  of  the  road ; 

4.  To  lay  out  its  road,  not  exceeding  ten  rods  wide,  and  to 
construct  and  maintain  the  same,  with  one  or  more  tracks,  and 
with  such  appendages  and  adjuncts  as  may  be  necessary  for 
the  convenient  use  of  the  same ; 


§  465  CIVIL  CODE.  220 

5.  To  coiistriict  their  roads  across,  along  or  upon  any  stream 
of  water,  watercourse,  roadstead,  bay,  navigable  stream,  street, 
avenue  or  highway,  or  across  any  railway,  canal,  ditch  or  flume 
which  the  route  of  its  road  intersects,  crosses  or  runs  along,  in 
such  manner  as  to  afford  security  for  life  and  property;  but 
the  corporation  shall  restore  the  stream  or  watercourse,  road, 
street,  avenue,  highway,  railroad,  canal,  ditch  or  flume  thus 
intersected  to  its  former  state  of  usefulness  as  near  as  may  be, 
or  so  that  the  railroad  shall  not  unnecessarily  impair  its  use- 
fulness or  injure  its  franchise ; 

6.  To  cross,  intersect,  join,  or  unite  its  railroad  with  any 
other  railroad,  either  before  or  after  construction,  at  any  point 
upon  its  route,  and  upon  the  grounds  of  such  other  railroad 
coi-poration,  with  the  necessary  turnouts,  sidings  and  switches, 
and  other  conveniences  in  furtherance  of  the  objects  of  its 
connections ;  and  every  corporation  whose  railroad  is,  or  shall 
be  hereafter  intersected  by  any  new  railroad,  shall  unite  Avith 
the  owners  of  such  new  railroad  in  forming  such  intersections 
and  connections,  and  grant  facilities  therefor ;  and  if  the  two 
corporations  cannot  agree  upon  the  amount  of  compensation  to 
be  made  therefftr,  or  the  points  or  the  manner  of  such  crossings, 
intersections  and  connections,  the  same  shall  be  ascertained  and 
determined  as  is  provided  in  title  seven,  part  three,  Code  of 
Civil  Procedure  (sees.  1237-1263)  ; 

7.  To  purchase  lands,  timber,  stone,  gravel  or  other  materials 
to  be  used  in  the  construction  and  maintenance  of  its  road,  and 
all  necessary  appendages  and  adjuncts,  or  acquire  them  in  the 
manner  provided  in  title  seven,  part  three.  Code  of  Civil  Pro- 
cedure, for  the  condemnation  of  lands ;  and  to  change  the  line 
of  its  road,  in  Avhole  or  in  part,  whenever  a  majority  of  the 
directors  so  determine,  as  is  provided  hereinafter ;  but  no  such 
change  must  vary  the  general  route  of  such  road,  as  contem- 
plated in  its  articles  of  incorporation ; 

8.  To  carrj"  persons  and  property  on  their  railroad,  and  to 
receive  tolls  or  compensation  therefor; 

9.  To  erect  and  maintain  all  necessary  and  convenient  build- 
ings, stations,  depots,  fixtures  and  machinery  for  the  accommo- 
dation and  use  of  their  passengers,  freight  and  business ; 

10.  To  regulate  the  time  and  manner  in  which  passengers 
and  property  shall  be  transported,  and  the  tolls  and  compen- 
sation to  be  paid  therefor  within  the  limits  prescribed  by  law 
and  subject  to  alteration,  change  or  amendment  by  the  legis- 
lature at  any  time ; 

11.  To  regulate  the  force  and  speed  of  their  locomotives, 
cars,  trains  or  other  machinery  used  and  employed  on  their 
roads,  and  to  establisli,  execute  and  enforce  all  needful  and 


221      RAILROAD  CORPORATIONS.      ENUMERATION  OF  POWERS,       §  465a 

proper  rules  and  regiilatious  for  the  management  of  its  business 
transactions  usual  and  proper  for  railroad  corporations ; 

12.  To  purchase,  lease  or  acquire  the  franchises,  rights  and 
property,  or  any  part  thereof,  of  any  railroad  corporation, 
leasing  or  owning  any  railroad  outside  of  the  state  of  California, 
and  to  operate  the  same,  and  to  use  the  franchises  of  any  such 
road,  and  to  build  and  operate  extensions  thereof;  provided 
that  nothing  herein  shall  authorize  any  corporation  to  purchase 
the  franchises,  rights,  and  property  of  any  railroad  operated  in 
competition  with  it;  and  to  purchase,  acquire  and  hold  the 
stocks,  bonds  or  other  securities  of  any  railroad  corporation  or- 
ganized under  the  laws  of  this  state  or  of  any  other  state  or 
territory,  with  full  power  to  sell  the  same ;  provided  that  noth- 
ing herein  will  authorize  any  corporation  to  purchase  the  stock 
of  any  railroad  corporation  operated  in  competition  with  it. 
[Amendment  approved  1907;  Stats.  1907,  p.  99.] 

Exceeding  limit  upon  power  to  acquire  realty:  ISee  ante,  §  ;iG(). 
Eminent  domain:  Sec  Code  Civ.  J'roc.,  §§  1237-1263. 
Subd.  6.     Crossings  and  intersections:  Hee  post,  §  4(39. 
Subd.  8.     Rates  of  charges:   See  post,  §  489.     Establishment  of  rates 
by  railroad  commissioners:  See  Const.,  art.  xii.  §  22. 

Subd.  10.  Regulating  time  and  manner,  of  transportation,  time-tables 
of  starting:  See  post,  §  4S1. 

Subd.  11.  Rules  and  regulations:  See  post,  §§  484,  2186. 
Subd.  12.  Purchase  of  franchise  of  other  roads:  See  j)()st,  §  494. 
Legislation  §  465.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  (i07,  SI"),  and  differed  from  the  amendment  of  1907,  (1)  in  subd.  1, 
not  having  the  word  "may"  before  "do  thereto"  at  end  of  subdivision 
(added  in  190.3);  (2)  having  in  subd.  4,  (a)  "nine  rods  wide,"  instead 
of  "ten  rods  wide,"  and  (b)  "a  single  or  double  track"  instead  of  "one 
or  more  tracks";  (3)  in  subd.  8,  not  having  the  sign  of  the  infinitive 
before  "receive";  (4)  not  containing  subd.  12  (added  in  1903). 

2.  Amendment  by  Stats.  1901,  p.  367;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1903,  p.  245,  (1)  in  subd.  1,  inserting  "may" 
before  "do  thereto,"  (2)  in  subd.  8,  adding  the  sign  of  the  infinitive 
before  "receive";  (3)  adding  subd.  12. 

4.  Amended  by  Stats.  1907,  p.  99,  the  changes  being  noted  supra. 

§  465a.  What  motive  power  may  be  used ;  authority  must 
be  obtained.  Every  person  or  corporation  now  or  hereafter 
authorized  to  operate  a  railroad  by  steam  motive  power,  is 
also  authorized  to  use  electricity  or  compressed  air,  or  both, 
either  with  or  without  such  steam,  for  the  purpose  of  pro- 
pelling cars  or  trains  on  such  railroad  or  upon  any  portion 
thereof.  In  incorporated  cities,  towns,  or  cities  and  counties 
having  more  than  five  thousand  inhabitants,  authority  must 
be  obtained   from  the  legislative  authority  thereof. 

Legislation  §  465a.  1.  .^dditiflu  by  Stats.  1901,  p.  368;  unconstitu- 
tional.    See  note,  §  4,  ante. 


§  468  CIVIL  CODE.  222 

2.  Added  by  Stats.  1905,  p.  574;  the  code  commissioner  saying,  "This 
section  is  a  codification  of  tlie  statute  of  1893,  p.  208,  relating  to  the 
operation  of  railroads." 

§  466.  Map  and  profile  to  be  filed.  Every  railroad  corpora- 
tion in  this  state  must,  within  a  reasonable  time  after  its  road 
is  finally  located,  cause  to  be  made  a  map  and  profile  thereof, 
and  of  the  land  acquired  for  the  use  thereof,  and  the  bound- 
aries of  the  several  counties  through  which  the  road  may  run, 
and  file  the  same  in  the  office  of  the  secretary  of  state;  and 
also  like  maps  of  the  parts  thereof  located  in  different  counties, 
and  file  the  same  in  the  office  of  the  clerk  of  the  county  in 
which  such  parts  of  the  road  are,  there  to  remain  of  record 
forever.  The  maps  and  profiles  must  be  certified  by  the  chief 
engineer,  the  acting  president  and  secretary  of  such  company, 
and  copies  of  the  same,  so  certified  and  filed,  be  kept  in  the 
office  of  the  secretary  of  the  corporation,  subject  to  examina- 
tion by  all  parties  interested. 

Legislation  §  466.     Enacted   March   21,   1872;    based   on   Stats.   1861, 

p.  621,  §  34. 

§  467.  May  change  line  of  road.  If,  at  any  time  after  the 
location  of  the  line  of  the  railroad  and  the  filing  of  the  maps 
and  profiles  thereof,  as  provided  in  the  preceding  section,  it 
appears  that  the  location  can  be  improved,  the  directors  may, 
as  provided  in  subdivision  seven,  section  four  hundred  and 
sixty-five,  alter  or  change  the  same,  and  cause  new  maps  and 
profiles  to  be  filed,  showing  such  changes,  in  the  same  offices 
where  the  originals  are  of  [on]  file,  and  may  proceed,  in  the 
same  manner  as  the  original  location  was  acquired,  to  acquire 
and  take  possession  of  such  new  line,  and  must  sell  or  relin- 
quish the  lands  owned  by  them  for  the  original  location,  within 
five  years  after  such  change.  No  new  location,  as  herein  pro- 
vided, must  be  so  run  as  to  avoid  any  points  named  in  their 
articles  of  incorporation. 

Changing  location:  See  ante,  §  465,  subd.  7. 

Legislation  §  467.     Enacted   March   21,   1872;    based   on   Stats.   1861, 

p.  616,  §  IS. 

§  468.  Forfeiture  of  franchise.  Construction  must  be  com- 
menced and  continued;  operation.  Every  railroad  corporation 
must,  within  two  years  after  filing  its  original  articles  of 
incorporation,  begin  the  construction  of  its  road,  and  must 
every  year  thereafter  complete  and  put  in  full  operation  at 
least  five  miles  of  its  road,  until  the  same  is  fully  completed; 
and  upon  its  failure  so  to  do,  for  the  period  of  one  year,  its 
right  to  extend  its  road  beyond  the  point  then  completed  is 
forfeited.     After  the  completion  of  any  railroad,  or  any  part 


223      RAILROAD   CORPORATIONS.      ENUMERATION   OF   POWERS.       §  469 

thereof,  capable  of  being  operated,  its  owner  must  operate 
it,  and  upon  his  failure  to  keep  it,  or  any  part  thereof,  in 
full  operation  for  the  period  of  six  months,  his  right  to 
operate  it  in  whole  or  in  part,  as  the  case  may  be,  is  forfeited, 
and  the  lands  ocenpied  for  the  purposes  of  the  road,  so  far 
as  the  same  is  not  operated,  revert  to  the  original  owners 
or  their  successors  in  interest.  A  railroad  is  in  full  opera- 
tion when  one  passenger  train,  or  one  mixed  train,  is  run  over 
it  once  a  day  in  each  direction  and  a  sufficient  number  of 
freight  trains  to  accommodate  the  traffic  on  the  road.  If  a 
railroad  is  wholly  constructed  at  an  elevation  of  five  thousand 
feet  or  more  above  the  level  of  the  sea,  its  owner  is  not  re- 
quired to  maintain  and  operate  it,  nor  to  run  passenger  or 
other  trains  thereon,  between  the  fifteenth  of  October  of  any 
year  and  the  fifteenth  of  May  of  the  year  following.  This 
section  must  not  be  construed  to  require  the  operation  of  a 
road  when  prevented  by  the  act  of  God,  nor  when  the  opera- 
tion of  the  road,  together  with  its  branch  and  trunk  lines, 
does  not  yield  income  sufficient  to  defray  the  expenses  of 
maintaining  and  operating  it  in  connection  with  its  branch  and 
trunk  lines.  The  railroad  commissioners  have  the  power  to 
examine  and  determine  whether  a  railroad,  together  with  its 
branch  and  trunk  lines,  yields  income  sufficient  to  operate  the 
same.      [Amendment  approved  1905;  Stats.  1905,  p.  574.] 

Organizing  and  commencing  work:  See  general  provision,  ante,  §  358. 

Act  enabling  railroad  companies  to  complete  railroads;  See  post,  Ap- 
pendix, tit.  "Eailroads." 

Legislation  §  468.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  626,  §  54;  Stats.  1869-70,  p.  578,  §  2),  and  then  read:  "Every  railroad 
corporation  must,  within  two  years  after  filing  its  original  articles  of 
incorporation,  begin  the  construction  of  its  road,  and  must  every  year 
thereafter  complete  and  put  in  full  operation  at  least  five  miles  of 
its  road,  until  the  same  is  fully  completed;  and  upon  its  failure  so  to 
do,  for  the  period  of  one  year,  its  right  to  extend  its  road  beyond 
the  point  then  completed  is  forfeited." 

2.  Amendment  by  Stats.  1901,  p.  369;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  574;  the  code  commissioner  saying, 
"The  amendment  consists  in  codifying  and  adding  to  the  old  section 
the  provisions  of  the  statute  of  1880,  p.  43,  to  compel  the  operation 
of  railroads,  and  of  the  statute  of  1897,  p.  5,  to  provide  for  the  man- 
agement and  operation  of  railroads  above  certain  elevations." 

§  469.  Crossings  and  intersections.  Condemnation.  When- 
ever the  track  of  one  railroad  intersects  or  crosses  the  track 
of  another  railroad,  whether  the  same  be  a  street-raiload, 
wholly  within  the  limits  of  a  city  or  town,  or  other  railroad, 
the  rails  of  either  or  each  road  must  be  so  cut  and  adjusted 
as  to  permit  the  passage  of  the  cars  on  each  road  with  as 
little    obstruction   as   possible;   and,   in   case    the   persons   or 


§  472  CIVIL  CODE.  224 

corporations  owning  the  railroads  cannot  agree  as  to  the  com- 
pensation to  I  e  made  for  cutting  and  adjusting  the  rails,  the 
condemnation  of  the  right  of  way  over  the  one  for  the  use 
of  the  other  road  may  be  had  in  proceedings  under  title  seven, 
part  three.  Code  of  Civil  Procedure,  and  the  damages  assessed 
and  the  right  of  way  granted  as  in  other  cases. 

Right  of  eminent  domain:  Code  Civ.  Proc,  §§  1237-1263. 

Crossings  and  intersections:  See  ante,  §  465,  subd.  6.  See  also  Code 
Civ.  Proc,  §  1240. 

Railroad  crossings,  separation  of  grades:  See  Code  Civ.  Proc,  §  1240. 

Legislation  §  469.  Enacted  March  21,  1872;  based  on  Stats.  1862, 
p.  49S,  §  2. 

§  470.  Not  to  use  streets,  alleys,  or  water,  in  cities  or  towns, 
except  by  a  two-third  vote  of  the  city  or  town  authorities.     No 

railroad  corporation  must  use  any  street,  alley,  or  highway, 
or  any  of  the  land  or  water,  within  any  incorporated  city  or 
town,  unless  the  right  to  so  use  the  same  is  granted  by  a  two- 
third  vote  of  the  town  or  city  authority  from  which  the  right 

must  emanate. 

Legislation  §  470.  Enacted  March  21,  1872.  The  code  commission- 
ers say:  "This  is  a  limitation  upon  §  367,  general  provisions  of  corpora- 
tions." 

§  471.  Railroads  through  cities  not  to  charge  fare  to  and 
from  points  therein.  [Repealed  1878 ;  Code  Amdts.  1877-78, 
p.  84.] 

Legislation  §  471.     1.  Enacted  March  21,  1872. 

2.  Amended  bv  Code  Amdts.  1875-76,  p.  76. 

3.  Repealed  by  Code  Amdts.  1877-78,  p.  84. 

§472.  When  crossing  railroads  or  highways,  how  other 
lands  are  acquired.  Whenever  the  track  of  such  railroad 
crosses  a  railroad  or  highway,  such  railroad  or  highway  may 
be  carried  under,  over,  or  on  a  level  with  the  track,  as  may 
be  most  expedient;  and  in  cases  where  an  embankment  or 
cutting  necessitates  a  change  in  the  line  of  such  railroad  or 
highway,  the  corporation  may  take  such  additional  lands  and 
material  as  are  necessary  for  the  construction  of  such  road 
or  highway  on  such  new  line.  If  such  other  necessary  lands 
cannot  be  had  otherwise,  they  may  be  condemned  as  provided 
in  title  seven,  part  three.  Code  of  Civil  Procedure ;  and  when 
compensation  is  made  therefor,  the  same  becomes  the  property 
of  the  corporation. 

Crossings  and  intersections:   See  ante,  §  465,  subd.  6,  469.     See  also 

Code  Civ.  Proc,  §   1240. 
Legislation  §  472.     Enacted   March   21,   1872;   based  ou   Stats.   1861, 

p.  617,  §  19. 


225      RAILROAD    CORPORATIONS.       ENUMERATION    OF    POWERS.       §  473 

§  473.  Corporations  may  consolidate.  Publication  of  no- 
tice. Copy  to  be  filed.  Any  railroad  corporation  incorporated 
under  the  laws  of  this  state  may  consolidate  with  one  or 
more  railroad  corporations  incorporated  under  the  laws  of 
this  state,  or  under  the  laws  of  any  other  state  or  territory 
of  the  United  States,  its  capital  stock,  properties,  roads,  equip- 
ments, adjuncts,  franchises,  claims,  demands,  contracts,  agree- 
ments, obligations,  debts,  liabilities  and  assets  of  every  kind 
and  description,  upon  such  terms  and  in  such  manner  as  may 
be  agreed  upon  by  their  respective  boards  of  directors ;  pro- 
vided, no  such  consolidation  shall  take  effect  until  the  same 
shall  have  been  ratified  and  confirmed  in  writing  by  stock- 
holders of  the  respective  corporations  representing  three 
fourths  of  the  subscribed  capital  stock  of  their  respective  cor- 
porations. In  case  of  such  consolidation  "articles  of  incor- 
poration and  consolidation"  must  be  prepared,  setting  forth: 
First,  the  name  of  the  new  corporation;  .second,  the  purpose 
for  which  it  is  formed;  third,  the  place  where  its  principal 
business  is  to  be  transacted ;  fourth,  the  term  for  which  it  is 
to  exist,  which  shall  not  exceed  fifty  years :  fifth,  the  number 
of  its  directors  (which  shall  not  be  less  than  five,  nor  more 
than  thirteen),  and  the  names  and  residences  of  the  persons 
appointed  to  act  as  such  until  their  successors  are  elected  and 
qualified;  sixth,  the  amount  of  its  capital  stock  (which  shall 
not  exceed  the  amount  actually  required  for  the  purposes  of 
the  new  corporation,  as  estimated  by  competent  engineers), 
and  the  number  of  shares  into  which  it  is  divided ;  seventh, 
the  amount  of  stock  actually  subscribed,  and  by  Avhom;  eighth, 
the  termini  of  its  road  or  roads  and  branches;  ninth,  the 
estimated  length  of  its  road  or  roads  and  branches;  tenth, 
the  names  of  the  constituent  corporations,  and  the  terms  and 
conditions  of  consolidation  in  full.  Said  articles  of  incorpora- 
tion and  consolidation  must  be  signed  and  countersigned  by 
the  presidents  and  secretaries  of  the  several  constituent  cor- 
porations and  sealed  with  their  corporate  seals.  There  must 
be  annexed  thereto  memoranda  of  the  ratification  and  con- 
firmation thereof  by  the  stockholders  of  each  constituent  cor- 
poration, which  must  be  respectively  signed  by  stockholders 
representing  at  least  three  fourths  of  the  capital  stock  of 
their  respective  corporations.  "When  completed  as  aforesaid 
said  articles  must  be  filed  in  the  office  of  the  county  clerk  of 
the  county  in  which  the  orisrinal  articles  of  incorporation  of 
either  of  the  consolidating  corporations  are  filed,  and  a  copy 
of  the  articles  of  incorporation  and  consolidation  certified  by 
such  county  clerk  must  be  filed  in  the  office  of  the  secretary 
of   state,    and   thereupon   the    constituent    corporations   named 

Civ.  Code — 15 


§  473  CIVIL  CODE.  226 

therein  must  be  deemed  and  held  to  have  become  extinct  in 
all  courts  and  places,  and  said  new  corporation  must  be  deemed 
and  held  in  all  courts  and  places  to  have  succeeded  to  all  their 
several  capital  stocks,  properties,  roads,  equipments,  adjuncts, 
franchises,  claims,  demands,  contracts,  agreements,  assets, 
choses  and  rights  in  action  of  every  kind  and  description,  both 
at  law  and  in  equity,  and  to  be  entitled  to  possess,  enjoy, 
and  enforce  the  same  and  every  thereof,  as  fully  and  com- 
pletely as  either  and  every  of  its  constituents  might  have  done 
had  no  consolidation  taken  place.  Said  consolidated  or  new 
corporation  must  also,  in  all  courts  and  places,  be  deemed  and 
held  to  have  become  subrogated  to  its  several  constituents 
and  each  thereof,  in  respect  to  all  their  contracts  and  agree- 
ments with  other  parties,  and  all  their  debts,  obligations,  and 
liabilities,  of  every  kind  and  nature,  to  any  persons,  corpora- 
tions, or  bodies  politic,  whomsoever,  or  whatsoever,  and  said 
new  corporation  must  sue  and  be  sued  in  its  own  name  in  any 
and  every  case  in  which  any  or  either  of  its  constituents  might 
have  sued  or  might  have  been  sued  at  law  or  in  equity  had  no 
such  consolidation  been  made.  Nothing  in  this  section  con- 
tained shall  be  construed  to  impair  the  obligation  of  any  con- 
tract to  which  any  of  such  constituents  were  parties  at  the 
date  of  such  consolidation.  All  such  contracts  may  be  en- 
forced by  action  or  suit,  as  the  case  may  be,  against  the  con- 
solidated corporation,  and  satisfaction  obtained  out  of  the 
property  which,  at  the  date  of  the  consolidation,  belonged 
to  the  constituent  which  was  a  party  to  the  contract  in  action 
or  suit,  as  well  as  out  of  any  other  property  belonging  to  the 
consolidated  corporation.  [Amendment  became-  a  laAV  under 
constitutional  provision  1901  j  Stats.  1901,  p.  327.] 

Legislation  §  473.  1.  Enacted  March  21,  1872  (based  on  Stats.  1S61, 
p.  622,  §  40),  and  then  read:  "Two  or  more  railroad  corporations  may 
consolidate  their  capital  stock,  debts,  property,  assets,  and  franchises 
in  such  manner  as  may  be  agreed  upon  by  their  respective  boards  of 
directors.  No  such  amalgamation  or  consolidation  must  take  place 
without  the  written  consent  of  the  holders  of  three  fourths  in  value 
of  all  the  stock  of  each  corporation;  and  no  such  amalgamation  or 
consolidation  must  in  any  way  relieve  such  corporation  or  the  stock- 
holders thereof  from  any  and  all  just  liabilities.  In  case  of  such  amal- 
gamation or  consolidation,  due  notice  of  the  same  must  be  given,  by 
advertisement  for  one  month  in  at  least  one  newspaper  in  each  county, 
if  there  be  one  published  therein,  into  or  through  which  such  roads 
run,  and  also  for  the  same  length  of  time  in  one  paper  published  in 
Sacramento  and  in  two  papers  published  in  San  Francisco;  and  when 
the  consolidation  and  amalgamation  is  completed,  a  copy  of  the  new 
articles  of  incorporation  must  be  tiled  in  the  otHce  of  the  secretary  of 
state." 

2.  Amended  by  Stats.  1901,  p.  327;  becoming  a  law,  uncjer  constitu- 
tional provision,  without  governor's  approval. 


227        RAILROAD  CORPORATIONS.       ENUMERATION  OF  POWERS.       §  477 

§  473a.     Right  to  lease  or  use  another  road  in  common. 

Railroad  corporations  doing  business  in  this  state  and  organ- 
ized under  any  law  of  this  state  or  the  United  States,  or  of 
any  state  or  territory  thereof,  have  power  to  enter  into  con- 
tracts with  one  another,  whereby  the  one  may  lease  of  the 
other  the  whole  or  any  part  of  its  railroad,  or  may  acquire 
of  the  other  the  right  to  use,  in  common  with  it,  the  whole  or 
any  part  of  its  railroad. 

Legislation  §  473a.  1.  Addition  by  Stats.  1901,  p.  369;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  57.5;  the  code  commissioner  saying,  "§  2 
of  the  statute  of  18S0,  p.  21,  authorizing  railway  and  other  corporations 
organized  under  the  laws  of  this  state  or  of  any  stale  or  territory  of 
the  United  States  to  do  business  in  this  state,  on  equal  terms,  is  codified 
in  this  section." 

§  474.  State  lands  granted  for  use  of  corporations.  There 
is  granted  to  every  railroad  corporation  the  right  of  way  for 
the  location,  construction,  and  maintenance  of  their  necessary 
works,  and  for  every  necessary  adjunct  thereto,  over  any 
swamp,  overflowed,  or  other  public  lands  of  the  state  not 
otherwise  disposed  of  or  in  use,  not  in  any  case  exceeding  in 
length  or  width  that  which  is  necessary  for  the  construction 
of  such  works  and  adjuncts,  or  for  the  protection  thereof,  not 
in  any  case  to  exceed  two  hundred  feet  in  width. 
Legislation  §  474.     Enacted  March  21,  1872. 

§  475.  Grant  not  to  embrace  town  lots.  The  grants  men- 
tioned in  the  preceding  section  do  not  apply  to  public  lands 
of  the  state  within  the  corporate  limits  of  towns  and  cities, 
or  within  three  miles  thereof. 

Legislation  §  475.     Enacted  March  21,  1872. 

§476.  Wood,  stone,  and  earth  may  be  taken  from  state 
lands.  The  right  to  take  from  any  of  the  lands  belonging  to 
the  state,  adjacent  to  the  works  of  the  corporation,  all  ma- 
terials, such  as  wood,  stone,  and  earth,  naturally  appurtenant 
thereto,  which  may  be  necessary  and  convenient  for  the  origi- 
nal construction  of  its  works  and  adjuncts,  is  granted  to  such 
corporations. 

Legislation  §  476.     Enacted  March  21,  1872. 

§  477.  Lands  to  revert  to  state,  when.  If  any  corporation 
receiving  state  lands  or  appurtenances  thereunder  is  dissolved, 
ceases  to  exist,  is  discontinued,  or  the  route  or  line  of  its 
works  is  so  changed  as  not  to  cover  or  cross  the  lands  selected, 
or  the  use  of  the  lands  selected  is  abandoned,  such  selected 


§  479  CIVIL  CODE.  228 

lands  revert,  and  the  title  thereto  is  reinvested  in  the  state  or 
its  grantees,  free  from  all  such  uses. 

Legislation  §  477.     Enacted  March  21,  1872. 

§  478.     Selections  made,  how  proved  and  certified  to.     When 

any  selection  of  the  right  of  way,  or  land  for  an  adjunct  to  the 
works  of  a  railroad  corporation,  is  made  by  any  corporation, 
the  secretary  thereof  must  transmit  to  the  surveyor-general, 
controller  of  state,  and  recorder  of  the  county  in  which  the 
selected  lands  are  situate,  a  plat  of  the  lands  so  selected, 
giving  the  extent  thereof  and  uses  for  which  the  same  is 
claimed  or  desired,  duly  verified  to  be  correct;  and,  if  ap- 
proved, the  surveyor-general  must  so  indorse  the  plat,  and 
issue  to  the  corporation  a  permit  to  use  the  same,  unless,  on 
petition  properly  presented  to  the  court,  a  review  is  had  and 
such  use  prohibited. 

Legislation  §  478.     Enacted  March  21,  1872. 

CHAPTER  III. 

Business,  how  Conducted. 

§  479.     Checks  to  be  affixed  to  all  baggage.     Damages. 

§  480.     Annual  report  to  be  verified.     Form  of  report. 

§  481.     Duties  of  corporation. 

§  482.     Corporation   to   pay   damages   for  refusal. 

§  483.  Furnish  room  inside  passenger-cars,  and  be  responsible  for  dam- 
ages occurring  on  freight  and  other  cars. 

§  484.  Corporations  to  post  i>rinted  regulations,  and  not  responsible  for 
damages  in  violation  of  rules. 

§  485.     Maintenance  of  fences  along  railroads;  damages  for  killing  stock. 

§  485a.  Right  to  private  crossings  over  railroads. 

§  486.     Regulations  of  trains.     Penalty. 

§  487.     Passenger  refusing  to  pay  fare. 

§  4S8.     Officers  to  wear  badge. 

§  489.     Rates   of  charges. 

§  490.     Passenger-tickets,  how  issued,  and  to  be  good  for  six  months. 

§  491.     Character  of  rails  to  be  used. 

§  492.     Elevated   or  underground   railways. 

§  493.     To  apply  to  all  railroad  companies. 

§  494.     Sale  of   property  and   franchises  to  another  railroad. 

§479.     Checks  to  be  affixed  to  all  baggage.     Damages.     A 

check  must  be  affixed  to  every  package  or  parcel  of  baggage 
when  taken  for  transportation  by  any  agent  or  employee  of 
such  railroad  corporation,  and  a  duplicate  thereof  given  to  the 
passenger  or  person  delivering  the  same  in  his  behalf ;  and  if 
such  check  is  refused  on  demand,  the  railroad  corporation 
must  pay  to  such  passenger  the  sum  of  twenty  dollars,  to  be 
recovered  in  an  action  for  damages;  and  no  fare  or  toll  must 
be  collected  or  received  from  such  passenger,  and  if  such  pas- 
senger has  paid  his  fare,  the  same  must  be  returned  by  the 


229      RAILROAD  CORPORATIONS.     BUSINESS,  HOW  CONDUCTED.      §  481 

conductor  in  charge  of  the  train ;  and  on  producing  the  check, 
if  his  baggage  is  not  delivered  to  him  by  the  agent  or  em- 
ployee of  the  railroad  corporation,  he  may  recover  the  value 
thereof  from  the  corporation. 

Legislation  §  479.     Enacted   March   21,   1872;    based   on   Stats.   1861, 
p.  623,  §  42. 

§480.     Annual    report    to    be    verified.     Form    of    report. 

Every  railroad  corporation  must  make  an  annual  report  to  the 
secretary  of  state,  or  other  officer  designated  by  law,  of  its 
operations  for  each  year,  ending  on  the  thirty-first  day  of  De- 
cember, verified  by  the  oaths  of  the  president  or  acting  super- 
intendent of  operations,  the  secretary  and  treasurer  of  such 
corporation,  and  file  it  in  the  office  of  the  secretary  of  state, 
or  such  other  designated  officer,  by  the  twentieth  day  of  Feb- 
ruary, which  must  state : 

1.  The  capital  stock,  and  the  amount  thereof  actually  paid 
in; 

2.  The  amount  expended  for  the  purchase  of  lands  for  the 
construction  of  the  road,  for  buildings,  and  for  engines  and 
cars,  respectively ; 

8.  The  amount  and  nature  of  its  indebtedness,  and  the 
amount  due  the  corporation; 

4-.  The  amount  received  from  the  transportation  of  passen- 
gers, property,  mails,  and  express  matter,  and  from  other 
sources ; 

5.  The  amount  of  freight,  specifying  the  quantity  in  tons ; 

6.  The  amount  paid  for  repairs  of  engines,  cars,  buildings, 
and  other  expenses,  in  gross,  showing  the  current  expenses  of 
running  such  road ; 

7.  The  number  and  amount  of  dividends,  and  when  paid; 

8.  The  number  of  engine-houses  and  shops,  of  engines  and 
cars,  and  their  character. 

Legislation  §  480.     Enacted   March   21,  1872;    based   on   Stats.   1861. 
p.  624,  §  44. 

§  481.  Duties  of  corporation.  Every  such  corporation  must 
start  and  run  its  cars,  for  the  transportation  of  persons  and 
property,  at  such  regular  times  as  it  shall  fix  by  public  notice, 
and  must  furnish  sufficient  accommodations  for  the  transpor- 
tation of  all  such  passengers  and  property  as,  within  a  reason- 
able time  previous  thereto,  offer  or  are  offered  for  transporta- 
tion, at  the  place  of  starting,  at  the  junction  of  other  railroads, 
and  at  siding  and  stopping-places  established  for  receiving  and 
discharging  way  passengers  and  freight ;  and  must  take,  trans- 
port, and  discharge  such  passengers  and  property  at,  from,  and 


§  484  CIVIL  CODE.  230 

to  such  places,  on  the  due  payment  of  tolls,  freight,  or  fare 
therefor.     [Amendment  approved  1905;  Stats.  1905,  p.  575.] 

Rules  and  regulations:  See  post,  §  484. 

Legislation  §  481.  1.  Enacted  March  21,  1872;  based  on  Stats.  1861, 
p.  624,  §  45. 

2.  Amendment  by  Stats.  1901,  p.  369;  unconstitutional.  See  aote, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  575,  changing  (1)  "run  their  cars"  to 
"run  its  cars,"  (2)  "as  they  shall  fix"  to  "as  it  shall  fix,"  (3)  "offer  or 
is  offered" -to  "offer  or  are  offered";  the  code  commissioner  saying, 
"The  amendment  consists  in  the  substitution  of  the  word  'its'  for 
'their,'  and  the  substitution  of  'it'  for  'they,'  thus  correcting  errors  of 
grammar";  but  quaere  as  to  the  combination,  "the  transportation  of 
all  such  passengers  and  property  as  .  .  .  offer  or  are  offered  for  trans- 
portation." 

§  482.  Corporation  to  pay  damages  for  refusal.  In  case  of 
refusal  by  such  corporation  or  their  apjents  so  to  take  and 
transport  any  passengers  or  property,  or  to  deliver  the  same, 
at  the  regular  appointed  places,  such  corporation  must  pay  to 
the  party  aggrieved  all  damages  which  are  sustained  thereby, 
with  costs  of  suit. 

Legislation  §  482.  Enacted  March  21.  1872;  based  on  Stats.  1861, 
p.  624, §  46. 

§  483.  Furnish  room  inside  passenger-cars,  and  be  respon- 
sible for  damages  occurring  on  freight  and  other  cars.  Every 
railroad  corporation  must  furnish,  on  the  inside  of  its  passen- 
ger-ears, sufficient  room  and  accommodations  for  all  passen- 
gers to  whom  tickets  are  sold  for  any  one  trip,  and  for  all 
persons  presenting  tickets  entitling  them  to  travel  thereon; 
and  when  fare  is  taken  for  transporting  passengers  on  any 
baggage,  wood,  gravel,  or  freight  car,  the  same  care  must  be 
taken  and  the  same  responsibility  is  assumed  by  the  corpora- 
tion as  for  passengers  on  passenger-cars. 

Accommodations  to  be  furnished:  See  ante,  §  481. 

Legislation  §  483.     Enacted   March   21,   1872;    based   on   Stats.   1861, 

p.  625,  §  48. 

§  484.  Corporations  to  post  printed  regulations,  and  not 
responsible  for  damages  in  violation  of  rules.  Every  railroad 
corporation  must  have  printed  and  conspicuously  posted  on 
the  inside  of  its  passenger-cars  its  rules  and  regulations  re- 
garding fare  and  conduct  of  its  passengers ;  and  in  case  any 
passenger  is  injured  on  or  from  the  platform  of  a  car,  or  on 
any  baggage,  wood,  gravel,  or  freight  car,  in  violation  of  such 
printed  regulations,  or  in  violation  of  positive  verbal  instruc- 
tions or  injunctions  given  to  such  passenger  in  person  by  any 
officer  of  the  train,  the  corporation  is  not  responsible  for  dam- 


231      RAILROAD  CORPORATIONS.     BUSINESS,  HOW  CONDUCTED.       §  485 

ages  for  such  injuries,  unless  the  corporation  failed  to  comply 
with  the  provisions  of  the  preceding  section. 

Rules  and  regulations  by  carriers  of  passengers.  Generally:  See  ante, 
§  465,  subd.  11;  post,  §  21SG. 

Legislation  §  484.  Enacted  March  21,  1872;  based  on  Stats.  1861, 
y.  625,  §  IS. 

§  485.  Maintenance  of  fences  along-  railroads ;  damages  for 
killing'  stock.  Railroad  corporations  must  make  and  maintain 
a  good  and  sufficient  fence  on  both  sides  of  their  track  and 
property.  In  case  they  do  not  make  and  maintain  such  fence, 
if  their  engine  or  cars  shall  kill  or  maim  any  cattle  or  other 
domestic  animals  upon  their  line  of  road,  except  where  the 
same  runs  through  or  upon  public  land  they  must  pay  to 
the  owner  of  such  cattle  or  other  domestic  animals  a  fair 
market  price  for  the  same,  unless  it  occurred  through  the 
neglect  or  fault  of  the  owner  of  the  animal  so  killed  or 
maimed.  Railroad  corporations  paying  to  the  owner  of  the 
land  through  or  along  which  their  road  is  located  an  agreed 
price  for  making  and  maintaining  such  fence,  or  paying  the 
cost  of  such  fence  with  the  aAvard  of  damages  allowed  for  the 
right  of  way  for  such  railroad,  are  relieved  and  exonerated 
from  all  claims  for  damages  arising  out  of  the  killing  or 
maiming  any  animals  of  persons  who  thus  fail  to  construct 
and  maintain  such  fence ;  and  the  owners  of  such  animals  are 
responsible  for  any  damages  or  loss  which  may  accrue  to  such 
corporation  from  such  animals  being  upon  their  railroad 
track,  resulting  from  the  nonconstruction  of  such  fence,  unless 
it  is  shown  that  such  loss  or  damage  occurred  through  the 
negligence  or  fault  of  the  corporation,  its  officers,  agents 
or  employees.  [Amendment  approved  1915 ;  Stats.  1915, 
p.  1281.] 

Cattle-guards  and  fences,  cost  of  and  election  to  build:  See  Code 
Civ.  Proc,  §§  1248,  1251. 

Legislation  §  485.  1.  Enacted  March  21,  1872;  based  on  Stats.  1861, 
p.  623,  §  40.  It  read  as  enacted  in  1872:  "fCailroad  corporations  must 
make  and  maintain  a  good  and  sufficient  fence  on  either  or  both  sides 
of  their  track  and  property.  In  case  they  do  not  make  and  maintain 
such  fence,  if  their  engine  or  cars  shall  kill  or  maim  any  cattle  or 
other  domestic  animals  upon  their  line  of  road  which  passes  through 
or  along  the  property  of  the  owner  thereof,  they  must  pay  to  the  owner 
of  such  cattle  or  other  domestic  animals  a  fair  market  price  for  the 
same,  unless  it  occurred  through  the  neglect  or  fault  of  the  owner 
of  the  animal  so  killed  or  maimed.  Railroad  corporations  paying  to 
the  owner  of  the  land  through  or  along  which  their  road  is  located  an 
agreed  price  for  maldng  and  maintaining  such  fence,  or  paying  the 
cost  of  such  fence  with  the  award  of  damages  allowed  for  the  right  of 
way  for  such  railroad,  are  relieved  and  exonerated  from  all  claims  for 
damages  arising  out  of  the  killing  or  maiming  any  animals  of  persons 
who  thus  fail  to  .construct  and  maintain  such  fence;  and  the  owners 


§  487  CIVIL  CODE.  232 

of  such  animals  are  responsible  for  any  damages  or  loss  ■which  may 
accrue  to  such  corporation  from  such  animals  being  upon  their  rail- 
road track,  resulting  from  the  non-construction  of  such  fence,  unless 
it  is  shown  that  such  loss  or  damage  occurred  through  the  negligence 
or  fault  of  the  corporation,  its  officers,  agents,  or  employees." 
2.  Amended  by  Stats.  1915,  p.  1281. 

§485a.     Rig-ht   to    private    crossings    over  railroads.     The 

owner  or  owners  of  any  lands  along  or  through  which  any 
railroad  is  constructed  or  maintained,  shall  have  the  right  to 
such  farm  or  private  crossings  over  such  railroad  and  rail- 
road right  of  way  as  may  be  reasonably  necessary  or  con- 
venient for  ingress  to  or  egress  from  such  lands,  or  in  order 
to  connect  such  lands  with  other  adjacent  lands  of  such  owner 
or  owners ;  and  the  owner  or  operator  of  such  railroad  shall 
construct  and  at  all  times  maintain  such  farm  or  private 
crossing  in  a  good,  safe  and  passable  condition ;  provided,  that 
the  railroad  commission  shall  have  the  authority  to  determine 
the  necessity  for  such  crossing  and  the  place,  manner  and  con- 
ditions under  which  said  crossing  shall  be  constructed  and 
maintained,  and  shall  fix  and  assess  the  cost  and  expense 
thereof. 

Legislation  §  185a.     Added  by  Stats.  1915,  p.  920. 

§  486.  Regulations  of  trains.  Penalty.  A  bell,  of  at  least 
twenty  pounds  weight,  must  be  placed  on  each  locomotive-en- 
gine, and  be  rung  at  a  distance  of  at  least  eighty  rods  from  the 
place  where  the  railroad  crosses  any  street,  road,  or  highway, 
and  be  kept  ringing  until  it  has  crossed  such  street,  road,  or 
highway ;  or  a  steam- whistle  must  be  attached,  and  be  sounded, 
except  in  cities,  at  the  like  distance,  and  be  kept  sounding  at 
intervals  until  it  has  crossed  the  same,  under  a  penalty  of  one 
hundred  dollars  for  every  neglect,  to  be  paid  by  the  corpora- 
tion operating  the  railroad,  which  may  be  recovered  in  an  ac- 
tion prosecuted  by  the  district  attorney  of  the  proper,  county, 
for  the  use  of  the  state.  The  corporation  is  also  liable  for  all 
damages  sustained  by  any  person,  and  caused  by  its  locomo- 
tives, train,  or  cars,  when  the  provisions  of  this  section  are 
not  complied  with. 

Omitting  to  ring  bell,  a  misdemeanor:  Pen.  Code,  §  390. 

Legislation  §  186.     Enacted   March   21,   1872;    based   on   Stats.    1861, 

p.  623,  §  41. 

§  487.  Passenger  refusing  to  pay  fare.  If  any  passenger 
refuses  to  pay  his  faro,  or  to  exhibit  or  surrender  his  ticket, 
when  reasonably  requested  so  to  do,  the  conductor  and  em- 
ployees of  the  corporation  may  put  him  and  his  baggage  out 


233      RAILROxVD  CORPORATIONS.     BUSINESS,  HOW  CONDUCTED.       §  489 

of  the  ears,  using  no  unnecessary  force,  at  any  usual  stopping- 
place,  or  near  any  dwelling-house,  on  stopping  the  train. 

Refusing  to  pay  fare:  See,  generally,  post,  §§  2187  et  seq. 
Legislation  §  487.     Enacted   March   21,   1872;    based  on   Stats.    1861, 
p.  626,  §  49. 

§  488.  Officers  to  wear  badge.  Every  conductor,  baggage- 
master,  engineer,  brakeman,  or  other  employee  of  any  railroad 
corporation,  employed  on  a  passenger  train  or  at  stations  for 
passengers,  must  wear  upon  his  hat  or  cap,  or  in  some  con- 
spicuous place  on  the  breast  of  his  coat,  a  badge,  indicating 
his  office  or  station,  and  the  initial  letters  of  the  name  of  the 
corporation  by  which  he  is  employed.  No  collector  or  con- 
ductor, without  such  badge,  is  authorized  to  demand  or  to 
receive  from  any  passenger  any  fare,  toll,  or  ticket,  or  exercise 
any  of  the  powers  of  his  office  or  station ;  and  no  other  officer 
or  employee,  without  such  badge,  has  any  authority  to  meddle 
or  interfere  with  any  passenger  or  property. 

Legislation  §  488.     Enacted  March  21,  1872;   based  on  Stats.   1861, 

p.  626,  §  50. 

§  489.  Rates  of  charg'es.  Whenever  the  board  of  railroad 
commissioners,  in  the  discharge  of  its  duties,  establishes  or 
adopts  rates  of  charges  for  the  transportation  of  passengers 
and  freight,  pursuant  to  the  provisions  of  the  constitution,  said 
board  must  serve  a  printed  schedule  of  such  rates,  and  of  any 
changes  that  may  be  made  in  such  rates,  upon  the  person,  co- 
partnership, company,  or  corporation  affected  thereby ;  and 
upon  such  service  it  is  the  duty  of  such  person,  copartnership, 
company,  or  corporation  to  immediately  cause  copies  of  the 
same  to  be  posted  in  all  its  offices,  station-houses,  warehouses, 
and  landing-offices  affected  by  such  rates,  or  change  of  rates, 
in  such  manner  as  to  be  accessible  to  public  inspection  during 
usual  business  hours.  Said  board  must  also  make  such  further 
publication  thereof  as  it  deems  proper  and  necessary  for  the 
public  good.  If  the  party  to  be  served  is  a  corporation,  such 
service  may  be  made  upon  the  president,  vice-president,  secre- 
tary, or  managing  agent  thereof,  and  if  a  copartnership,  upon 
any  partner  thereof.  The  rates  of  charges  established  or 
adopted  by  said  board,  pursuant  to  the  constitution  and  the 
laws  of  this  state,  must  go  into  force  and  effect  on  the  twen- 
tieth day  after  service  of  such  schedule  of  rates,  or  changes  in 
rates,  upon  the  person,  copartnership,  company,  or  corpora- 
tion affected  thereby.  [Amendment  approved  1905 ;  Stats. 
1905,  p.  575.] 

Asking  or  receiving  illegal  fare,  a  misdemeanor:  Pen.  Code,  §  o2o. 

Rates  "of  charges  on  street-railroads:  Post,  §  501. 


§  490  CIVIL  CODE.  234 

Power  of  railroad  corporations  to  charge  tolls  or  compensation:  Ante, 
§  465,  subd.  8. 

Legislation  §  489.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  626,  §  51),  and  then  read:  "All  railroad  corporations  must  fix  and 
publish  their  rates  of  charges  for  freightage  and  fares  from  one  depot 
to  another,  on  their  A'arious  lines  of  road  in  this  state,  graduated  as 
follows:  1.  One  rate  of  charges  per  mile  for  a  distance  of  one  hundred 
miles  or  over;  2.  One  rate  for  a  distance  of  seventy-five  and  less  than 
one  hundred  miles,  charging  not  exceeding  ten  per  cent  per  mile  more 
than  the  first  rate;  3.  One  rate  for  a  distance  of  fifty  and  less  than 
seventy-five  miles,  charging  not  exceeding  fifteen  per  cent  per  mile 
more  than  the  first  rate;  4.  One  rate  for  a  distance  of  twenty-five  and 
less  than  fifty  miles,  charging  not  exceeding  twenty  per  cent  per  mile 
more  than  the  first  rate;  5.  One  rate  for  a  distance  not  exceeding 
twenty-five  miles,  charging  not  exceeding  twenty-five  per  cent  per  mile 
more  than  the  first  rate.  But  in  no  ease,  nor  in  an}'  class  of  charges 
hereinbefore  named,  shall  any  railroad  corporation  charge  or  receive 
more  than  ten  cents  per  mile  for  each  passenger,  nor  fifteen  cents  per 
mile  for  each  ton  of  freight  transported  on  its  road.  For  every  trans- 
gression of  these  limitations  the  corporation  is  liable,  to  the  party 
suffering  thereby,  treble  the  entire  amount  of  fare  or  freightage  so 
charged  to  such  party.  In  no  ease  is  the  corporation  required  to  re- 
ceive less  than  twenty-five  cents  for  an}'  one  lot  of  freight  for  any 
distance."  The  code  commissioners  say:  "The  provision  fixing  grades 
of  charges  is  in  accordance  with  the  statutes  of  the  states  of  Maine, 
Missouri,  Kansas  and  others,  and  frequent  suggestions  in  this  state. 
In  Kansas  and  Missouri  six  cents  per  mile  is  the  maximum  charge  for 
passenger  fare,  and  freightage  is  graded  something  like  the  provisions 
of  this  section.  We  have  not  disturbed  the  existing  law  fixing  a  maxi- 
mum of  freightage  and  fares,  but.  to  produce  a  systematic  uniformity, 
require  grades  to  be  fixed  based  upon  distance  alone.  It  would  be 
clearly  a  wrong  to  allow  a  charge  for  one  hundred  miles  to  be  doubled 
for  an  intermediate  distance  of  fifty  miles." 

2.  Amendment  by  Stats.  1901,  p.  370;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  575;  the  code  commissioner  saying, 
"§  11  of  the  statute  of  1880,  p.  47,  defining  the  powers  of  the  board 
of  railroad  commissioners,  is  substituted  in  place  of  the  present  §  489. 
The  latter  had  been  inoperative  since  the  adoption  of  the  constitution 
of  1879." 

§  490.  Passenger-tickets,  how  issued,  and  to  be  good  for 
six  months.  Every  railroad  corporation  must  provide,  and  on 
being  tendered  the  fare  therefor  fixed,  as  provided  in  the  pre- 
ceding section,  furnish  to  every  person  desiring  a  passage 
on  their  passenger-cars  a  ticket,  which  entitles  the  purchaser 
to  a  ride,  and  to  the  accommodations  provided  on  their  cars, 
from  the  depot  or  station  Avhere  the  same  is  purchased  to  any 
other  depot  or  station  on  the  line  of  their  road.  Every  such 
ticket  entitles  the  holder  thereof  to  ride  on  their  passenger- 
cars  to  the  station  or  depot  of  destination,  or  any  intermediate 
station,  and  from  any  intermediate  station  to  the  depot  of 
destination  designated  in  the  ticket,  at  any  time  within  six 
months  thereafter.     Any  corporation  failing  so  to  provide  and 


235      RAILROAD  CORPORATIONS.     BUSINESS,  HOW  CONDUCTED.       §  493 

furnish  tickets,  or  refusing  the  passage  which  the  same  calls 
for  when  sold,  must  pay  to  the  person  so  refused  all  actual 
damages  caused  thereby,  with  reasonable  counsel  fees  ex- 
pended in  recovering  same.  [Amendment  approved  1901 ; 
Stats.  1901,  p.  600.] 

Legislation  §  490.  1.  Enacted  March  21,  1872.  The  code  commis- 
sioners say:  "The  change  here  proposed  makes  a  ticket  for  which 
value  has  been  paid  by  a  holder  available  at  any  time  within  six 
months.  No  good  reason  can  be  assigned  why  passengers  should  not 
be  protected  as  well  as  others  against  inevitable  accidents.  A  slight 
inconvenience  to  a  corporation  ought  not  to  deprive  one  of  small 
means  of  all  consideration  or  convenience." 

2.  Amended  by  Stats.  1901,  p.  600,  at  end  of  section,  changing  "the 
sum  of  two  hundred  dollars"  to  "all  actual  damages  caused  thereby, 
with  reasonable  counsel  fees  expended  in  recovering  same." 

§  491.  Character  of  rails  to  be  used.  All  railroads,  other 
than  street-railroads  and  those  used  exclusively  for  carrying 
freight  or  for  mining  purposes,  built  by  corporations  organ- 
ized under  this  chapter,  must  be  constructed  of  the  best  qual- 
ity of  iron  or  steel  rail,  known  as  T  or  H  rail,  or  other  pat- 
tern of  equal  utilitv.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  2i2.] 

Legislation  §  491.  1.  Enacted  March  21,  1872;  based  on  Stats.  1861, 
p.  626,  §  57;  Stats.  1862,  p.  498,  §  1. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  212,  at  end  of  section,  (1) 
adding  "or  steel"  affer  "iron,"  and  (2)  omitting  the  word  "rail"  after 
"T"   (original  code,  "T  rail  or  H  rail"). 

§  492.  Elevated  or  underground  railways.  The  legislative 
or  other  body  to  whom  is  intrusted  the  government  of  the 
county,  city  and  county,  city,  or  town,  under  such  regulations, 
restrictions,  and  limitations,  and  upon  such  terms  and  pay- 
ment of  license  tax  as  the  county,  city  and  county,  city,  or 
town  authority  may  provide,  may  grant  franchises  for  the 
construction  of  elevated  or  underground  railroad  tracks  over, 
across,  or  under  the  streets  and  public  highways  of  any  such 
county,  city  and  county,  city,  or  town,  for  the  term  not  ex- 
ceeding fifty  years ;  provided,  that  before  granting  such  fran- 
chise there  shall  be  presented  to  such  legislative  or  other  body 
a  petition  signed  by  the  owners  of  a  majority  of  the  landed 
property,  other  than  public  property,  on  the  line  of  said  ele- 
vated portion  applied  for. 

Elevated  roads:  See  post,  §  498. 

Legislation  §  492.     1.  Added  by  Stats.  1895,  p.  241. 

2.  Reiteal  by  Stats.  1901,  p.  370;  unconstitutional.  See  note,  §  4, 
ante. 

§  493.  To  apply  to  all  railroad  companies.  The  provisions 
of  section  four  hundred  and  ninety-two  shall  apply  to  any  rail- 


1 494  CIVIL  CODE.  236 

way     corporation     heretofore     or     hereafter     incorporated. 

[Amendment  approved  1905;  Stats.  1905,  p.  576.] 

Legislation  §  493.  1.  Added  by  Stats.  1895,  p.  242,  and  then  read: 
"This  act  shall  apply  to  all  railroad  companies  heretofore  and  here- 
after incorporated." 

2.  Eepeal  by  Stats.  1901,  p.  370;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  576;  the  code  commissioner  saying, 
"The  change  consists  in  the  substitution  of  the  words  'the  provisions 
of  section  four  hundred  and  ninety-two'  in  place  of  'this  act,'  "  this 
probably  being  the  only  change  recommended  by  the  commissioner. 

§  494.     Sale  of  property  and  franchises  to  another  railroad. 

Any  railroad  corporation,  person  or  persons,  firm  or  corpora- 
tion, owning  any  railroad  in  this  state,  may  sell,  convey,  and 
transfer  its  property  and  franchises,  or  any  part  thereof,  to 
any  other  railroad  corporation,  whether  organized  under  the 
laws  of  this  state  or  of  any  other  state  or  territory,  or  nnder 
any  act  of  Congress;  and  any  other  such  railroad  corporation 
receiving  snch  conveyance  may  hold  and  operate  snch  railroad 
franchises  and  property  within  this  state,  bnild  and  operate 
extensions  and  branches  thereof,  and  thereunto  exercise  the 
right  of  eminent  domain,  and  do  any  other  business  in  connec- 
tion therewith,  ns  fully  and  effectually  to  all  intents  and  pur- 
poses as  if  such  corporation  were  organized  under  the  laws 
of  this  state ;  provided,  that  before  such  sale,  conveyance,  or 
transfer  shall  become  operative,  an  agreement  in  writing  must 
be  executed  by  the  parties  thereto,  containing  the  terms  and 
conditions  of  the  purchase  and  sale,  and  its  execution  must  be 
authorized  by  the  board  of  directors  and  ratified  by  three 
fourths  of  the  stockholders  of  each  of  the  railroad  eomnanies 
that  are  parties  to  such  conveyance  and  transfer,  and  said 
agreement  or  conveyance  shall  be  recorded  in  each  county 
through  which  said  road  or  roads  pass  in  this  state;  and  pro- 
vided further,  that  no  sale,  conveyance,  or  transfer  under  this 
act  shall  relieve  the  franchise  or  property  sold,  conveyed,  or 
transferred,  from  the  liability  of  the  grantor  contracted  or 
incurred  in  the  operation,  use,  or  enjoyment  of  such  franchise 
or  any  of  its  privileges;  provided,  that  this  section  shall  not 
authorize  any  corporation  to  purchase  any  railroad  property 
operated  in  competition  with  it;  and  provided  further,  that 
any  or  all  established  rates  for  fares  and  tolls  for  carrying 
passengers  or  freight  between  any  points  upon  any  railroad 
purchased  under  the  provisions  of  this  act,  shall  not  be  in- 
creased without  the  consent  of  the  governmental  authority  in 
which  is  vested  by  law  the  power  to  regulate  fares  and 
freights;  and  nrovided  further,  that  whenever  a  railroad  cor- 
poration, which  has  purchased  any  line  of  road  under  this  act. 


23'?      RAILROAD  CORPORATIONS.     BUSINESS,  HOW  CONDUCTED.       §  494 

shall  for  the  purposes  of  competing  with  any  other  common 
carrier  lower  its  rates  for  transportation    of    passengers    or 
freight  from  one  point  to  another  upon  such  line  purchased, 
such  reduced  rates  shall  not  be  again  raised  or  increased  from 
such  standard  without  the  consent  of  the  governmental  author- 
ity in  which  shall  be  vested  the  power  to  regulate  fares  and 
freights;  and  provided   further,  that    for  every   violation    of 
the  provisions  of  this  act  on  the  part  of  directors  or  governing 
officers  of  said  corporation,  the  state  shall  be  entitled  to  re- 
coA^er  from  such  offending  railroad  company  the  sum  of  ten 
thousand  dollars.     It  is  hereby  declared  to  be  the  duty  of  the 
attorney-general  of  the  state,  in  the  event  of  any  such  viola- 
tion, to  demand  and  collect  from  such  company  the  said  pen- 
alty ;  and  he  is  hereby  authorized  and  empowered  to  prosecute 
all  the  necessary  actions  in  the  name  of  the  people  of  the  state 
of  California  against  such  company  in  the  courts  of  the  state. 
All  money  so  collected  shall  be  paid  into  the  general  fund  of 
this  state.     [Amendment  approved  1903 ;  Stats.  1903,  p.  50.] 
Purchase  of  franchise  of  other  roads:  See  ante,  §  465,  subd.  12. 
Legislation  §  494.     1.  Added  by  Stats.  1899,  p.  178,  approved  March 
22,  1899,  and  read:  "Any  railroad  corporation  owning  any  railroad  in 
this  state  may  sell,   convey  and  transfer  its  property  and  franchises 
or  any  part  thereof,  to  any  other  railroad  corporation,  whether  organ- 
ized under  the  laws  of  this  state  or  of  any  other  state  or  territory, 
or  under  any  act  of  Congress;  and  any  other  such  railroad  corporation 
receiving  such  conveyance  may  hold  and  operate  such  railroad  fran- 
chises and  property  within  this  state,  build  and  operate  extensions  and 
branches  thereof,  and  thereunto  exercise  the  right  of  eminent  domain, 
and  do  any  other  business  in  connection  therewith,  as  fully  and  effectu- 
ally to  all  intents  and  purposes  as  if  such  corporation  were  organized 
under  the  laws  of  this  state;  provided,  that  such  sale,  conveyance  and 
transfer  shall  be  made  within  three  years  from  the  date  this  act  shall 
take   effect;  and  provided  further,   that  before  such  sale,  conveyance 
or  transfer  shall  become  operative,  an  agreement  in  writing  must  be 
executed  by  the  parties  thereto,  containing  the  terms  and  conditions 
of  the  purchase  and  sale,  and  its  execution  must  be  authorized  by  the 
board  of  directors  and  ratified  by  three  fourths  of  the  stockholders  of 
each  of  the  railroad  companies  that  are  parties  to  such  conveyance  and 
transfer,  and  said  agreement  or  conveyance  shall  be  recorded  in  each 
county  through  which  said  road  or  roads  pass  in  this  state;   and  pro- 
vided   further,    that    no    sale,    conveyance    or    transfer   under    this   act 
shall  relieve   the  franchise  or  property  sold,   conveyed  or  transferred 
from  the  liability  of  the  grantor  contracted  or  incurred  in  the  opera- 
tion,  use   or   enjoyment   of   such   franchise    or   any   of   its   privileges; 
provided,    that    this    section    shall    not    authorize    any    corporation    to 
purchase  any  railroad  property  operated  in  competition  with  it;  and 
provided,   however,  corporations  operating  any   railroad  or  part  of  a 
railroad  under  lease  shall  be  entitled  to  purchase  such  leased  property 
(whether  competitive  or  otherwise)    under  the  provisions  and  subject 
to   the   conditions   of  this  act;   and  provided  further,  that  any  or  all 
established  rates  for  fares  and  tolls  for  carrying  passengers  or  freight 
between  any  points  upon  any  railroad  purchased  under  the  provisions 


§494 


CIVIL   CODE.  238 


of  this  act,  shall  not  be  increased  without  the  consent  of  the  govern- 
mental authority  in  which  is  vested  by  law  the  power  to  regulate  fares 
and  freights;  and  provided  further,  that  whenever  a  railroad  corpora- 
tion, which  has  purchased  any  line  of  road  under  this  act,  shall  for 
the  purpose  of  competing  with  any  other  common  carrier  lower  its 
rates  for  transportation  of  passengers  or  freight  from  one  point  to 
another  upon  such  line  purchased,  such  reduced  rates  shall  not  l3e  again 
raised  or  increased  from  such  standard  without  the  consent  of  the  gov- 
ernmental authority  in  which  shall  be  vested  the  power  to  regulate 
fares  and  freights;  and  provided  further,  that  for  every  violation  of 
the  provisions  of  this  act  on  the  part  of  directors,  or  other  governing 
oiBcers  of  said  corporation,  the  state  shall  be  entitled  to  recover  from 
such  offending  railroad  company  the  sum  of  ten  thousand  dollars.  It 
is  hereby  declared  to  be  the  duty  of  the  attorney-general  of  the  state, 
in  the  event  of  any  such  violation,  to  demand  and  collect  from  such 
company  the  said  penalty;  and  he  is  hereby  authorized  and  empowered 
to  prosecute  all  the  necessary  actions  in  the  name  of  the  people  of 
the  state  of  California  against  such  companj^  in  the  courts  of  the  state. 
All  money  so  collected  shall  be  paid  into  the  general  fund  of  this 
state." 

2.  Amended  by  Stats.  1903,  p.  50,  approved  February  27,  1903,  but 
the  title  of  the  act  designates  the  amendment  as  the  addition  of  a 
new  section,  reading  thus,  "An  Act  amending  the  Civil  Code  of  the 
state  of  California,  by  adding  thereto  a  new  section,  numbered  494, 
authorizing  the  sale  by  any  railroad  company,  person  or  persons,  firm 
or  corporation,  owning  any  railroad  in  this  state,  of  its  property  and 
franchises,  or  any  part  thereof,  to  any  railroad  company,  whether  or- 
ganized under  the  laws  of  this  state  or  of  any  other  state  or  territory, 
or  under  any  act  of  Congress,  and  describing  the  conditions  and  pen- 
alties under  which  such  property  and  franchises  so  sold  may  thereafter 
be  operated  and  used." 

3.  By  Stats.  1905,  p.  576,  §  494  as  enacted  in  1899  was  repealed,  the 
repealing  act  reading,  "Section  four  hundred  and  ninety-four  of  the 
Civil  Code,  as  approved  March  22.  1S99,  is  hereby  repealed;  provided, 
that  nothing  in  this  act  contained  shall  be  deemed  to  repeal  any  of  the 
provisions  of  section  494  of  said  code  as  approved  February  27,  1903"; 
the  code  commissioner  saying,  "In  1899  a  section  relating  to  the  sale 
of  railroads  was  added  to  the  code,  and  numbered  494.  In  1903  a  new 
section  was  added,  also  numbered  494,  and  clearly  intended  to  super- 
sede the  old  §  494.  Accordingly,  it  is  thought  advisable  to  repeal  the 
earlier  section." 


239  STREET- RAILROAD  CORPORATIONS.  S  497 


TITLE  IV. 
Street-railroad  Corporations. 

§  497.     Authority  to  lay  street-railroad  track,  how  obtained.     Limitations 

and  restrictions. 
§  498.     Eestrietions  and  limitations.     Manner  of  constructing  tracks. 
§  499.     City  trustees  may  permit  two  or  more  street  railway  lines  to  use 

the  same  tracks. 
§  500.     Crossing  tracks.     Obstructions. 

§  501.     Kates  of  fare  on  street-cars.     Construction  of  cars.     Penalty. 
§  502.     Time   allowed   for    commencing   and   completing   work.     Penalty. 

Extension  of  time. 
§  503.     May  make  further  regulations  and  rules. 
§  504.     Penalty  for  overcharging. 

§  505.     To  provide  and  furnish  passenger-tickets.  .  Penalty. 
§  506.     Proof  of  agency. 
§  507.     Keserved  rights. 
§  508.     License  to  be  paid  to  city  or  town. 
§  509.     Track  for  grading  purposes. 

§  510.     Provisions  of  title  three  applicable  to  street-railroads. 
§  511.     Title  applicable  to  natural  persons  alike  with  corporations. 

§  497.  Authority  to  lay  street-railroad  track,  how  obtained. 
Limitations  and  restrictions.  Authority  to  lay  railroad  tracks 
through  the  streets  and  public  highways  of  any  incorporated 
city,  city  and  county,  or  town,  may  be  obtained  for  a  term  of 
years  not  exceeding  fifty,  from  the  trustees,  council,  or  other 
body  to  Avhom  is  intrusted  the  government  of  the  city,  city 
and  county,  or  town,  under  such  restrictions  and  limitations, 
and  upon  such  terms  and  payment  of  license  tax,  as  the  city, 
city  and  county,  or  town  authority  may  provide.  In  no  case 
must  permission  be  granted  to  propel  cars  upon  such  tracks 
otherwise  than  by  electricity,  horses,  mules,  or  by  wire  ropes 
running  under  the  streets  and  moved  by  stationary  engines, 
unless  for  special  reasons  in  this  title  hereinafter  mentioned ; 
provided,  however,  that  such  board  or  body  in  granting  the 
right,  or  at  any  time  after  the  same  is  granted,  to  use  elec- 
tricity or  any  other  of  said  modes,  shall  have  power  to  impose 
such  terms,  restrictions,  and  limitations  as  to  the  use  of  streets 
and  the  construction  and  mode  of  operating  such  electric  and 
other  roads  as  may,  by  such  board  or  body,  be  deemed  for  the 
public  safetv  or  welfare.  [Amendment  approved  1891 ;  Stats. 
1891,  p.  12.] 

Act  limiting  time  within  which  franchise  may  be  granted:  See  post, 

Appendix,  tit.  "Railroads." 
Act  validating  ordinance  granting  franchise:  See  post,  Appendix,  tit. 

"Railroads." 

Legislation  §  497.     1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 

70,    p.    481,  §  1),    and    then    read:    "Authority    to    lay    railroad    tracks 

through  the  streets  and  public  highways  of  any  incorporated  city  or 


§  498  CIVIL  CODE.  240 

town  may  be  obtained,  for  a  term  of  years  not  exceeding  fifty,  from 
the  trustees,  council,  or  other  body  to  whom  is  intrusted  the  govern- 
ment of  the  city  or  town,  under  such  restrictions  and  limitations,  and 
upon  such  terms  and  payment  of  license  tax,  as  the  city  or  town 
authority  may  provide.  In  no  case  must  permission  be  granted  to  pro- 
pel cars  upon  such  tracks  otherwise  than  by  horses  or  mules,  unless 
for  special  reasons,  as  hereinafter  provided." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  76,  in  second  sentence,  in- 
serting "or  by  wire  ropes  running  under  the  streets  and  moved  by 
stationary  steam-engines." 

3.  Amended  by  Stats.  1891,  p.  12. 

4.  Amendment  by  Stats.  1901,  p.  370;  unconstitutional.  See  note, 
§  4,  ante. 

§  498.  Restrictions  and  limitations.  Manner  of  construct- 
ing' tracks.  The  city  or  town  authorities,  in  granting  the 
right  of  way  to  street-railroad  corporations,  in  addition  to  the 
restrictions  which  they  are  authorized  to  impose,  must  require 
a  strict  compliance  with  the  following  conditions,  except  in 
the  cases  of  prismoidal  or  other  elevated  railways.  In  such 
cases,  said  railway  shall  be  required  to  be  constructed  in  such 
a  manner  as  will  present  the  least  obstruction  to  the  freedom 
of  the  streets  on  which  it  may  be  erected,  when  allowed  by  the 
granting  power : 

First.  To  construct  their  tracks  on  those  portions  of  streets 
designated  in  the  ordinance  granting  the  right,  which  must 
be  as  nearly  as  possible  in  the  middle  thereof. 

Second.  To  plank,  pave,  or  macadamize  the  entire  length  of 
the  street,  used  hy  their  track,  between  the  rails,  and  for  two 
feet  on  each  side  thereof,  and  between  the  tracks,  if  there 
be  more  than  one,  and  to  keep  the  same  constantly  in  repair, 
flush  with  the  street,  and  with  good  crossings. 

Third.     That  the  tracks  must  not  be  more  than  five  feet 
wide  within  the  rails,  and  must  have  a  space  between  them 
sufficient  to  allow  the  cars  to  pass  each  other  freely.      [Amend- 
ment approved  1876;  Code  Amdts.  1875-76,  p.  77.] 
Elevated  roads:  See  ante,  §  492. 

Legislation  §  498.  1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p.  482,  §§  1,  6;  Stats.  1863,  p.  296,  §  1),  (1)  the  introductory  para- 
graph then  ending  with  the  word  "conditions"  in  first  sentence,  the 
remainder  of  the  paragraph  being  added  in  1875-76;  (2)  subd.  1  read- 
ing as  at  present;  (3)  subd.  2  did  not  have  the  words  "and  between 
the  tracks  if  there  be  more  than  one"  (added  in  1873-74) ;  (4)  subd.  3 
then  reading,  "That  the  tracks  must  not  be  more  than  five  feet  wide 
within  the  rails,  and  a  space  between  the  track  sufficient  to  allow  the 
cars  to  pass  each  other  freely." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  212,  (1)  the  introductory 
paragraph  and  subd.  1  reading  as  the  original  code  section;  (2)  subds. 
2  and  3  reading  as  the  amendment  of  1875-76. 


.     Manner    of    Constructing 

498      Restrictions    and    L'-  *-^'.°";;    JJ^Jranting   the    right   of 

Tracks      The    city    or   town   ^utl^oritiesm    grant     g     ^^^    ^^^^^.^_ 

IZ  to  street  -"-^J^-^^  «  i-P-^  ^"^^  ^'^^"^^^  "  ^'^^'f 
tions  which  they  are  f^,^^^^",^  conditions,  except  in  the  cases  of 
compliance  with  the  ^"^'^^^.Xads  n  such  cases,  said  ra,l- 
prismoidal  or  other  ^{^''^'^^'fjZrncted  in  such  a  manner  as 
way  shall  be  ^^^^^'f^JnctZtot^e  freedom  of  the  streets 
will   present   the   least   o^s^iuc^ion  ^^^  ^^^^^.^^  ^ 


241  STREET-RAILROAD  CORPORATIONS.  §  499 

3.  Amended  by  Code  Amdts.  1875-76,  p.  77,  in  introductory  para- 
graph, adding  (a)  the  saving  clause  at  the  end  of  the  first  sentence, 
and  (b)  the  second  sentence,  this  being  the  only  change. 

4.  Amendment  by  Stats.  1901,  p.  371;  unconstitutional.  See  note, 
§  4,  ante. 

§  499.  City  trustees  may  permit  two  or  more  street  rail- 
way lines  to  use  same  tracks.  The  legislative  body  of  any 
incorporated  city,  city  and  county,  or  town,  may  permit  two  or 
more  lines  of  street  railway  to  use  the  same  portion  of  the 
same  street  or  the  same  tracks  upon  such  terms  as  may  be 
agreed  upon  by  the  companies  operating  such  railways;  but 
no  permission  shall  be  granted  to  one  company  to  use  the 
same  tracks  or  portions  of  the  same  street  for  a  distance 
of  more  than  five  consecutive  blocks,  without  the  consent  of 
the  person  or  company  occupying  said  portion  of  the  street 
and  then  only  upon  payment  of  an  equal  portion  of  the  cost 
of  construction  of  the  tracks  and  appurtenances  used  by  such 
railways  jointly;  provided,  that  any  incorporated  city,  city 
and  county,  or  town  may  own  and  operate  street  railways 
within  or  without  the  municipal  limits,  and  may  occupy  the 
same  street  or  tracks  occupied  or  used  by  any  street  railway 
within  its  limits  for  any  number  of  blocks  upon  payment  to 
the  owner  thereof  of  an  equal  portion  of  the  estimated  cost 
of  construction,  at  the  time  of  such  occupation,  of  such  tracks 
or  appurtenances  as  such  city,  city  and  county,  or  town  may 
elect  to  use  jointly  with  said  street  railway.  Where  such  por- 
tion of  such  street  shall  be  occupied  l)y  a  track  or  tracks  of  a 
different  gauge  from  the  track  or  tracks  proposed  to  be  con- 
structed thereon  by  a  line  of  street  railway  under  a  different 
management,  such  last-mentioned  line  of  street  railway  may 
nevertheless  construct  its  track  or  tracks,  subject  to  the  limita- 
tion before  prescribed,  over  the  same  ground  as  may  be  occu- 
pied by  such  prior  track  or  tracks ;  provided,  the  same  can  be  so 
constructed  as  not  to  interfere  with  the  operation  of  such  prior 
track  or  tracks  beyond  such  necessary  interference  therewith 
as  shall  be  incident  to  such  construction  with  reasonable  skill, 
care  and  diligence.  [Amendment  approved  April  24,  1911 ; 
Stats.  1911,  p.  1101.] 

Legislation  §  499.  1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p.  48.3,  §  10),  and  then  read:  "Two  corporations  may  be  permitted 
to  use  the  same  street,  each  paying  an  equal  portion  for  the  construc- 
tion of  the  track;  but  in  no  case  must  two  railroad  corporations  occupy 
and  use  the  same  street  or  track  for  a  distance  of  more  than  five 
blocks." 

2.  Amended  by   Stats.   1891,   p.    13,   to   read:    "Two   lines   of   street- 
railway,  operated  under  different  managements,  may  be  permitted  to 
use  the  same  street,  each  paying  an  equal  portion  for  the  construction 
of  the  tracks  and  appurtenances  used  by  said  railways  jointly;  but  in 
Civ.  Code — 16 


§  501  CIVIL  CODE.  242 

no  case  must  two  lines  of  street-railway,  operated  under  different 
managements,  occupy  and  use  the  same  street  or  tracks  for  a  distance 
of  more  than  five  blocks  consecutively." 

3.  Amended  by  Stats.  1907,  p.  837,  to  read:  "Two  or  more  lines  of 
street-railway,  operated  under  different  managements,  may  by  lease 
or  contract,  use  the  same  street  or  tracks  upon  such  terms  as  may 
have  been  agreed  upon  between  the  companies  operating  such  rail- 
ways; and  two  lines  of  street-railway  operated  under  different  man- 
agements may  be  permitted  to  use  the  same  street  or  tracks  for  a  dis- 
tance of  five  blocks  without  such  lease  or  contract,  upon  payment  of 
an  equal  portion  for  the  construction  of  the  tracks  and  appurtenances 
used  by  such  railways  jointly;  but  in  no  case  shall  a  company  owning 
or  operating  one  line  of  street-railway  be  permitted  to  condemn  the 
right  to  occupy  and  use  the  same  street  or  tracks  for  a  distance  of 
more  than  five  blocks  consecutively.  Where  such  portion  of  such 
street  shall  be  occupied  by  a  track  or  tracks  of  a  different  gauge  from 
the  track  or  tracks  proposed  to  be  constructed  thereon  by  a  line  of 
street-railway  under  a  different  management,  such  last-mentioned  line 
of  street-railway  may  nevertheless  construct  its  track  or  tracks,  sub- 
ject to  the  limitation  before  prescribed,  over  the  same  ground  as  may 
be  occupied  by  such  prior  track  or  tracks,  provided  the  same  can  be  so 
constructed  as  not  to  interfere  with  the  operation  of  such  prior  track 
or  tracks  beyond  such  necessary  interference  therewith  as  shall  be  in- 
cident to  such  construction  with  reasonable  skill,  care  and  diligence." 

4.  Amended  by  Stats.  1911,  p.  1101  to  read  as  above.  There  were  two 
amendments  of  this  section  in  1911,  one  adopted  Feb.  15,  Stats.  1911, 
p.  60,  and  the  other  adopted  April  24,  Stats.  1911,  p.  1101.  There  was 
no  substantial  difference  between  the  two  amendments.  The  amend- 
ment of  April  24th  being  the  latest  one  adopted  is  the  one  that  appears 
in  the  text. 

§  500.  Crossing  tracks.  Obstructions.  Any  proposed  rail- 
road track  may  be  permitted  to  cross  any  track  already  con- 
structed, the  crossing  being  made  as  provided  in  chapter  two, 
title  three,  of  this  part.  In  laying  down  the  track  and  pre- 
paring therefor,  not  more  than  one  block  must  be  obstructed 
at  any  one  time,  nor  for  a  longer  period  than  ten  working- 
days. 

Crossing  other  railroads:  See  ante,  §§  465  et  seq. 

Legislation  §  500.     Enacted  March  21,  1872. 

§  501.     Rates  of  fare  on  street-cars.     Construction  of  cars. 

Penalty.  The  rates  of  fare  on  the  cars  must  not  exceed  ten 
cents  for  one  fare  for  any  distance  under  three  miles,  and  in 
municipal  corporations  of  the  first  class  must  not  exceed  five 
cents  for  each  passenger  per  trip  of  any  distance  in  one  di- 
rection either  going  or  coming,  along  any  part  of  the  whole 
length  of  the  road  or  its  connections.  The  cars  must  be  of 
the  most  approved  construction  for  the  comfort  and  con- 
venience of  passengers,  and  provided  with  brakes  to  stop  the 
same,  when  required.  A  violation  of  the  provisions  of  this 
section  subjects  the  corporation  to  a  fine  of  one  hundred  dol- 


243  STREET-RATLROAD  CORPORATIONS.  §  502 

lars   for   each    offense.     [Amendment    approved    1903;    Stats. 
1903,  p.  172.] 

Rates  of  fare  for  railroad  corporations:  See  §  489. 

Act  limiting  and  fixing  rates  of  fares:  See  post,  Appendix,  tit.  "Rail- 
roads." 

Act  permitting  letter-carriers  to  ride  free.  See  post,  Appendix,  tit. 
"Railroads." 

Legislation  §  501.  1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p.  482,  §§  1,  6;  Stats.  1863,  p.  296,  §  1),  and  then  read:  "The  rates 
of  fare  on  the  cars  must  not  exceed  ten  cents  for  one  fare,  for  any 
distance  under  three  miles.  The  cars  must  be  of  the  most  approved 
construction  for  comfort  and  convenience  of  passengers,  and  provided 
with  brakes  to  stop  the  same,  when  required.  The  rate  of  speed  must 
not  be  greater  than  eight  miles  per  hour.  A  violation  of  the  pro- 
visions of  this  section  subjects  the  corporation  to  a  fine  of  one  hun- 
dred dollars  for  each  offense." 

2.  Amendment  by  Stats.  1901,  p.  371;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1903,  p.  172. 


§  502.  Time  allowed  for  commencing  and  completing  work. 
Penalty.  Extension  of  time.  Work  to  construct  the  railroad 
must  be  commenced  in  good  faith  within  not  more  than  one 
year  from  the  date  of  the  taking  effect  of  the  ordinance  grant- 
ing the  right  of  way,  and  said  work  must  be  completed  within  not 
more  than  three  years  after  the  taking  effect  of  such  ordinance ; 
provided,  that  the  governing  body  of  such  municipal  corpora- 
tion at  the  time  of  granting  said  right  of  way  shall  have  the 
power  to  fix  the  time  for  either  the  commencing  or  completion, 
or  both,  of  said  work ;  not,  however,  to  a  time  less  than  six 
months  for  commencing,  and  not  less  than  eighteen  months 
for  completing  the  same.  A  failure  to  comply  with  either 
of  the  foregoing  provisions  of  this  section,  or  with  either  of 
the  provisions  of  the  ordinance  granting  said  right  of  way, 
works  a  forfeiture  of  the  right  of  way,  and  also  of  the  fran- 
chise, unless  the  uncompleted  portion  is  abandoned  by  the 
person  or  corporation  to  whom  said  right  of  way  is  granted, 
with  the  consent  of  the  authorities  granting  the  right  of  way, 
such  abandonment  and  consent  to  be  in  writing.  The  authority 
granting  the  right  of  way  shall  have  the  power  to  grant  an 
extension  of  time  for  the  completion  of  said  work,  if  it  ap- 
pear that  the  work  has  been  commenced  within  the  time  fixed, 
and  prosecuted  in  good  faith ;  but  no  extension  of  time  shall 
be  granted  for  the  commencement  of  said  work,  and  shall  not 
be  granted  for  more  than  one  year  for  the  completion  of  the 
same.  All  extensions  of  time  shall  be  in  writing,  and  made 
a  matter  of  record  in  the  municipality.  Provided  further, 
that  this  act  shall  not  in  any  way  -affect  any  franchise  or  right 
of  way  granted  before  its  passage.  [Amendment  approved 
1895;  Stats.  1895,  p.  17.] 


§  50^  CIVIL  CODE.  244 

Forfeiture  for  failure  to  commence  work.     Of  railroad  corporations: 

See  ante,  §  468.     Generally:  See  ante,  §  358. 

Act  to  enable  corporations  to  complete  their  roads:  See  act  of  1877- 
78,  p.  94-4,  post.  Appendix,  tit.  "Railroads." 

Legislation  §  502.  1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p.  482,  §§  1,  6;  Stats.  1863,  p.  296,  §  1),  and  then  read:  "Work  to 
construct  the  railroad  must  be  commenced  within  one  year  from  the 
date  of  the  ordinance  granting  the  right  of  way  and  the  filing  of 
articles  of  incorporation,  and  the  same  must  be  completed  within  three 
years  thereafter.  A  failure  to  comply  with  these  provisions  works  a 
forfeiture  of  the  right  of  way  as  well  as  of  the  franchise,  unless  the 
uncompleted  portion  is  abandoned  by  the  corporation,  with  the  consent 
of  the  authorities  granting  the  right  of  way — such  abandonment  and 
consent  to  be  in  writing." 

2.  Amended  by  Stats.  1895,  p.  17. 

§  503.  May  make  further  regulations  and  rules.  Cities  and 
towns  in  or  through  which  street-railroads  run  may  make  such 
further  regulations  for  the  government  of  such  street  railroads 
as  may  be  necessary  to  a  full  enjoyment  of  the  franchise  and 
the  enforcement  of  the  conditions  provided  herein. 

Legislation  §  503.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 

p.  483, §  10. 

§  504.  Penalty  for  overcharging.  Any  corporation,  or 
agent  or  employee  thereof,  demanding  or  charging  a  greater 
sum  of  money  for  fare  on  the  cars  of  such  street  railroad 
than  that  fixed,  as  provided  in  this  title,  forfeits  to  the  person 
from  whom  such  sum  is  received,  or  who  is  thus  overcharged, 
the  sum  of  two  hundred  dollars,  to  be  recovered  in  a  civil 
action,  in  any  justice's  court  having  jurisdiction  thereof, 
against   the    corporation. 

Legislation  §  504.     1.  Enacted  March  21,  1872;  based  on  Stats.  1863, 

p.  297,  §  1. 

2.  Amendment  by   Stats.   1901,   p.   371;   unconstitutional.     See  note, 

§  4,  ante. 

§  505.     To  provide  and  furnish  passenger-tickets.     Penalty. 

Every  street-railroad  corporation  must  provide,  and  on  request 
furnish  to  all  persons  desiring  a  passage  on  its  cars,  any  re- 
quired quantity  of  passenger-tickets  or  checks,  each  to  be 
good  for  one  ride.  Any  corporation  failing  to  provide  and 
furnish  tickets  or  checks  to  any  person  desiring  to  purchase 
the  same  at  not  exceeding  the  rate  hereinbefore  described, 
shall  forfeit  to  such  person  the  sum  of  two  hundred  dollars, 
to  be  recovered  as  provided  in  the  preceding  section ;  pro- 
vided, that  the  provisions  of  this  section  shall  not  apply  to 
such  street-railroad  corporations  as  charge  but  five  cents 
fare.  [Amendment  approved  1SS3';  Code  Amdts.  1883,  p.  84.] 
Legislation  §  505.  1.  Enacted  March  21,  1872  (based  on  Stats.  1863, 
p.   297,  §  1),   and   then    read:    "Every    street-railroad   corporation    must 


245  STREET-RAILROAD  CORPORATIONS.  §  507 

provide  and,  on  request,  furnish  to  all  persons  desiring  a  passage  on 
their  cars  any  required  quantity  of  passenger  tickets  or  checks,  each 
to  be  good  for  one  ride.  Any  corporation  failing  so  to  provide  and 
furnish  tickets  or  checks  to  any  person  desiring  to  purchase  the  same, 
at  not  exceeding  the  rate  hereinbefore  fixed,  must  pay  to  such  person 
the  sum  of  two  hundred  dollars,  to  be  recovered  as  provided  in  the 
preceding  section." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  213,  (1)  and  then  had  the 
word  "prescribed"  instead  of  "described,"  as  in  the  present  section 
(as  to  which,  quaere),  (2)  but  did  not  contain  the  proviso  at  end  of 
section. 

3.  Amended  by  Code  Amdts.  1883,  p.  84. 

§  506.  Proof  of  agency.  Upon  the  trial  of  an  action  for 
any  of  the  sums  forfeited,  as  provided  in  the  two  preceding 
sections,  proof  that  the  person  demanding  or  receiving  the 
money  as  fare,  or  for  the  sale  of  the  ticket  or  check,  was  at 
the  time  of  making  the  demand  or  receiving  the  money,  en- 
gaged in  an  office  of  the  corporation,  or  vehicle  belonging  to 
the  corporation,  shall  be  prima  facie  evidence  that  such  person 
was  the  agent,  servant,  or  employee  of  the  corporation,  to 
receive  the  money,  and  give  the  ticket  or  check  mentioned. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  213.] 

Legislation  §  506.  1.  Enacted  March  21,  1872  (based  on  Stats.  1863, 
p.  297,  §§  3,  5),  and  then  read:  "Upon  the  trial  of  any  action  for  the 
forfeiture  named  in  the  two  preceding  sections,  proof  that  the  person 
demanding  or  receiving  such  sum  of  money  as  fare,  or  for  the  sale  of 
such  ticket  or  check  was,  at  the  time  of  making  such  demand  or  re- 
ceiving such  moneys,  engaged  on  or  at  any  car,  omnibus,  or  vehicle 
of  any  railroad  belonging  to  such  corporation,  is  primary  evidence 
that  such  person  so  demanding  or  receiving  such  moneys  was  the  agent, 
servant,  or  employee  of  the  corporation  so  owning,  using,  or  employing 
such  railroad." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  213. 

§  507.     Reserved  rights.     In  every  grant  to  construct  street 
railroads,   the   right   to    grade,   sewer,   pave,   macadamize,   or 
otherwise  improve,   alter,   or  repair  the   streets  or  highways, 
is  reserved  to  the   corporation,   and  cannot  be   alienated   or 
impaired;  such  work  to  be  done  so  as  to  obstruct  the  railroad 
as  little  as  possible,   and,  if  required,  the  corporation  must 
shift  its  rails  so  as  to  avoid  the  obstructions  made  thereby. 
[Amendment  approved  1874;  Code  Amdts.  1873^74,  p.  214.] 
Legislation  §  507.     1.  Enacted  March  21,  1872  (based  on  Stats.  1869- 
70,  p  483,  §9),  and  then  read:  "Every  city,  town,  or  city  and  county, 
granting  the  right  to  construct  street-railroads  within  its  limits,  must 
reserve  the  right  to  grade,  sewer,  pave,  macadamize  or  otherwise  im- 
prove, alter,  or  repair  the  streets  or  highways  permitted  to  be   used 
by  the  corporation,  the  work  to  be  so  done  by  the  city  or  town  as  to 
obstruct  the  railroad  as  little  as  possible,  and  when  such  works  make 
the  same  necessary,  the  corporation  must  shift  its  rails  so  as  to  avoid 
the  obstructions  made  thereby." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  214. 


§  510  CIVIL  CODE.  246 

3.  Amendment  by  Stats.  1901,  p.  372;  unconstitutional.  See  note, 
§  4,  ante. 

§  508.  License  to  be  paid  to  city  or  town.  Each  street- 
railroad  corporation  mnst  pay  to  the  authorities  of  the  city, 
town,  county,  or  city  and  county,  as  a  license  upon  each  car, 
such  sum  as  the  authorities  may  fix,  not  exceeding  fifty  dol- 
lars per  annum  in  the  city  of  San  Francisco,  nor  more  than 
twenty-five  dollars  per  annum  in  other  cities  or  towns.  Where 
any  street-railroad  connects  or  runs  through  two  or  more 
cities  or  towns,  a  proportionate  or  equal  share  of  such  license 
tax  must  be  paid  to  each  of  the  cities  or  towns;  and  no  such 
license  tax  is  due  the  county  authorities  where  the  same  is 
paid  to  any  city  or  town  authority. 

Licenses:  See  Pol.  Code,  §§  3356  et  seq. 

Legislation  §  508.  Enacted  Marcli  21,  1872;  base<l  on  Stats.  1869-70, 
p.  483,  §  10. 

§  509.  Track  for  grading  purposes.  The  right  to  lay  down 
a  track  for  grading  purposes,  and  maintain  the  same  for  a 
period  not  to  exceed  three  years,  may  be  granted  by  the  cor- 
porate authorities  of  any  city  or  town,  or  city  and  county,  or 
supervisors  of  any  city  or  county,  but  no  such  track  must  re- 
main more  than  three  years  upon  any  one  street;  and  it  must 
be  laid  level  with  the  street,  and  must  be  operated  under  such 
restrictions  as  not  to  interfere  with  the  use  of  the  street  by 
the  public.  The  corporate  authorities  of  any  city  or  town, 
or  city  and  Q,ounty,  may  grant  the  right  to  use  steam  or  any 
other  motive  power  in  propelling  the  cars  used  on  such  grad- 
ing-track,  when  public  convenience  or  utility  demands  it,  but 
the  reasons  therefor  must  be  set  forth  in  the  ordinance,  and 
the  right  to  rescind  the  ordinance  at  any  time  reserved. 

Legislation  §  509.     Enacted  Marcli  21,  1872;  based  on  Stats.  1869-70, 

p.  483,  §  11. 

§  510.     Provisions  of  title  three  applicable  to  street-railroads. 

Street-railroads  are  governed  by  the  provisions  of  title  three 
of  this  part,  so  far  as  they  are  applicable,  unless  such  railroads 
are  therein  specially  excepted.      [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  214.] 
Title  III:  See  ante,  §§  454  et  seq. 

Legislation  §  510.  1.  Enacted  Marcli  21,  1872,  and  then  read:  "AH 
the  provisions  of  title  III  of  this  part  are  applicable  to  street-rail- 
roads, unless  where  street-railroads  are  therein  specially  excepted,  or 
the  provisions  are  palpably  inapplicable."  The  code  commissioners 
say:  "The  reference  is  to  the  title  on  railroads,  vpith  those  sections 
excepted  which  obviously  cannot  be  applicable." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  214. 


247  WAGON-ROAD    CORPORATIONS.  '  §  513 

§  511.     Title  applicable  to  natural  persons  alike  with  cor- 
porations.    When  a  street-railroad  is  constructed,  owned,  or 
operated  by  any  natural  person,  this  title  is  applicable  to  such 
person  in  like  manner  as  it  is  applicable  to  corporations. 
Legislation  §  511.     Enacted  Marcli  21,  1872. 


TITLE  Y. 
Wagon-road  Corporations. 

§  512.  Three  commissioners  to  act  with  surveyor. 

§.513.  Survey  and  map  to  be  filed  and  approved  by  supervisors. 

§  514.  Bridges  or  ferries  on  line  of  road.     Limit  of  tolls.     Penalty  for 

taking  unlawful  tolls. 

§  515.  No  tolls  to  be  charged  on  highways  or  public  roads. 

§  516.  Eates  of  toll  to  be  posted. 

§  517.  Toll-gatherer  may  detain  persons  until  they  pay  toll. 

§  518.  Toll-gatherer  not  to  detain  any  person  unnecessarily. 

§  519.  Persons  avoiding  tolls  to  pay  five  dollars. 

§  520.  Penalties  for  trespasses  on  property  of  corporation. 

§  521.  Eevenue,  how  appropriated.     Tolls  to  be  reduced,  etc. 

§  522.  Property  may  be  mortgaged  or  hj'pothecated. 

§  523.  This  title  applies  to  natural  persons  as  well  as  corporations. 

§  524.  Franchises  for  construction  of  roads  for  horseless  vehicles. 

§  512.  Three  commissioners  to  act  with  surveyor.  Where 
a  corporation  is  formed  for  the  construction  and  maintenance 
of  a  wason-road,  the  road  must  be  laid  out  as  follows :  Three 
commissioners  must  act  in_  conjunction  with  the  surveyor  of 
the  corporation,  two  to  be  appointed  by  the  board  of  super- 
visors of  the  county  through  which  the  road  is  to  run.  and  one 
by  the  corporation,  who  must  lay  out  the  proposed  road  and 
report  their  proceedings,  together  with  the  map  of  the  road, 
to  the  supervisors,  as  provided  in  the  succeeding  section. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  214.] 
Wagon-road  corporation:  See  ante,  §§  291-294. 

Legislation  §  512.  1.  Enacted  Marcli  21,  1872  (based  on  Stats.  1853, 
p.  114,  §  2),  (1)  the  section  then  beginning  with  the  words  "Three  com- 
missioners"; (2)  at  end  of  section,  (a)  having  the  article  "a"  instead 
of  "the"  before  "map,"  but  (b)  not  having  the  words  "who  appointed 
them"  after  "supervisors." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  214. 

§  513.  Survey  and  map  to  be  filed  and  approved  by  super- 
visors. When  the  route  is  surveyed  a  map  thereof  must  be 
submitted  to  and  filed  with  the  board  of  supervisors  of  each 
county  through  or  into  which  the  road  runs,  giving  its  general 
course,  and  the  principal  points  to  or  by  which  it  runs,  and  its 
width,  which  must  in  no  case  exceed  one  hundred  feet,  and 
the    supervisors   must    either   approve    or   reject   the   survey. 


§  514  CIVIL  CODE.  248 

If  approved,  it  must  be  entered  of  record  on  the  journal  of  the 
board,  and  such  approval  authorizes  the  use  of  all  public 
lands  and  highv^^ays  over  which  the  survey  runs ;  but  the  board 
of  supervisors  must  require  the  corporation,  at  its  own  expense, 
and  the  corporation  must  so  change  and  open  the  highways 
so  taken  and  used  as  to  make  the  same  as  good  as  before  the 
appropriation  thereof;  and  must  so  construct  all  crossings  of 
public  highways  over  and  by  its  road  and  toll-gates,  as  not 
to  hinder  or  obstruct  the  use  of  the  same.  [Amendment  ap- 
proved 1905;  Stats,  1905,  p.  577.] 

Legislation  §  513.  1.  Enacted  March.  21,  1872  (based  on  Stats.  1854, 
p.  74,  §  1),  and  then  had,  at  end  of  section,  (1)  "they  were"  after  "as 
good  as,"  and   (2)   "its"  before  "toll-gates." 

2.  Amendment  by  Stats.  1901,  p.  372;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  577;  the  code  commissioner  saying  of 
the  change,  that  it  "does  not  change  the  meaning  of  the  section." 

§  514.  Bridg-es  or  ferries  on  line  of  road.  Limit  of  tolls. 
Penalty  for  taking  unlaw^ful  tolls.  All  wagon-road  corpora- 
tions may  bridge  or  keep  ferries  on  streams  on  the  line  of 
their  road,  and  must  do  all  things  necessary  to  keep  the  same 
in  repair.  They  may  take  such  tolls  only  on  their  roads, 
ferries,  or  bridges,  as  are  fixed  by  the  board  of  supervisors 
of  the  proper  county  through  which  the  road  passes,  or  in 
which  the  ferry  or  bridge  is  situate.  But  in  no  case  must 
the  tolls  be  more  than  sufficient  to  pay  fifteen  per  cent,  nor 
less  than  ten  per  cent  per  annum,  "on  the  cost  of  construction, 
after  paying  for  repairs  and  other  expenses  for  attending  to 
the  roads,  bridges,  or  ferries.  If  tolls,  other  than  as  herein 
provided,  are  charged  or  demanded,  the  corporation  forfeits 
its  franchise,  and  must  pay  to  the  party  so  charged  one  hun- 
dred dollars  as  liquidated  damages.  [Amendment  approved 
1905;  Stats.  1905,  p.  577.] 

Sale  of  franchise  under  execution:  See  ante,  §  388. 
Toll-roads;  Pol.  Code.  §§  2779  et  seq. 
Penalty  for  taking  illegal  tolls:  See  post,  §  518. 

Legislation  §  514.  1.  Enacted  March  21,  1872  (based  on  Stats.  1S57, 
p.  2S0,  §  1),  and  then  read:  "All  wagon-road  corporations  may  bridge 
or  keep  ferries  on  streams  on  the  line  of  their  road,  and  must  do  all 
things  necessary  to  keep  the  same  in  repair.  They  may  take  such 
tolls  only  on  their  road,  ferries,  or  bridges  as  are  fixed  by  the  board 
of  supervisors  of  the  proper  county  through  which  the  road  passes  or 
in  which  the  ferry  or  bridge  is  situate,  except  that  in  the  counties  of 
Trinity,  Shasta,  Klamath,  Butte,  Siskiyou,  Del  Norte,  Plumas,  Hum- 
boldt, and  Sierra  the  directors  may  fix  their  own  tolls;  but  in  no  ea'^e 
must  the  tolls  be  more  than  sufficient  to  pay  fifteen  per  cent  nor  less 
than  ten  per  cent  per  annum  on  the  cost  of  construction,  after  paying 
for  repairs  and  other  expenses  for  attending  to  the  road,  bridges,  or 
ferries.     If   tolls,  other  than   as  herein   provided,   are   charged   or   de- 


249  WAGON-ROAD    CORPORATIONS.  §  516 

manded,  the  corporation  forfeits  its  francMse,  and  must  pay,  to  the 
party  so  charged,  one  hundred  dollars  as  liquidated  damages." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  214  (approved  March  3n, 
1874),  to  read:  "All  wagon-road  corporators  may  bridge  any  stream, 
or  keep  ferries  thereon,  on  the  line  of  their  road,  and  when  bridges 
are  constructed  by  them,  or  ferries  established  by  them,  they  must  do 
all  things  necessary  to  keep  the  same  in  good  condition.  They  can 
only  take  such  tolls  on  their  road,  ferries,  or  bridges,  as  are  fixed  by 
the  board  of  supervisors  of  the  proper  county  through  which  the  road 
passes,  or  in  which  the  bridge  or  ferry  is  situated,  except  that  in 
the  counties  of  Trinity,  Shasta,  Klamath,  Butte,  Siskiyou,  Del  Norte, 
Plumas,  Humboldt,  and  Sierra,  the  directors  of  such  corporations  may 
fix  their  own  tolls;  but  in  no  case  must  the  tolls  of  any  corporation 
be  more  than  sufficient  to  pay  fifteen  per  cent  per  annum  of  the 
amount  invested  in  the  construction  of  its  road,  including  therein  the 
cost  of  its  bridges  and  ferries,  and  a  dividend  among  the  stockholders 
equal  to  twelve  per  cent  per  annum,  upon  the  amount  so  invested, 
after  paying  for  repairs  and  other  expenses  of  the  road,  bridges,  and 
ferries.  If  tolls,  other  than  as  herein  provided,  are  charged  or  de- 
manded, the  corporation  shall  forfeit  to  the  party  charged,  the  sum 
of  one  hundred  dollars,  to  be  recovered  in  a  civil  action,  and  may  also 
be  proceeded  against  for  a  forfeiture  of  its  franchise." 

3.  Amended  by  Code  Amdts.  1873-74,  p.  272  (approved  March  28, 
1874),  and  differed  from  the  original  code  section,  (1)  having,  in  sen- 
tence beginning  "They  may,"  "roads"  instead  of  "road"  after  "on 
their,"  (2)  omitting  "Trinity,  Shasta,"  and  "Siskiyou,"  and  (3)  having 
"roads"  instead  of  "road"  at  end  of  sentence. 

4.  Amendment  by  Stats.  1901,  p.  372;  unconstitutional.  See  note, 
§  4.  ante. 

5.  Amended  by  Stats.  1905,  p.  577,  the  changes  being  from  Code 
Amdts.  1873-74,  p.  272,  and  consisting  of  (1)  the  omission  of  the  words 
"except  that  in  the  counties  of  Klamath,  Butte,  Del  Norte,  Plumas, 
Humboldt,  and  Sierra,  the  directors  may  fix  their  own  tolls,"  and  be- 
ginning a  new  sentence  with  the  words  "But  in  no  case." 

§  515.     No  tolls  to  be  charged  on  highways  or  public  roads. 

When  any  highway  or  public  road  is  taken  and  used  by  any 
wagon-road  corporation  as  a  part  of  its  road,  the  corporation 
must  not  place  a  toll-gate  on  or  take  tolls  for  the  use  of  such 
highway  or  public  road  by  teamsters,  travelers,  drovers,  or 
any  one  transporting  property  over  the  same. 

Legislation  §  515,  Enacted  March  21,  1872;  based  on  Stats.  1853, 
p.  114,  §  3. 

§  516.  Rates  of  toll  to  be  posted.  The  corporation  must 
affix  and  keep  up,  at  or  over  each  gate,  or  in  some  conspicuous 
place,  so  as  to  be  conveniently  read,  a  printed  list  showing, 
first,  the  date  when  the  franchise  or  privilege  under  which 
the  right  to  collect  tolls  is  claimed,  was  granted  and  the  term 
of  duration  of  said  franchise ;  second,  the  date  upon  which 
rates  of  tolls  were  last  fixed  by  the  board  of  supervisors ;  and, 
third,  the  rates  of  tolls  levied  and  demanded.  Failure  to 
comply   with    the   provisions    of   this    act   shall   work    an   im- 


§  519  CIVIL  CODE.  250 

mediate  forfeiture  of  franchise.     [Amendment  approved  1901 ; 
Stats.  1901,  p.  5.] 

Legislation  §  516.     1.  Enacted  March  21,  1872  (based  on  Stats.  1S53, 
p.  176,  §  30),  and  then  read:  "The  corporation  must  affix  and  keep  up, 
at  or  over  each  gate,  or  in  some  conspicuous  place,  so  as  to  be  con- 
veniently read,  a  printed  list  of  the  rates  of  toll  levied  and  demanded." 
2.  Amended  by  Stats.  1901,  p.  5. 

§  517.  Toll-gatherer  may  detain  persons  until  they  pay  toll. 
Each  toll-gatherer  may  prevent  from  passing  through  his  gate 
any  person,  animal,  or  vehicle,  subject  to  toll,  until  the  toll 
authorized  to  be  collected  for  such  passing  has  been  paid. 
[Amendment  approved  1905;  Stats.  1905,  p.  577.] 

Legislation  §  517.  1.  Enacted  March  21,  1872  (based  on  Stats.  1853, 
p.  176,  §  29),  and  then  read:  "Each  toll-gatherer  may  prevent  from 
passing  through  his  gate  persons  leading  or  driving  animals  or  vehicles 
subject  to  toll,  until  they  shall  have  paid,  respectively,  the  tolls  author- 
ized to  be  collected." 

2.  Amendment  by  Stats.  1901,  p.  372;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  577;  the  code  commissioner  saying, 
"The  section  as  it  stood  before  the  change  authorized  the  toll-gatherer 
to  prevent  from  passing  through  his  gate  persons  leading  or  driving 
animals  or  vehicles  subject  to  toll.  The  form  of  the  section  has  been 
changed  to  express  what  was  doubtless  originally  intended  by  the 
legislature." 

§  518.     Toll-gatherer  not  to  detain  any  person  unnecessarily. 

Every  toll-gatherer  who,  at  any  gate,  unreasonably  hinders  or 
delays  any  traveler  or  passenger  or  any  vehicle  or  animal 
liable  to  the  payment  of  toll,  or  demands  or  receives  from  any 
person  more  than  he  is  authorized  to  collect,  for  each  offense 
forfeits  the  sum  of  twenty-five  dollars  to  the  person  aggrieved. 
[Amendment  approved  1905;  Stats.  1905,  p.  578.] 

Penalty  for  taking  illegal  tolls:  See  ante,  §  514. 

Legislation  §  518.  1.  Enacted  March  21,  1872;  based  on  Stats.  1S53, 
p.  176,  §  31. 

2.  Amendment  by  Stats.  1901,  p.  373;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  578,  adding  "or  any  vehicle  or  animal" 
after  "passenger." 

§  519.  Persons  avoiding  tolls  to  pay  five  dollars.  Every 
person  who,  to  avoid  the  payment  of  the  legal  toll,  with  his 
team,  vehicle,  or  horse,  turns  out  of  a  wagon,  turnpike,  or 
plank  road,  or  passes  any  gate  thereon  on  ground  adjacent 
thereto,  and  again  enters  upon  such  road,  for  each  offense 
forfeits  the  sum  of  five  dollars  to  the  corporation  injured. 
Legislation  §  519.     Enacted   March  21,   1872;    based   on   Stats.    1S53, 

p.  176, §  33. 


251  WAGON-ROAD    CORPORATIONS.  §  522 

§  520.    Penalties  for  trespasses  on  property  of  corporation. 

Every  person  who : 

1.  Willfully  breaks,  cuts  down,  defaces,  or  injures  any  mile- 
stone or  post  on  any  wagon,  turnpike,  or  plank  road;  or, 

2.  Willfully  breaks  or  throws  down  any  gate  on  such  road ; 
or, 

31.  Digs  up  or  injures  any  part  of  such  road  or  anything 
thereunto  belonging ;  or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon  with- 
out having  paid  the  legal  toll; 

For  each  offense  forfeits  to  the  corporation  injured  the  sum 
of  twenty-five  dollars,  in  addition  to  the  damages  resulting 
from  his  wrongful  act. 

Legislation  §  520.     Enacted   March   21,   1872;    based   on   Stats.    1853, 

p.  176,  §  32. 

§  521.     Revenue,  how  appropriated.    Tolls  to  be  reduced, 

etc.  The  entire  revenue  derived  from  the  road  shall  be  appro- 
priated: first,  to  repayment  to  the  corporation  of  the  costs 
of  its  construction,  together  with  the  incidenal  expenses  in- 
curred in  collecting  tolls  and  keeping  the  road  in  repair ;  and, 
second,  to  the  payment  of  the  dividend  among  its  stockholders, 
as  provided  in  section  five  hundred  and  fourteen.  When  the 
repayment  of  the  cost  of  construction  is  completed,  the  tolls 
must  be  so  reduced  as  to  raise  no  more  than  an  amount  suffi- 
cient to  pay  said  dividend,  and  incidental  expenses,  and  to 
keep  the  road  in  good  repair.  [Amendment  approved  1874; 
Code  Amdts.  1873^74,  p.  215.] 

Legislation  §  521.  1.  Enacted  March  21,  1872  (based  on  Stats.  1853, 
p.  114,  §  4),  and  then  read:  "The  entire  revenue  derived  from  the  road 
shall  be  appropriated;  first,  to  repayment  to  the  corporation  the  costs 
of  its  construction,  with  fifteen  per  cent  per  annum  interest  thereon, 
together  with  the  incidental  expenses  incurred  in  collecting  tolls  and 
keeping  the  road  in  repair.  When  the  repayment  is  completed,  the 
tolls  must  be  so  reduced  as  to  raise  no  more  than  an  amount  sufficient 
to  pay  incidental  expenses  and  to  keep  the  road  in  good  repair." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  215. 

§  522.     Property  may  be  mortgaged  or  hypothecated.     The 

corporation  may  mortgage  or  hypothecate  its  road  and  other 
property  for  funds  with  which  to  construct  or  repair  its  road, 
but  no  mortgage  or  hj^pothecation  is  valid  or  l)inding  unless 
at  least  twenty-five  per  cent  of  the  capital  stock  subscribed  has 
been  paid  in  and  invested  in  the  construction  of  the  road  and 
appurtenances,  and  then  only  after  an  affirmative  vote  of  two 
thirds  of  the  capital  stock  subscribed.  [Amendment  approved 
1905;  Stats.  1905,  p.  578.] 

Legislation  §  522.     1.  Enacted  March  21,  1872;  based  on  Stats.  1853, 
p.  173,  §  19. 


§  528  CIVIL  CODE.  252 

2.  Amendment  by  Stats.  1901,  p.  373;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  578,  changing  "or  repair  tbeir  road" 
to  "or  repair  its  road." 

§  523.  This  title  applies  to  natural  persons  as  well  as  cor- 
porations. When  a  Avagon,  turnpike,  or  plank  road  is  con- 
structed, owned,  or  operated  by  any  natural  person  this  title 
is  applicable  to  such  person  in  like  manner  as  it  is  applicable 
to  corporations. 

Toll-roads:  See  Pol.  Code,  §§  2779-2832. 
Legislation  §  523.     Enacted  March  21,  1872. 

§  524.  Franchises  for  construction  of  roads  for  horseless 
vehicles.  The  legislative  or  other  body  to  whom  is  intrusted 
the  government  of  any  county,  city  and  county,  city,  or  town, 
may,  under  such  regulations,  restrictions,  and  limitations  as  it 
may  provide,  subject  to  existing  laws,  grant  franchises  for 
the  construction  of  paths  and  roads,  either  on  the  surface, 
elevated,  or  depressed,  on.  over,  across,  or  under  the  streets 
and  public  highways  of  any  such  county,  city,  or  town,  for  the 
use  of  bicycles,  tricycles,  motor-cycles,  and  other  like  horseless 
vehicles,  for  a  term  not  exceeding  fifty  years.  In  incorporated 
cities  no  franchise  must  be  granted  for  the  purpose  herein 
expressed,  unless  the  consent  in  writing  of  the  owners  of  a 
majority  of  the  frontage  upon  the  road  or  street  along  which 
said  path  or  road  is  sought  to  be  constructed,  is  first  had  and 
obtained,  and  filed  with  such  legislative  or  governing  body. 
Legislation  §  524.  1.  Addition  by  Stats.  1901,  p.  373;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  57S;  the  code  commissioner  saying,  "The 
statute  of  1897,  p.  191,  authorizing  municipal  corporations  to  construct 
paths  and  roads  for  the  use  of  bicycles  and  other  horseless  vehicles, 
is  codified  in  this  section." 


TITLE  VI. 
Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corporations. 

§  528.  Corporation  to  obtain  license  from  supervisors. 

§  529.  Corporate  existence  ceases,  when. 

§  530.  Annual  report  to  supervisors. 

§  531.  This  title  to  apply  to  natural  persons  alike  with  corporations. 

§  528.     Corporation  to  obtain  license  from  supervisors.     No 

corporation  must  construct,  or  take  tolls  on,  a  bridge,  ferry, 
wharf,  chute,  or  pier  until  authority  is  granted  therefor  by 
the  supervisors,  or  other  governing  body  having  authority  in 
that  behalf.  [Amendment  approved  1905;  Stats.  1905,  p.  579.] 
Public  ferries  and  toll-bridges:  S3e  Pol.  Code,  §§  2843  et  seq. 


253  BRIDGE,  PERRY,  WHARF,  CHUTE,  ETC.,  CORPORATIONS.       §  530 

Legislation  §  528.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  120,  §  1;  Stats.  1869-70,  p.  526,  §  1),  and  then  ended  with  the  word 
"supervisors." 

2.  Amendment  by  Stats.  1901,  p.  373;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  579. 

§  529.  Corporate  existence  ceases,  when.  Every  such  cor- 
poration ceases  to  be  a  body  corporate : 

1.  If.  within  six  months  from  filinp;  its  articles  of  incorpora- 
tion, it  has  not  obtained  such  authority  from  the  board  of 
supervisors,  or  other  governing  body  having  authority  in  that 
behalf;  and  if.  within  one  year  thereafter,  it  has  not  com- 
menced the  construction  of  the  bridge,  wharf,  chute,  or  pier, 
and  actually  expended  thereon  at  least  ten  per  cent  of  the 
capital  stock  of  the  corporation ; 

2.  If,  within  three  years  from  filing  the  articles  of  incor- 
poration, the  bridge,  wharf,  chute,  or  pier  is  not  completed ; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  corpora- 
tion is  destroyed,  it  is  not  reconstructed  and  ready  for  use 
within  three  years  thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in  running 
order  within  three  months  after  authority  is  obtained  to  estab- 
lish it,  or  if  at  any  time  thereafter  it  ceases  for  a  like  term 
consecutively  to  perform  the  duties  imposed  by  law.  [Amend- 
ment approved  1905;  Stats.  1905,  p.  579.] 

Legislation  §  529.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  169),  and  read  same  as  the  amendment  of  1905,  except  that, 
in  subd.  1,  it  did  not  contain  the  words  "or  other  governing  body  hav- 
ing authority  in  that  behalf." 

2.  Amendment  by  Stats.  1901,  p.  373;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  579. 

§530.  Annual  report  to  supervisors.  The  president  and 
secretary  of  every  bridge,  ferry,  wharf,  chute,  or  pier  cor- 
poration must  annually,  under  oath,  report  to  the  board  of 
supervisors,  or  other  governing  body  having'  authority  in  that 
l5ehalf,  of  the  county  in  which  the  articles  of  incorporation 
are  filed : 

1.  The  cost  of  constructing  and  providing  all  necessary  ap- 
pendages and  appurtenances  for  its  bridge,  ferry,  wharf, 
chute,  or  pier ; 

2.  The  amount  of  all  moneys  expended  thereon,  since  its 
construction,  for  repairs  and  incidental  expenses ; 

3.  The  amount  of  its  capital  stock,  how  much  paid  in,  and 
how  much  actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls,  and  from 
all  other  sources,  stating  each  separately; 


§  531  CIVIL  CODE.  254 

5.  The  amount  of  dividends  made,  and  the  indebtedness  of 
the  corporation,  specifying  for  what  it  was  incurred; 

6.  Such  other  facts  and  particulars  respecting  the  business 
of  the  corporation,  as  the  board  of  supervisors  or  other  gov- 
erning body  having  authority  in  that  behalf  may  require. 

This  report  the  president  and  secretary  must  cause  to  be 
published  for  four  weeks  in  a  daily  newspaper  published  near- 
est the  bridge,  ferry,  wharf,  pier,  or  chute,  if  required  by 
order  of  the  board  of  supervisors  or  other  governing  body 
having  authority  in  that  behalf.  A  failure  to  make  such  re- 
port subjects  the  corporation  to  a  penalty  of  two  hundred 
dollars,  and  for  every  week  permitted  to  elapse  after  such 
failure  an  additional  penalty  of  fifty  dollars,  payable  in  each 
case  to  the  county  from  which  the  authority  of  the  corpora- 
tion was  derived.  All  such  cases  must  be  reported  by  the 
board  of  supervisors,  or  other  governing  body  having  author- 
ity in  that  behalf,  to  the  district  attorney  or  city  attorney, 
who  must  commence  an  action  therefor.  [Amendment  ap- 
proved 1905;  Stats.  1905,  p.  579.] 

Legislation  §  530.     1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 

p.  347,  §§170,  173. 

2.  Amendment  by  Stats.  1901,  p.  374;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  579,  (1)  in  introductory  paragraph, 
in  subd.  6,  and  in  final  paragraph,  adding  "or  other  governing  body 
having  authority  in  that  behalf"  after  "supervisors";  (2)  in  subds.  1 
and  3,  changing  "their"  to  "its";  (3)  in  last  sentence  of  final  para- 
graph, adding  "or  city  attorney"  after  "district  attorney." 

§  531.  This  title  to  apply  to  natural  persons  alike  with  cor- 
porations. When  a  bridge,  ferry,  wharf,  chute,  or  pier  is 
constructed,  operated,  or  owned  by  a  natural  person,  this 
title  is  applicable  to  such  person  in  like  manner  as  it  is  applica- 
ble to  corporations. 

General  provisions.     Public    ferries    and    toll-bridges:    Pol.    Code, 
§§2843-2895. 

General  provisions.    Wharves,  chutes,  and  piers:  Pol.  Code,  §§  2906- 
2921. 
Legislation  §  531 .     Enacted  March  21,  1872. 


255  TELEGRAPH   AND   TELEPHONE   CORPORATIONS.  §  537 

TITLE  VII. 
Telegraph  and  Telephone  Corporations. 

§  536.     May  use  right  of  way  along  waters,  roads,  and  highways. 

§  537.     Liability  for  damaging  telegraph  or  telephone  property. 

§  538.  Penalty  for  willfully  or  maliciously  injuring  telegraph  or  tele- 
phone property.' 

§  539.  Conditions  on  which  damage  to  subaqueous  cable  may  be  recov- 
ered. 

§  540.     May  dispose  of  certain  rights. 

§  541.     Bates  of  charges  to  be  fixed,  and  how  published.     [Eepealed.] 

Legislation  Title  VII.  1.  Enacted  March  21,  1872,  and  then  con- 
tained §§  536-541. 

2.  Repealed  and  a  new  title  substituted  by  Stats.  1905,  p.  491,  the 
title  of  the  act  reading,  "An  Act  to  repeal  Title  VII  of  Part  IV  of 
Division  First  of  the  Civil  Code  and  each  and  every  section  of  such 
.  title,  and  to  substitute  a  new  Title  VII  to  take  the  place  thereof  in 
said  code,  relating  to  telegraph  and  telephone  corporations."  See  post, 
tit.  "Legislation,"  under  the  respective  sections  of  the  title. 

§  536.  May  use  right  of  way  along  waters,  roads,  and  high- 
ways. Telegraph  or  telephone  corporations  may  construct 
lines  of  telegraph  or  telephone  lines  along  and  upon  any  pub- 
lic road  or  highway,  along  or  across  any  of  the  waters  or  lands 
within  this  state,  and  may  erect  poles,  posts,  piers,  or  abut- 
ments for  supporting  the  insulators,  wires,  and  other  neces- 
sary fixtures  of  their  lines,  in  such  manner  and  at  such  points 
as  not  to  incommode  the  public  use  of  the  road  or  highway  or 
interrupt  the  navigation  of  the  waters. 

Legislation  §  536.  1.  Enacted  March  21,  1872;  based  on  Stats.  1857, 
p.  171,  §1. 

2.  Repealed  by  Stats.  1905,  p.  492,  in  repealing  Title  VII,  and  re- 
enacted  and  amended  by  the  same  act,  adding  (1)  "or  telephone"  after 
"Telegraph"  in  first  line,  and  (2)  "or  telephone  lines"  after  "lines  of 
telegraph"  in  second  line.     See  ante,  Legislation  Title  VII. 

§  537.  Liability  for  damaging  telegraph  or  telephone  prop- 
erty. Any  person  Avho  injures  or  destroys,  through  want  of 
proper  care,  any  necessary  or  useful  fixture  of  any  telegraph 
or  telephone  corporation,  is  liable  to  the  corporation  for  all 
damages  sustained  thereby.  Any  vessel  which,  by  dragging 
its  anchor,  or  otherwise,  breaks,  injures,  or  destroys  the  sub- 
aqueous cable  of  a  telegraph  or  telephone  corporation,  subjects 
its  owner  to  the  damages  hereinbefore  specified. 

Legislation  §  537.     L  Enacted  March  21,  1872;  based  on  Stats.  1850, 

p.  347,  §  152;  Stats.  1857,  p.  171,  §  2;  Stats.  1862,  p.  290,  §  8. 

2.  Amendment  by  Stats.  1901,  p.  374;   unconstitutional.     See  note, 

§  4,  ante. 


§  540  CIVIL  CODE.  256 

^"  3.  Eepealed  by  Stats.  1905,  p.  492,  in  repealing  Title  VII,  and  re- 
enacted  and  amended  by  the  same  act,  adding  "or  telephone"  after 
"telegraph"  in  both  instances.     See  ante.  Legislation  Title  VII. 

§  538.  Penalty  for  willfully  or  maliciously  injuring-  tele- 
graph or  telephone  property.  Any  person  who  willfully  and 
maliciously  does  any  injury  to  any  telegraph  or  telephone 
property,  mentioned  in  the  preceding  section,  is  liable  to  the 
corporation  for  one  hundred  times  the  amount  of  actual  dam- 
ages sustained  thereby,  to  be  recovered  in  any  court  of  com- 
petent  jurisdiction. 

Legislation  §  538.  1.  Enacted  March  21,  1872;  based  on  Stats.  1862, 
p.  290,  §  8. 

2.  Amendment  by  Stats.  1901,  p.  374;  imconstitntional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  492,  in  repealing  Title  VII,  and  re- 
enacted  and  amended  by  the  same  act,  adding  "or  telephone"  after 
"telegraph."     See  ante,  Legislation  Title  VII. 

§  539.  Conditions  on  which  damage  to  subaqueous  cable 
may  be  recovered.  No  telegraph  or  telephone  corporation  can 
recover  damages  for  the  breaking  or  injuring  of  any  sub- 
aqueous telegraph  or  telephone  cable,  unless  such  corporation 
has  previously  erected  on  either  bank  of  the  waters  under 
which  the  cable  is  placed,  a  monument,  indicating  the  place 
where  the  cable  lies,  and  publishes  for  one  month  in  some 
newspaper  most  likely  to  give  notice  to  navigators,  a  notice 
giving  a  description  and  the  purpose  of  the  monuments,  and 
the  general  course,  landings,  and  termini  of  the  cable. 
Legislation  §  539.     1.  Enacted  March  21,  1872;  based  on  Stats.  185", 

p.  171,  §  3. 

2.  Amendment  by  Stats.  1901,  p.  375;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  492,  in  repealing  Title  VII,  and  re- 
enacted  and  amended  by  the  same  act,  (1)  adding  "or  telephone" 
after  "telegraph"  in  both  instances,  and  (2)  changing  "injury"  to 
"injuring"  after  "breaking  or."     See  ante.  Legislation  Title  VII. 

§  540.  May  dispose  of  certain  rights.  Any  telegraph  or 
telephone  corporation  may  at  any  time,  with  the  consent  of 
the  persons  holding  two  thirds  of  the  issued  stock  of  the  cor- 
poration, sell,  lease,  assign,  transfer,  or  convey  any  rights, 
privileges,  franchises,  or  property  of  the  corporation,  except 
its  corporate  franchise. 

Legislation  §  540.     1.  Enacted  March  21,  1872;  based  on  Stats.  1861. 

p.  84,  §  6. 

2.  Amendment  by  Stats.  1901,  p.  375;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  492,  in  repealing  Title  VII,  and  re- 
enacted  and  amended  by  the  same  act,  adding  "or  telephone"  after 
"telegraph."     See  ante,  Legislation  Title  VII. 


257  WATER   AND    CANAL   CORPORATIONS.  §  549 

§  541.     Rates  of  charges  to  be  fixed,  and  how  published. 

[Repealed  1874;  Code  Amdts.  1873-74,  p.  216.] 
Legislation  §  541.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Cod^  Amdts.  1873-74,  p.  216. 


TITLE  VIII. 
Water  and  Canal  Corporations. 

§  548.     Corporation  may  obtain  contract  to  snpjily  city  or  town. 

§  .549.     Must   furnish   water   for    family   use   upon    demand.     Supervisors 

may  prescribe  rules. 
§  550.     Eight  to  use  streets,  ways,  alleys,  and  roads.     [Eepealed.] 
§  551.     Construction  of  canal,  etc. 
§  552.     Eight  of  purchasers  to  use  water  for  irrigating. 

§  548.  Corporation  may  obtain  contract  to  supply  city  or 
town.  No  corporation  formed  to  supply  any  city,  city  and 
county,  or  town  with  water  must  do  so  unless  previously 
authorized  by  an  ordinance  of  the  authorities  thereof,  or  un- 
less it  is  done  in  conformity  with  a  contract  entered  into 
between  the  city,  city  and  county,  or  town  and  the  corpora- 
tion. Contracts  so  made  are  valid  and  binding  in  law,  but 
do  not  take  from  the  city,  city  and  county,  or  town  the  right 
to  regulate  the  rates  for  water,  nor  must  any  exclnsive  right 
be  granted.  No  contract  or  grant  must  be  made  for  a  term 
exceeding  fifty  years. 

Water  rights:   See  post,  §§  1410  et  seq. 

Legislation  §  548.     Enacted   March   21,   1872;   based  on   Stats.   1852, 

p.  171,  §3. 

§  549.  Must  furnish  water  for  family  use  upon  demand. 
Supervisors  may  prescribe  rules.  All  corporations  formed  to 
snpply  water  to  cities  or  towns  must  furnish  pnre  fresh  water 
to  the  inhabitants  thereof,  for  family  uses,  so  Ions  as  the  sup- 
ply permits,  at  reasonable  rates  and  without  distinction  of 
persons,  upon  proper  demand  therefor;  and  must  furnish 
water  to  the  extent  of  their  means,  in  case  of  fire  or  other  great 
necessity,  free  of  charge.  The  board  of  supervisors,  or  the 
proper  city  or  town  authorities,  may  prescribe  proper  rules 
relating  to  the  delivery  of  water,  not  inconsistent  with  the 
laws  of  the  state.  [Amendment  approved  1905 ;  Stats.  1905, 
p.  580.]  ^  ^^W 

Legislation  §  549.  1.  Enacted  March  21,  1872  (based  on  Stats.  1858, 
p.  219,  §4),  (1)  the  first  sentence  reading  as  at  pre.sent,  (2)  the  sec- 
tion thereafter  reading,  "The  rates  to  be  charged  for  water  must  be 
determined  by  a  board  of  commissioners,  to  be  selected  as  follows: 
Two  by  the  city  and  county,  or  city  or  town  authorities,  and  two  by 
Civ.  Code — 17 


§  551  CIVIL  CODE.  258 

the  water  eompany;  and  in  case  they  cannot  agree  to  the  valuation 
they  must  choose  a  fifth  member  of  the  board;  if  the  four  commis- 
sioners cannot  agree  upon  a  fifth,  then  the  county  judge  of  the  county 
must  appoint  such  fifth  person.  The  decision  of  the  majority  of  the 
board  determines  the  rates  to  be  charged  for  water  for  one  year,  and 
until  new  rates  are  established.  The  board  of  supervisors,  or  the 
proper  city  or  town  authorities,  may  prescribe  other  proper  rules  relat- 
ing to  the  delivery  of  water,  not  inconsistent  with  the  laws  of  this 
state." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  216,  (1)  the  first  sentence 
reading  same  as  in  the  original  code  section  and  as  at  present;  (2)  the 
second  and  third  sentences  of  the  original  code  section  being  changed 
to  read,  "The  rates  to  be  charged  for  water  must  be  determined  by 
commissioners,  to  be  selected  as  follows:  two  by  the  city  and  county 
or  city  or  town  authorities,  or  when  there  are  no  city  or  town  authori- 
ties, by  the  board  of  supervisors  of  the  county,  and  two  by  the  water 
company;  and  in  case  a  majority  cannot  agree  to  the  valuation,  the 
four  commissioners  must  choose  a  fifth  commissioner;  if  they  cannot 
agree  upon  a  fifth,  then  the  county  judge  of  the  county  must  appoint 
such  fifth  person.  The  decision  of  the  majority  of  the  commissioners 
shall  determine  the  rates  to  be  charged  for  water  for  one  year,  and 
until  new  rates  are  established";  (3)  the  final  sentence  reading  as  at 
present. 

3.  Amendment  by  Stats.  1901,  p.  375;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  580;  the  code  commissioner  saying, 
"The  change  consists  in  the  omission  of  the  two  sentences  following 
the  word  'charge,'  said  sentences  having  been  superseded  by  the  pro- 
visions of  the  constitution  of  1879,  providing  for  the  mode  in  which 
water  rates  shall  be  fixed." 

§  550.  Right  to  use  streets,  ways,  alleys,  and  roads.  [Re- 
pealed 1905;  stats.  1905,  p.  580.] 

Legislation  §  550.     1.  Enacted  March  21,  1872. 

2.  Repeal  by  Stats.  1901,  p.  375;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Eepealed  by  Stats.  1905,  p.  580;  the  code  commissioner  saying, 
"This  section  is  an  expression  of  the  constitutional  provisions  found  in 
the  constitution  of  1879,  respecting  the  right  of  corporations  to  use 
streets  for  laying  water-pipes,  and  is,  therefore,  repealed." 

§  551.  Construction  of  canal,  etc.  No  canal,  flume,  or  other 
appliance  for  the  condnctinof  of  water  must  be  so  laid,  con- 
structed, or  maintained  as  to  obstruct  any  public  highway; 
and  every  person  or  corporation  owning,  maintaining,  oper- 
ating, or  using  any  such  canal,  flume,  or  appliance,  crossing 
or  running  along  any  public  highway,  must  construct,  main- 
tain, and  keep  in  repair  such  bridges  across  the  same  as  may 
be  necessary  to  the  safe  and  convenient  use  of  such  highway 
by  the  public;  and  on  failure  so  to  do,  the  board  of  super- 
visors of  the  county,  after  seven  days'  notice  in  Avriting  to  said 
person  or  corporation,  may  construct  or  repair  such  bridge  or 
bridges,  and  recover  of  such  person  or  corporation  tlie  amount 


259  WATER   AND   CANAL  CORPORATIONS.  §  552 

of  the  expenditure  made  in  so  doing.  [Amendment  approved 
1905;  Stats.  1906,  p.  580.] 

Canal  and  ditch  corporations.  See  act  of  May  14,  1862  (Stats,  1862, 
p.  540);  act  of  April  2,  1870  (Stats.  1869-70,  p.  660);  act  of  March  30, 
1872  (Stats.  1871-72,  p.  732).  These  acts  were  probably  repealed  by 
§  288,  Civil  Code. 

Legislation  §  551.  1.  Enacted  March  21,  1872  (based  on  Stats.  1862, 
p.  541,  §  4),  and  then  read:  "Every  water  or  canal  corporation  must 
construct  and  keep  in  good  repair,  at  all  times,  for  public  use,  across 
their  canal,  flume,  or  water-pipe,  all  of  the  bridges  that  the  board  of 
supervisors  of  the  county  in  which  such  canal  is  situated  may  require, 
the  bridges  being  on  the  lines  of  public  highways  and  necessary  for 
public  uses  in  connection  with  such  highways;  and  all  water-works 
must  be  so  laid  and  constructed  as  not  to  obstruct  public  highways." 

2.  Amendment  by  Stats.  1901,  p.  375;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  580;  the  code  commissioner  saying, 
"The  design  of  the  amendment  is  to  better  express  the  purpose  of  the 
section  and  to  remove  the  objections  that  it  may  be  unconstitutional 
in  vesting  the  supervisors  with  an  arbitrary  power  to  require  or  not 
require  bridges,  and  to  supply  the  present  defect  in  not  providing  any 
means  of  coercing  the  performance  of  the  duty  created." 

§  552.     Right   of  purchasers   to   use   water   for  irrigating. 

Whenever  any  corporation,  organized  under  the  laws  of  this 
state,  furnishes  water  to  irrigate  lands  which  said  corporation 
has  sold,  the  right  to  the  flow  and  use  of  said  water  is  and 
shall  remain  a  perpetual  easement  to  the  land  so  sold,  at  such 
rates  and  terms  as  may  be  established  by  said  corporation  in 
pursuance  of  law.  And  whenever  any  person  who  is  cultivat- 
ing land  on  the  line  and  within  the  flow  of  any  ditch  owned 
by  such  corporation,  has  been  furnished  water  by  it  with 
which  to  irrigate  his  land,  such  person  shall  be  entitled  to  the 
continued  use  of  said  water,  upon  the  same  terms  as  those  who 
have  purchased  their  land  of  the  corporation. 

Act  regulating  sale,  rental  and  distribution  of  appropriated  water: 

See  post.  Appendix,  tit.  "Water  Companies." 
Irrigation.     Statutes  relating  to:  See  General  Laws,  tit.  "Irrigation." 
Legislation  §  552.     Added  by  Code  Amdts.  1875-76,  p.  77. 


§  559  CIVIL  CODE.  260 

TITLE  IX. 
Homestead  Corporations. 

§  557.     Time  of  corporate  existence. 

§  558.  By-laws  must  specify  time  for  and  amount  of  payment  of  install- 
ments, and  penalty  for  failure  to  pay.  By-laws  to  be  furnished 
to  any  member  on   demand. 

§  559.     Advertisement  and  sale  of  delinquent  and  forfeited  shares. 

§  560.     May  borrow  and  loan  funds.     How,  and  for  what  time. 

§  561.     Minor  children,  wards,  and  married  women  may  own  stock. 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  exceeding  two  hun- 
dred thousand  dollars. 

§  563.     When  corporation  is  terminated,  and  how. 

§  564.     Payment  of  premiums. 

§  565.     Annual  report  to  be  published. 

§  566.     Publication  in  certain  cases. 

§  557.     Time    of   corporate   existence.     Corporations   organ- 
ized for  the  purpose  of  acquirino-  lands  in  large  tracts,  paying 
off   enenmliranees   thereon,   improving   and   subdividing   them 
into  homestead  lots  or  parcels,  and  distributing  them  among 
the  shareholders,  and  for  the  accumulation  of  a  fund  for  such 
purposes,  are  knoAvn  as  homestead  corporations,  and  must  not 
have  a  corporate  existence  for  a  longer  period  than  ten  years. 
Time  of  corporate  existence:  See  post.  Appendix,  tit.  "Homesteads." 
Legislation  §  557.     Enacted   March   21.   1872;    based   ou   Stats.    1861, 
p.  567,  §§1,  3;   Stats.  1867-68,  p.  539,  §  1. 

§  558.  By-laws  must  specify  time  for  and  amoimt  of  pay- 
ment of  installments,  and  penalty  for  failure  to  pay.  By-laws 
to  be  furnished  to  any  member  on  demand.  Such  corporations 
must  specify  in  their  by-laws  the  times  Avhen  the  installments 
of  the  capital  stock  are  paya^  le.  the  amount  thereof,  and  the 
fines,  penalties,  or  forfeitures  incurred  in  ease  of  default.  A 
printed  copy  of  the  articles  of  incorporation  and  by-laws  must 
be  furnished  to  any  shareholder  on  demand. 
Legislation  §  558.     Enacted  March  21,  1872. 

§  559.  Advertisement  and  sale  of  delinquent  and  forfeited 
shares.  Whenever  any  shares  of  stock  are  declared  forfeited 
by  resolution  of  the  board  of  directors,  the  directors  may  ad- 
vertise the  same  for  sale,  giving  the  name  of  the  subscriber 
and  the  number  of  shares,  by  notice  of  not  less  than  three 
weeks,  published  at  least  once  a  week  in  a  newspaper  of  gen- 
eral circulation  in  the  city,  town,  or  county  where  tlie  princi- 
pal place  of  business  of  such  corporation  is  located.  Such  sale 
must  be  made  at  auction,  under  the  direction  of  the  secretary 
of  the  company.     The  corporation  may  be  a  bidder,  and  the 


261        '  HOMESTEAD  CORPORATIONS.  §  562 

shares  must  be  disposed  of  to  the  highest  1  idder  for  cash.  No 
defect,  informality,  or  irregularity  in  the  proceedings  respect- 
ing the  sale  invalidates  it,  if  notice  is  given  as  herein  provided. 
After  the  sale  is  made  the  secretary  must,  on  receipt  of  the 
purchase-money,  transfer  to  the  purchaser  the  shares  sold,  and 
after  deducting  from  the  proceeds  of  such  sale  all  installments 
then  due,  and  all  expenses  and  charges  of  sale,  must  hold  the 
residue  subject  to  the  order  of  the  delinquent  subscriber. 

Legislation  §  559.  Enacted  March  21,  1872;  based  on  Stats.  1863-64, 
p.  492;  Stats.  1867-68,  p.  540,  §  1. 

§  560.  May  borrow  and  loan  funds.  How,  and  for  what 
time.  Homestead  corporations  ma}'  borrow  money  for  the  pur- 
poses of  the  corporation,  not  exceeding  at  au}^  one  time  one 
fourth  of  the  aggregate  amount  of  the  shares  or  parts  of  shares 
actually  paid  in,  and  the  income  thereof;  no  greater  rate  of 
interest  must  be  paid  therefor  than  twelve  per  cent  per  annum. 
For  the  purpose  of  completing  the  purchase  of  lands  intended 
to  be  divided  and  distributed,  they  may  borrow  on  the  security 
of  their  shares  on  the  laud  thus  purchased,  or  that  owned  by 
the  corporation  at  the  time  of  procuring  the  loan,  any  sum 
of  money  which,  together  with  the  interest  contracted  to  be- 
come due  thereon,  will  not  exceed  ninety  per  cent  of  the  un- 
paid amount  subscribed  by  the  shareholders ;  but  no  loan  must 
be  made  to  the  corjDoration  for  a  term  extending  beyond  that 
of  its  existence. 

Legislation  §  560.  Enacted  March  21,  1872;  based  on  Stats.  1S69-70, 
p.  474,  §  1;  Stats.  1861,  p.  567,  §  5.  The  code  commissioners  say: 
"There  can  be  no  good  reason  assigned  for  having  a  surplus  of  cash 
on  hand  by  a  homestead  corporation;  much  less  can  there  be  for  loan- 
ing it  to  its  own  members,  hence  we  have  omitted  §  18  of  the  act  of 
1861." 

§  561.  Minor  children,  wards,  and  married  women  may  own 
stock.  Such  shares  of  stock  in  homestead  corporations  as  may 
be  acquired  by  children,  the  cost  of  which,  and  the  deposits 
and  assessments  on  which  are  paid  from  the  personal  earnings 
of  the  children,  or  with  gifts  from  persons  other  than  their 
male  parents,  may  be  taken  and  held  for  them  by  their  parents 
or  guardians.  Married  women  may  hold  such  shares  as  they 
acquire  with  their  personal  earnings,  or  those  of  their  children, 
voluntarily  bestowed  therefor,  or  from  property  bequeathed  or 
given  to  them  by  persons  other  than  their  husbands. 

Legislation  §  561.  Enacted  March  21,  1872;  based  on  Stats.  1861, 
p.  567,  §  6. 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  exceed- 
ing two  hundred  thousand  dollars.  Homestead  corporations 
must  not  purchase  and  sell,  or  otherwise  acquire  and  dispose 


§  564     ^  CIVIL  CODE.  262 

of  real  property,  or  any  interest  therein,  or  any  personal 
property,  for  the  sole  purpose  of  speculation  or  profit.  Nor 
must  any  such  corporation  at  any  one  time  own  or  hold,  in 
trust  or  otherwise,  for  its  purposes,  real  property,  or  any  in- 
terest therein,  which  in  the  aggregate  exceeds  in  cash  value 
the  sum  of  two  hundred  thousand  dollars.  For  any  violation 
of  the  provisions  of  this  section,  corporations  forfeit  their 
corporate  rights  and  powers.  On  the  application  of  any  citi- 
zen to  a  court  of  competent  jurisdiction  such  forfeiture  may 
be  adjudged,  and  the  judgment  carries  with  it  costs  of  the 
proceedings. 

Legislation  §  562.     Enacted  March  21,  1872. 

§  563.  When  corporation  is  terminated,  and  how.  Except 
for  the  purpose  of  winding  up  and  settling  its  affairs,  every 
homestead  corporation  must  terminate  at  the  expiration  of  the 
time  fixed  for  its  existence  in  the  articles  of  ■incorporation,  or 
when  dissolved  as  provided  in  this  part.  No  dividend  of 
funds  must  ])e  made  on  termination  of  its  corporate  existence, 
until  its  debts  and  liabilities  are  paid ;  and  upon  the  final 
settlement  of  the  affairs  of  the  corporation,  or  upon  the  ter- 
mination of  its  corporate  existence,  the  directors,  in  such  man- 
ner as  they  may  determine,  must  divide  its  property  among  its 
shareholders  in  proportion  to  their  respective  interests,  or, 
upon  the  application  of  a  majority  in  interest  of  the  stock- 
holders, must  sell  and  dispose  of  any  or  all  of  the  real  estate 
of  the  corporation  upon  such  terms  as  may  be  most  conducive 
to  the  interests  of  all  the  stockholders,  and  must  convey  the 
same  to  the  purchaser,  and  distribute  the  proceeds  among  the 
shareholders,  or  may  at  any  time,  when  best  for  the  interests 
of  all  the  shareholders,  cause  the  lands  of  the  corporation  to 
be  subdivided  into  lots  and  distributed,  by  sale  for  premiums, 
at  auction  or  otherwise,  among  the  shareholders. 

Legislation  §  563.     Enacted   March   21,   1872;    based   on   Stats.   1S61, 

p.  567,  §  7;  Stats.  1869-70,  p.  474,  §  1. 

§  564.  Payment  of  premiums.  Such  premiums  on  lots  may 
be  made  payable  at  the  time  they  are  bid  off,  and,  if  not  so 
paid  on  any  lot  of  land,  the  directors  may  immediately  offer 
the  same  for  sale  again.  If  made  payable  at  a  future  day,  and 
any  shareholder  fails  to  pay  his  l)id  on  the  day  the  same  is 
made  due  and  payable,  the  directors  may  advertise  and  sell 
the  shares  of  stock  representing  the  lots  of  land  on  which  the 
premiums  remain  unpaid,  in  the  manner  provided  in  the  by- 
laws for  the  sale  of  shares  on  account  of  delinquent  install- 
ments and  premiums. 


263  SAVINGS  AND   LOAN   CORPORATIONS.  §  571 

Legislation  §  564.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  474,  §  1. 

§  565.  Annual  report  to  be  published.  The  actual  financial 
condition  of  all  homestead  corporations  must,  by  the  directors 
thereof,  be  published  annually  in  the  [a]  newspaper  published 
at  the  principal  place  of  business  of  the  corporation,  for  four 
weeks,  if  published  in  a  weekly,  and  two  weeks,  if  published 
in  a  dail}^  The  statement  must  be  made  up  to  the  end  of  each 
year,  and  must  be  verified  l)y  the  oath  of  the  president  and 
secretary,  showing  the  items  of  property  and  liabilities. 

Legislation  §  565.     Enacted   March   21,   1872;    based   on   Stats.    1861, 
p.  567,  §  8. 

§  566.     Publication  in  certain  cases.     In  any  case  in  which 
a  publication  is  required,  and  no  newspaper  is  published  at  the 
principal  place  of  business,  the  publication  may  be  made  in 
a  paper  published  in  an  adjoining  county. 
Legislation  §  566.     Enacted  March  21,  1872. 


TITLE  X. 
Savings  and  Loan  Corporations. 

§  571.  May  loan  money.  On  what  terms,  how,  and  to  whom,  and  how 
long. 

§  572.     Capital  stock,  and  rights  and  privileges  thereof. 

§  573.  No  dividends,  except  from  surplus  profits.  To  contract  no  lia- 
bility, except  for  deposits. 

§  574.  Property  which  may  be  owned  by  corporations.  Restrictions  in 
purchases. 

§  575.     Married  women  and  minors  may  own  stock  in  their  own  right. 

§  576.  May  issue  transferable  certificates  of  deposit.  Special  certifi- 
cates. 

§  577.     To  provide  reserve  fund  for  the  payment  of  losses. 

§  578.     Prohibition  on  director  and  officer,  and  what  vacates  office. 

§  579.     Definition  of  phrase  "create  debts." 

§  580.     Banks,  amount  of  capital  stock  required.      [Repealed.] 

§  581.     Restrictions  on  savings  banks. 

§  582.     True  names  of  persons  engaged  in  banking  must  be  shown. 

§  583.     Dividends.     Surplus  fund. 

§  583a.  Capital  actually  paid  up  must  be  published. 

§  583b.  Report  of  unclaimed  deposits;   publication  of  same. 

§  571.  May  loan  money.  On  what  terms,  how,  and  to 
whom,  and  how  long".  Corporations  organized  for  the  purpose 
of  accumulating  and  loaning  the  funds  of  their  members,  stock- 
holders, and  depositors,  may  loan  and  invest  the  funds  thereof, 
receive  deposits  of  money,  loan,  invest,  and  collect  the  same, 
with  interest,  and  may  repay  depositors  with  or  without  in- 


§  573  CIVIL  CODE.  264 

terest.  No  such  corporation  must  loan  money,  except  on  ade- 
quate security  on  real  or  personal  property,  and  such  loan 
must  not  be  for  a  longer  period  than  ten  years.  [Amendment 
approved  1901;  Stats.  1901,  p.  295.] 

Banks  cannot  he  created,  except  under  general  laws:  Const.,  art.  xii, 
§5. 

--'  Savings  banks:  See  Bankiug  x\ct,  art.  ii,  post,  Appendix,  tit.  "Bank- 
ing." . 

Legislation  §  571.  1.  Enacted  March  21,  1872;  based  on  Stats.  1862, 
p.  199,  §§  4,  5;  Stats.  1864,  p.  158,  §  2. 

2.  Amended  by  Stats.  1901,  p.  295,  at  end  of  section,  substituting 
"ten"  for  "six"  before  "years." 

§572.  Capital  stock,  and  rights  and  privileges  thereof. 
When  savings  and  loan  corporations  have  a  capital  stock  speci- 
fied in  their  articles  of  incorporation,  certificates  of  the  owner- 
ship of  shares  may  be  issued ;  and  the  rights  and  privileges 
to  be  accorded  to,  and  the  obligations  to  be  imposed  upon, 
such  capital  stock,  as  distinct  from  those  of  depositors,  must 
be  fixed  and  defined,  either  in  the  articles  of  incorporation  or 
in  the  by-laws. 

Legislation  §  572.     Enacted   March   21,    1872;    based   on   Stats.    1862, 

p.  203,  §  17. 

§  573.  No  dividends,  except  from  surplus  profits.  To  con- 
tract no  liability,  except  for  deposits.  The  directors  of  sav- 
ings and  loan  corporations  may,  at  such  times  and  in  suclj 
manner  as  the  by-laws  prescribe,  declare  and  pay  dividends  of 
so  much  of  the  profits  of  the  corporation,  and  of  the  interest 
arising  from  the  capital  stock  and  deposits,  as  may  be  appro- 
priated for  that  purpose  under  the  by-laws  or  under  their  agree- 
ments with  depositors.  The  directors  must  not  contract  any 
debt  or  liability  against  the  corporation  for  any  purpose  what- 
ever, except  for  deposits.  The  capital  stock  and  the  assets 
of  the  corporation  are  a  security  to  depositors  and  stock- 
holders, depositors  having  the  priority  of  security  over  the 
stockholders,  but  the  by-laws  may  provide  that  the  same  secur- 
ity shall  extend  to  deposits  made  by  stockholders. 
Dividends:  See  post,  §  583. 

Legislation  §  573.  Enacted  March  21,  1872;  based  on  Stats.  1869-70. 
p.  130,  §  1;  Stats.  1862,  p.  199,  §  10;  Stats.  1862,  p.  199,  §  22.  The  code 
commissioners  say:  "It  has  been  suggested  that  depositors  and  stock- 
holders should  be  placed  by  the  law  [the  commissioners  italicize  the 
word  "law"]  on  the  same  footing.  We  think  there  is  wisdom  in  the 
distinction.  A  corporation  which  gives  outside  depositors  a  priority 
of  security  is  entitled  to  priority  of  confidence.  All,  however,  may. 
if  they  choose,  by  their  by-laws,  obliterate  this  distinction.  We  think 
it  well  to  allow  the  corporation  to  invite  this  superior  confidence,  or 
not,  as  they  choose." 


265  SAVINGS   AND   LOAN    CORPORATIONS.  §  574 

§  574.  Property  which  may  be  owned  by  corporations.  Re- 
strictions in  purchases.  Savings  and  loan  corporations  may 
purchase,  hold  and  convey  real  and  personal  property  as 
follows : 

1.  The  lot  and  building  in  which  the  business  of  the  corpora- 
tion is  carried  on,  the  cost  of  which  must  not  exceed  one  hun- 
dred thousand  dollars ;  except,  on  a  vote  of  two  thirds  of  the 
stockholders  the  corporation  may  increase  the  sum  to  an 
amount  not  exceeding  two  hundred  and  fifty  thousand  dollars ; 

2.  Such  as  may  have  been  mortgaged,  pledged  or  conveyed 
to  it  in  trust,  for  its  benefit  in  good  faith,  for  money  loaned 
in  pursuance  of  the  regular  business  of  the  corporation ; 

3.  Such  as  may  have  been  purchased  at  sales  under  pledges, 
mortgages  or  deeds  of  trust  made  for  its  benefit,  for  money 
so  loaned,  and  such  as  may  be  conveyed  to  it  by  borrowers  in 
satisfaction  and  discharge  of  loans  made  thereon ; 

4.  No  such  corporation  must  purchase,  hold  or  convey  real 
estate  in  any  other  case  or  for  any  other  purpose;  and  all  real 
estate  described  in  subdivision  three  of  this  section  must  be 
sold  by  the  corporation  within  ten  years  after  the  title  thereto 
is  vested  in  it  by  purchase  or  otherwise ; 

5.  No  such  corporation  must  purchase,  own,  or  sell  personal 
property,  except  such  as  may  be  requisite  for  its  immediate 
accommodation  for  the  convenient  transaction  of  its  business, 
mortgages  on  real  estate,  bonds,  securities  or  evidences  of  in- 
debtedness, public  or  private,  gold  and  silver  bullion  and 
United  States  mint  certificates  of  ascertained  value  and  evi- 
dences of  debt  issued  by  the  United  States ; 

6.  No  such  corporation  must  purchase,  hold  or  convey  bonds, 
securities  or  evidences  of  indebtedness,  public  or  private,  ex- 
cept bonds  of  the  United  States,  of  the  state  of  California,  and 
of  the  counties,  cities,  or  cities  and  counties,  or  towns,  or 
school  districts  of  the  state  of  California,  or  bonds  of  railroad 
or  street-railroad  corporations  owning  property  and  having 
their  principal  place  of  business  in  the  state  of  California,  un- 
less such  corporation  has  a  capital  stock  or  reserved  fund  paid 
in  of  not  less  than  one  hundred  thousand  dollars.  [Amend- 
ment approved  1901;  Stats.  1901,  p.  659.] 

May  hold  what  property:  See  Banking  Act,  §  61,  post,  Appendix, 
tit.  "Banking." 

Legislation  §  574.  1.  Enacted  Marcii  21,  1872  (based  ou  Stats.  1862, 
p.  199,  §13;  Stats.  18G4,  p.  158,  §  3;  Stats.  1865-66,  p.  626,  §  1),  (1) 
the  introductory  paragraph  and  subds.  1  and  2  reading  as  at  present; 
(2)  subd.  3  ending  with  the  words  "money  so  loaned"  (tlie  addition 
to  the  present  subdivision  having  been  made  in  1873-74);  (3)  subd.  4 
having  the  words  "five  years"  instead  of  "ton  years"  (the  change  hav- 
ing been   made  in   1901);    (4)   subd.  5   did  not  have   the   word   "such" 


§  576  CIVIL  CODE.  266 

before  "corporation"  in  first  line  of  subdivision;  (5)  subd.  6  reading, 
"No  corporation  must  purchase,  hold,  or  convey  bonds,  securities,  or 
evidences  of  indebtedness,  public  or  private,  except  bonds  of  the 
United  States,  of  the  state  of  California,  and  of  the  counties,  cities, 
or  cities  and  counties,  or  towns  of  the  state  of  California,  unless  such 
corporation  has  a  capital  stock  or  reserved  fund,  or  both  capital  stock 
and  reserved  fund,  paid  in,  of  not  less  than  three  hundred  thousand 
dollars." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  273,  (1)  the  introductory 
paragraph  and  subds.  1  and  2  reading  same  as  original  code  section 
and  as  at  present;  (2)  subd.  3  having  the  addition  made  at  the  end, 
and  reading  as  at  present;  (3)  subds.  4  and  5  reading  same  as  original 
code  section  (see  supra) ;  (4)  subd.  6  did  not  contain  the  words  of  the 
original  code  subdivision,  "or  both  capital  stock  and  reserved  fund." 

3.  Amendment  by  Stats.  1901,  p.  375  (approved  March  16,  1901); 
unconstitutional.     See  note,  §  4,  ante. 

4.  Amended  by  Stats.  1901,  p.  659,  (1)  in  subd.  4,  changing  "five 
years"  to  "ten  years";  (2)  in  subd.  5,  adding  "such"  before  "corpora- 
tion" in  first  line;  (3)  in  subd.  6,  (a)  adding  "such"  before  "corpora- 
tion" in  first  line,  and  "or  school  districts  of  the  state  of  California, 
or  bonds  of  railroad  or  street-railroad  corporations  owning  property 
and  having  their  principal  place  of  business  in"  before  "the  state  of 
California,"  and  (b)  changing  "three"  to  "one"  before  "hundred  thou- 
sand dollars"  at  end. 

§  575.  Married  women  and  minors  may  own  stock  in  their 
own  right.  Married  women  and  minors  may,  in  their  own 
right,  make  and  draw  deposits  and  draw  dividends,  and  give 
valid  receipts  therefor. 

Dividends  on  stock  of  married  women:  Ante,  §  325. 
Legislation  §  575.     Enacted   March   21,   1872;    based   on   Stats.    1862. 
p.  199,  §§  14,  15;  Stats.  1864,  p.  158,  §  4;  Slats.  1869-70,  p.  132,  §§  2,  3. 

§  576.  May  issue  transferable  certificates  of  deposit.  Spe- 
cial certificates.  Savings  and  loan  corporations  may  issue  gen- 
eral certificates  of  deposit,  which  are  transferable,  as  in  other 
cases,  by  indorsement  and  delivery ;  may  issue,  when  requested 
by  the  depositor,  special  certificates,  acknowledging  the 
deposit  by  the  person  therein  named  of  a  specified  sum  of 
money,  and  expressly  providing  on  the  face  of  such  certificate 
that  the  sum  so  deposited  and  therein  named  may  be  trans- 
ferred only  on  the  books  of  the  corporation ;  payment  there- 
after made  by  the  corporation  to  the  depositor  named  in  such 
certificate,  or  to  his  assignee  named  upon  the  books  of  the 
corporation,  or,  in  case  of  death,  to  the  legal  representative  of 
such  person,  of  the  sum  for  which  such  special  certificate  was 
issued,  discharges  the  corporation  from  all  further  liability 
on  account  of  the  money  so  paid. 

Issuance  of  certificates  of  deposit:  See  Banking  Act,  §  63,  post,  Ap- 
pendix, tit.  "Banking."' 

Legislation  §  576.  Enacted  March  21,  1872;  based  on  Stats.  1S67-6S, 
p.  459,  §  1. 


267  SAVINGS  AND  LOAN    CORPORATIONS.  §  578 

§  577.     To  provide  reserve  fund  for  the  payment  of  losses. 

Savings  and  loan  corporations  may  prescribe  by  their  by-laws 
the  time  and  conditions  on  which  repaj^ment  is  to  be  made  to 
depositors ;  but  whenever  there  is  any  call  by  depositors  for 
repayment  of  a  greater  amount  than  the  corporation  may  have 
disposable  for  that  purpose,  the  directors  or  officers  thereof 
must  not  make  any  new  loans  or  investments  of  the  funds  of 
the  depositors,  or  of  the  earnings  thereof,  until  such  excess  of 
call  has  ceased.  The  directors  of  any  such  corporation  having 
no  capital  stock  must  retain,  on  each  dividend-day,  at  least 
five  per  cent  of  the  net  profits  of  the  corporation,  to  constitute 
a  reserve  fund,  which  must  be  invested  in  the  same  manner 
as  other  funds  of  the  corporation,  and  must  be  used  toward 
paying  any  losses  which  the  corporation  may  sustain  in  pur- 
suing its  lawful  business.  The  corporation  may  provide  by 
its  by-laws  for  the  disposal  of  any  excess  in  the  reserve  fund 
over  one  hundred  thousand  dollars,  and  the  final  disposal,  upon 
the  dissolution  of  the  corporation,  of  the  reserve  fund,  or  of 
the  remainder  thereof,  after  payment  of  losses. 

Legislation  §  577.  EDacted  March  21,  1872;  based  on  Stats.  1862, 
p.  201,  §  11;  Stats.  1869-70,  pp.  523,  822.  The  code  commissioners  sav: 
"The  act  of  March  31,  1870  (Stats.  1869-70,  p.  523),  and  the  act  of 
April  4,  1870  (Stats.  1869-70,  p.  822),  are  omitted.  The  corporations 
intended  to  be  provided  for  therein  can  be  formed  under  the  law  as 
here  proposed,  and  thus  the  revised  laws  will  be  relieved  from  the 
embarrassments  and  complications  which  so  many  special  provisions 
have  induced." 

§  578.     Prohibition  on  director  and  officer,  and  what  vacates 
office.     No  director  or  officer  of  any  savings  and  loan  corpora- 
tion must,  directly  or  indirectly,  for  himself  or  as  the  partner 
or  agent  of  others,  borrow  any  of  the  deposits  or  other  funds 
of  such  corporation,  nor  must  he  become  an  indorser  or  surety 
for  loans   to   others,   nor   in   any   manner   be   an   obligor   for 
moneys  borrowed  of  or  loaned  by  such  corporation.     The  office 
of  any  director  or  officer  who  acts  in  contravention  of  the  pro- 
visions of  this  section  immediately  thereupon  becomes  vacant. 
Overdrawing  of  account,  by  officer,  a  misdemeanor:  Pen.  Code,  §  561. 
Legislation  §  578.     Enacted  March  21,1872.     The  code  commissioners 
say:  "The  last  section  is  a  suggestion  from  .Tames  De  Fremery,  of  the 
San  Francisco  Savings  Union,  indorsed  by  Alexander  Campbell,  attor- 
ney at  law,  San  Francisco.     We  are  of  the  opinion  that  its  adoption 
will  meet  with  very  general  disfavor  from  the  conductors  of  savings 
banks,  but  hope  in  this  we  may  be  agreeably  disappointed.     There  is 
doubtless  a  class  of  persons  engaged  in  the  conduct  of  the  business  of 
such  banks  who  would  be  glad  to  be  protected  against  applications  for 
personal   favor.     Law-makers  should  be  governed  by  a  desire  to  give 
the   greatest   possible   security   to    depositors,   as  a   paramount   object. 
Banks  of  savings  are  almost  indispensable,  and  as  far  as  possible  they 
should  prove  to  be  what  their  name  imports,  and  provide  ample  security 


§  582  CIVIL  CODE.  268 

for  all  deposits.  It  is  with  this  view  alone  that  we  have  added  the 
amendment,  and  recommend  its  adoption,  thereby  placing  beyond  the 
officers  even  an  inducement  to  lessen  the  security  of  innocent  and  oft- 
times  ignorant  depositors." 

§  579.  Definition  of  phrase  "create  debts."  Receiving  de- 
posits, issuing  certificates  of  deposit,  checks,  and  bills  of 
exchange  and  the  like,  in  the  transaction  of  the  business  of 
savings  and  loan  corporations,  must  not  be  construed  to  be 
the  creation  of  debts  within  the  meaning  of  the  phrase  "create 
debts,"  in  section  three  hundred  and  nine. 

Creation  of  debts:  See  Banking  Act,  §  66,  post,  Appendix,  tit.  "Bank- 
ing." 

Legislation  §  579.     Enacted  March  21,  1872. 

§  580.  Banks,  amount  of  capital  stock  required.  [Repealed 
1907;  Stats.  1907,  p.  576.] 

Legislation  §  580.     1.  Added  by  Stats.  1903,  p.  87. 

2.  Amended  by  Stats.  1905,  p.\506. 

3.  Eepealed  by  Stats.  1907,  p.  576.  By  Stats.  1901,  p.  376,  a  new 
section  numbered  580  was  added  by  the  code  commissioners  (uncon- 
stitutional. See  note,  §  4,  ante),  which  was  .re-enacted  and  amended 
in  1905  as  §  583b;  q.  v.,  post. 

§  581.  Restrictions  on  savings  banks.  No  savings  bank 
shall  lend  to  exceed  sixty  per  cent  of  the  market  value  of  any 
piece  of  real  estate  to  be  taken  as  security,  except  for  the  pur- 
pose of  facilitating  the  sale  of  property  owned  by  the  corpora- 
tion. And  it  shall  be  unlawful  for  any  savings  and  loan 
society,  or  savings  bank,  to  purchase,  invest,  or  loan  its  capi- 
tal, or  the  money  of  its  depositors,  or  any  part  of  either,  in 
mining  shares  or  stocks.  Any  president  or  managing  officer 
who  knowingly  consents  to  a  violation  of  the  above  provision 
shall  be  deemed  guilty  of  a  felony. 

Restrictions  on  loans:  See  Banking  Act,  §  67,  post,  Appendix  tit. 
"Banking." 

Legislation  §  581.     Added  by  Stats.  1903,  p.  352. 

§  582.  True  names  of  persons  engaged  in  banking  must  be 
shown.  Every  person  or  number  of  persons  not  being  incor- 
porated, engaged  in  the  business  of  banking,  or  publicly  re- 
ceiving money  on  deposit  must  conduct  such  business  under  a 
name  which  shows  the  true  names  of  all  persons  engaged 
therein,  unless  such  person  or  persons  have  complied  with  the 
provisions  of  article  seven  of  chapter  two  of  title  ten  of  part 
four  of  division  third  of  said  Civil  Code.  Every  person  violat- 
ing any  of  the  provisions  of  this  section  is  guilty  of  a  mis- 
demeanor, and  is  punishable  by  imprisonment  in  the  county 
jail  for  not  less  than  ninety  days  nor  more  than  six  months,  or 


269  SAVINGS  AND   LOAN    CORPORATIONS.  §  583b 

by  fine  of  not  less  than  one  hundred  dollars  nor  more  than  five 
hundred  dollars,  or  by  1  otli  such  fine  and  imprisonment. 
Legislation  §  582.     Added  by  Stats.  1903,  p.  352. 

§  583.  Dividends.  Surplus  fund.  The  directors  of  any 
savings  bank,  bank,  or  banking  corporation  having  a  capital 
stock,  may  semi-annually  declare  a  dividend  of  so  much  of  the 
net  profits  of  the  stockholders  as  they  shall  judge  expedient; 
but  every  such  corporation  shall,  before  the  declaration  of  such 
dividend,  carry  at  least  one  tenth  (1-10)  part  of  the  net  profits 
of  the  stockholders  for  the  preceding  half-year  to  its  surplus 
or  reserve  fund  until  the  same  shall  amount  to  twenty-five 
per  centum  of  its  paid-up  capital  stock.  But  the  whole  or  any 
part  of  such  surplus  or  reserve  fund,  if  held  as  the  exclusive 
property  of  stockholders,  may  at  any  time  be  converted  into 
paid-up  capital  stock,  in  which  event  such  surplus  or  reserve 
fund  shall  be  restored  in  manner  as  above  provided  until  it 
amounts  to  twenty-five  per  centum  of  the  aggregate  paid-up 
capital  stock.  A  larger  surplus  or  reserve  fund  may  be  created, 
and  nothing  herein  contained  shall  be  construed  as  prohibitory 
thereof. 

Dividends:  See  Ante,  §  573. 

Legislation  §  583.     Added  by  Stats.  1903,  p.  353. 

§  583a.     Capital  actually  paid  up  must  be  published.     No 

banker,  nor  officer  of  any  bank  or  corporation  doing  a  bank- 
ing business,  shall  advertise  in  any  manner,  or  publish  any 
statement  of  the  capital  stock  authorized  or  subscribed,  unless 
he  advertise  and  publish  in  connection  therewith,  the  amount 
of  capital  actually  paid  up.  Any  officer,  or  the  officers  of  any 
bank  or  corporation  doing  a  banking  business,  advertising  in 
any  manner,  or  publishing,  a  statement  of  the  capital  stock 
of  such  bank  or  banking  corporation,  authorized  or  subscribed, 
without  the  statement  in  connection  therewith  of  the  stock 
actually  paid  up,  shall  be  guilty  of  a  misdemeanor. 
Legislation  §  583a.     Added  by  Stats.  1903,  p.  353. 

§  583b.     Report  of  unclaimed  deposits ;  publication  of  same. 

The  president  of  every  savings  bank,  savings  and  loan  society, 
and  every  other  bank,  depository,  society,  or  institution  in 
which  deposits  of  money  are  made,  whether  any  interest  or 
dividend  is  paid,  or  agreed  to  be  paid,  thereon  or  not,  must, 
within  fifteen  days  after  the  first  day  of  January  of  every  odd- 
numbered  year,  return  to  the  board  of  bank  commissioners  a 
sworn  statement  showing  the  amount  placed  to  his  credit,  the 
last  known  place  of  residence  or  post-office  address,  and  the 
fact  of  death,  if  known  to  such  president,  of  every  depositor 


§  583b  CIVIL  CODE.  270 

who  has  not  made  a  deposit  therein  or  withdrawn  therefrom 
any  part  of  his  deposit,  or  any  part  of  the  interest  or  dividends 
thereon,  for  a  period  of  more  than  ten  years  next  preceding. 
Such  president  must  give  notice  of  these  deposits  in  one  or 
more  newspapers  published  in  or  nearest  the  town,  city,  or  city 
and  county  where  such  bank,  society,  or  other  institution  is 
situated  or  has  its  principal  place  of  business,  at  least  once  a 
week  for  four  successive  weeks,  the  cost  of  such  publication 
to  be  paid  pro  rata  out  of  such  unclaimed  deposits.  This  sec- 
tion does  not  apply  to  any  deposit  made  by  or  in  the  name  of 
a  person  known  to  the  president  to  be  living,  or  which,  with 
the  accumulation  thereon,  is  less  than  fifty  dollars.  The  board 
of  bank  commissioners  must  incorporate  in  their  subsequent 
report  each  return  made  to  them  as  provided  in  this  section. 
Any  president  of  any  of  the  institutions  mentioned  in  this  sec- 
tion who  neglects  or  refuses  to  make  the  sworn  statement 
required  thereby  is  guilty  of  a  misdemeanor. 

Legislation  §  58313.  1.  Addition  by  Stats.  1901,  p.  376,  as  §  580;  uncon- 
stitutional. See  note,  §  4,  ante.  This  unconstitutional  addition  of  the 
code  commissioners  differed  from  the  section  as  enacted  in  1905,  in 
that  it  had  (1)  in  sentence  beginning  "This  section,"  the  word  "and" 
instead  of  "or"  after  "to  be  living,"  and  (2)  in  final  sentence,  "either" 
instead  of  "any"  after  "Any  president  of." 

2.  Added  by  Stats.  1905,  p.  581;  the  code  commissioner  saying,  "This 
section  is  a  codification  of  the  statutes  of  1893,  p.  183,  and  1897,  p.  27, 
the  only  change  made  being  in  the  provisions  concerning  the  person 
who  is  to  make  the  report.  The  original  statute  provided  that  the 
report  should  be  made  by  the  president  or  secretary.  It  has  been 
thought  best  to  impose  the  duty  upon  a  single  officer,  so  that  it  cannot 
be  evaded  by  one  officer,  by  his  saying  that  it  was  the  duty  of  the 
other,  or  that  he  had  supposed  the  other  had,  or  would,  perform  it." 


TITLE  XI. 

Mining  Corporations. 

§  584.     Eemoval  of  the  principal  office  provided  for.     [Repealed.] 

§  585.     Directors  to   file   certificates   of  proceedings   in   offices   of   county 

clerks  and  secretary  of  state.     [Repealed.] 
§  586.     Transfer    agencies. 
§  587.     Stock  issued  at  transfer  agencies. 
§  587a.  Consolidation  of  mining  corporations. 
§  588.     Books  and  balance-sheets  to  be  kept  by  secretary.     Stockholders' 

right  to  inspect. 
§  589.     Right  of  stockholders  to  visit  mine  with  expert. 
§  590.     Liability  of  presidents  and  directors. 

Legislation  Title  XI.  1.  Enacted  March  21,  1872,  and  then  con- 
tained §§584-587. 

2.  Repealed  and  a  new  title  substituted  by  Stats.  1905,  p.  584,  the 
title  of  the  act  reading,  "An  Act  to  repeal  Title  XI  of  Part  IV  of 
Division  First  of  the  Civil  Code  and  each  and  every  section  of  said 


271  MINING   CORPORATIONS.  §  586 

title,  and  to  substitute  a  new  Title  XI  to  take  the  place  thereof  in  said 
code,  relating  to  mining  corporations";  the  code  commissioner  saying 
in  his  note  to  §§  586-587a,  "Eevises  the  whole  of  Title  XI  of  Part  IV 
of  Division  First  of  the  Civil  Code,  respecting  mining  corporations. 
§§  586  and  587  are  not  changed,  but  simply  re-enacted.  §  587a  con- 
tains substantially  the  matter  in  the  old  §  361,  the  word  'corporations' 
being  substituted  for  'companies,'  and  the  words  'and  to  cause  notice 
of  the  time  and  place  fixed  for  such  meeting  to  be  mailed  to  each  stock- 
holder of  each  of  such  corporations  at  his  last  known  place  of  resi- 
dence or  business  at  least  ten  days  before  the  time  fixed  for  such 
meeting'  being  inserted.  The  matter  added  is  designed  to  provide  the 
mode  in  which  notices  may  be  served  on  stockholders";  and  in  his  note 
to  §§  588-590,  "The  statute  of  1873-74,  page  866,  as  amended  in  1880, 
page  134,  and  1897,  page  38,  is  codified  in  the  above  sections,  the  only 
substantial  change  made  being  in  the  omission  of  the  proviso  in  §  1  of 
the  amendatory  act  of  1897,  limiting  its  provisions  to  corporations 
'whose  stock  is  listed  and  offered  for  sale  at  public  exchange.'  The 
provisions  of  the  part  of  the  section  omitted  are  unconstitutional.  (See 
Johnston  v.  Tautphaus,  127  Cal.  604.)"  See  post,  tit.  "Legislation," 
under  the  respective  sections  of  the  title. 

§  584.  Removal  of  the  principal  office  provided  for.  [Re- 
pealed 1876;  Code  Amdts.  1875-76,  p.  73.] 

Legislation  §  584.     1.  Enacted  March  21,  1872. 

2.  Eepealed  by  Code  Amdts.  1875-76,  p.  73.  By  Stats.  1901,  p.  377, 
another  section  numbered  584  was  added  by  the  code  commissioners, 
the  side-title  of  which  read  "Mining  corporations;  purchase,  sale,  lease, 
or  mortgage  must  be  ratified  by  two  thirds  of  the  stock";  unconstitu- 
tional.    See  note,  §  4,  ante. 

§  585.  Directors  to  file  certificates  of  proceedings  in  offices 
of  county  clerks  and  secretary  of  state.  [Repealed  1905 ; 
Stats.  1905,  p.  584.] 

Legislation  §  585.     1.  Enacted  March  21,  1872. 

2.  Repealed  by  Stats.  1905,  p.  584,  in  repealing  Title  XI.  See  ante, 
Legislation  Title  XI.  By  Stats.  1901,  p.  377,  another  section  numbered 
585  was  added  by  the  code  commissioners,  the  side-title  of  which  read, 
"Stock  must  stand  on  the  books  in  the  names  of  the  real  owners  or 
their  trustees";  unconstitutional.     See  note,  §  4,  ante. 

§  586.  Transfer  agencies.  Any  corporation  organized  in 
this  state  for  the  purpose  of  mining  or  carrying  on  mining 
operations  in  or  without  this  state,  may  establish  and  maintain 
agencies  in  other  states  of  the  United  States,  for  the  transfer 
and  issuing  of  their  stock ;  and  a  transfer  or  issue  of  the  same 
at  any  such  transfer  agency,  in  accordance  with  the  provisions 
of  its  by-laws,  is  valid  and  binding  as  fully  and  effectually 
for  all  purposes  as  if  made  upon  the  books  of  such  corporation 
at  its  principal  office  within  this  state.  The  agencies  must  be 
governed  by  the  by-laws  and  the  directors  of  the  corporation. 
Act  for  protection  of  miners:   See  post,  Appendix,  tit.  "Mines  and 

Mining." 

Legislation  §  586.     1.  Enacted  March  21,  1872  (based  on  Stats.  1863- 

64,  p.  429,  §§  1,  3.) 


§  587a  -  CIVIL  CODE.  272 

2.  Eepealed  by  Stats.  1905,  p.  584,  in  repealing  Title  XI,  and  re- 
enacted,  by  the  same  act,  in  substituting  a  new  Title  XI,  in  the  exact 
language  of  the  original  code  section.  See  ante.  Legislation  Title  XI, 
especially  the  code  commissioner's  note. 

§  587.  Stock  issued  at  transfer  agencies.  All  stock  of  any 
such  corporation,  issued  at  a  transfer  agency,  must  be  signed 
by  the  president  and  secretary  of  the  corporation,  and  counter- 
signed at  the  time  of  its  issue  by  the  agent  having  charge  of 
the  transfer  agency.  No  stock  must  be  issued  at  a  transfer 
agency  unless  the  certificate  of  stock,  in  lieu  of  which  the  same 
is  issued,  is  at  the  time  surrendered  for  cancellation. 

Legislation  §  587.  1.  Enacted  March  21,  1872;  based  on  Stats.  1863- 
64,  p.  429,  §  2. 

2.  Repealed  by  Stats.  1905,  p.  584,  in  repealing  Title  XI,  and  re- 
enacted,  by  the  same  act,  in  substituting  a  new  Title  XI,  in  the  exact 
language  of  the  original  code  section.  See  ante.  Legislation  Title  XI, 
especially  the  code  commissioner's  note. 

§  587a.  Consolidation  of  mining-  corporations.  It  is  lawful 
for  two  or  more  corporations  formed,  or  that  may  hereafter 
be  formed,  under  the  laws  of  this  state,  for  mining  purposes, 
which  own  or  possess  mining  claims  or  lands  adjoining  each 
other,  or  lying  in  the  same  vicinity,  to  consolidate  their  capi- 
tal stock,  debts,  property,  assets,  and  franchises,  in  such  man- 
ner and  upon  such  terms  as  may  be  agreed  upon  by  the 
respective  boards  of  directors  or  trustees  of  such  corporations 
so  desiring  to  consolidate  their  interests ;  but  no  such  con- 
solidation must  take  place  without  the  written  consent  of  the 
stockholders  representing  two  thirds  of  the  capital  stock  of 
each  corporation,  and  no  such  consolidation  can,  in  any  way, 
relieve  such  corporations,  or  the  stockholders  thereof,  from 
any  and  all  just  liabilities ;  and  in  case  of  such  consolidation, 
due  notice  of  the  same  must  be  given,  by  advertising,  for  one 
month,  in  at  least  one  newspaper  in  the  county  where  the  said 
mining  property  is  situated,  if  there  is  one  published  therein, 
and  also  in  one  newspaper  published  in  the  county  where  the 
principal  place  of  business  of  any  of  said  corporation  [s]  is. 
And  when  the  consolidation  is  completed,  a  certificate  thereof, 
containing  the  manner  and  terms  of  such  consolidation,  must 
be  filed  in  the  office  of  the  count}^  clerk  of  the  county  in  which 
the  original  certificate  of  incorporation  of  each  of  said  cor- 
porations is  filed,  and  a  copy  thereof  must  be  filed  in  the  office 
of  the  secretary  of  state ;  such  certificate  must  be  signed  by  a 
majority  of  each  board  of  trustees  or  directors  of  the  original 
corporations,  and  it  is  their  duty  to  call,  within  thirty  daj^s 
after  the  filing  of  such  certificate,  a  meeting  of  the  stock- 
holders of  all  of  said  corporations  so  consolidated,  to  elect  a 
board  of  trustees  or  directors  for  the  consolidated  corpora- 


273  MINING   CORPORATIONS.  §  588 

tion,  for  the  year  thence  next  ensuing ;  and  to  cause  notice 
of  the  time  and  place  fixed  for  such  meeting  to  1  e  mailed  to 
each  stockholder  of  each  of  such  corporations  at  his  last 
known  place  of  residence  or  business  at  least  ten  days  before 
the  time  fixed  for  such  meeting.  The  said  certificate  must 
also  contain  all  the  requirements  prescribed  by  section  two 
hundred  and  ninety. 

Legislation  §  587a.     1.  Addition   by   Stats.   1901,  ji.  377;    unconstitu- 
tional.    See  note,  §  4.  ante. 

2.  Added  by  Stats.  1905,  p.  585.     See  ante,  Legislation  Title  XL 

§  588.  Books  and  balance-sheets  to  be  kept  by  secretary. 
Stockholders'  right  to  inspect.  It  is  the  duty  of  the  secretary 
of  every  corporation  formed  for  the  purpose  of  mining,  or 
conducting  mining  in  California,  whether  such  corporation  be 
formed  and  organized  under  the  laws  of  the  state  of  California 
or  of  any  other  state,  territory,  or  foreign  country,  to  keep 
at  some  place  within  the  state  of  California  an  office  and  in 
such  office  to  keep  a  complete  set  of  books  showing  all  receipts 
and  expenditures  of  such  corporation,  the  sources  of  such  re- 
ceipts, and  the  objects  of  such  expenditures,  and  also  all  trans- 
fers of  stock.  All  books  and  papers  must,  at  all  times  during 
business  hours,  be. open  to  the  inspection  of  any  stockholder. 
He  is  entitled  to  be  accompanied  by  an  expert,  and  to  make 
copies  or  extracts  from  any  such  books  or  papers.  He  may 
at  reasonable  hours,  examine  such  mining  property,  accom- 
panied by  an  expert,  take  samples,  and  make  such  other  ex- 
amination as  he  may  deem  necessary.  It  is  the  duty  of  the 
directors,  on  the  second  Monday  of  each  and  every  month,  to 
cause  to  be  made  an  itemized  account  or  balance-sheet  for  the 
previous  month,  embracing  a  full  and  complete  statement  of 
all  disbursements  and  receipts,  showing  from  Avhat  sources 
such  receipts  were  derivjed,  and  to  whom  and  for  what  object 
or  purpose  such  disbursements  or  payments  were  made ;  also 
all  indebtedness  or  liabilities  incurred  or  existing  at  the  time, 
and  for  what  the  same  were  incurred,  and  the  balance  of 
money,  if  any,  on  hand.  Such  account  or  balance-sheet  must 
be  verified  under  oath  by  the  president  and  secretary,  and 
Ijosted  in  some  conspicuous  place  in  the  office  of  the  company. 
It  is  the  duty  of  the  superintendent,  on  the  first  Monday  of 
each  month,  to  file  with  the  secretary  an  itemized  account, 
verified  under  oath,  showing  all  receipts  and  disbursements 
made  by  him  for  the  previous  month,  and  for  what  said  dis- 
bursements were  made.  Such  account  must  also  contain  a 
verified  statement  showing  the  number  of  men  employed  under 
liim,  and  for  what  purpose,  and  therate  of  wages  paid  to  each. 

Civ.  Code — 18 


§  589  CIVIL  CODE.         ^  274 

He  must  attach  to  such  account  a  full  and  complete  report, 
under  oath,  of  the  work  done  in  said  mine,  the  amount  of  ore 
extracted,  from  what  part  of  mine  taken,  the  amount  sent  to 
mill  for  reduction,  its  assay  value,  the  amount  of  bullion  re- 
ceived, the  amount  of  bullion  shipped  to  the  office  of  the  com- 
pany or  elsewhere,  and  the  amount,  if  any,  retained  by  the 
superintendent.  It  is  his  duty  to  for^vard  to  the  office  of  the 
company  a  full  report,  under  oath,  of  all  discoveries  of  ores 
or  mineral-bearing  quartz  made  in  said  mine,  whether  by 
boring,  drifting,  sinking,  or  otherwise,  together  with  the  assay 
value  thereof.  All  accounts,  reports,  and  correspondence  from 
the  superintendent  must  be  kept  in  some  conspicuous  place  in 
the  office  of  said  company,  open  to  the  inspection  of  all  stock- 
holders. 

Right  to  visit  mine:  See  post,  §§  589,  590. 

Legislation  §  588.  1.  Addition  by  Stats.  1901,  p.  378;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  585.     See  ante.  Legislation  Title  XI. 

§  589.  Right  of  stockholders  to  visit  mine  with  expert. 
Any  stockholder  of  a  corporation  formed  under  the  laws  of 
this  state  for  the  purpose  of  mining,  is  entitled  to  visit,  ac- 
companied by  his  expert,  and  examine  the  mine  or  mines 
owned  by  such  corporation,  and  every  part  thereof,  at  any 
time  he  may  see  fit;  and  when  such  stockholder  applies  to  the 
president  of  such  corporation,  he  must  immediately  cause  the 
secretary  thereof  to  issue  and  deliver  to  such  applicant  an 
order,  under  the  seal  of  the  corporation,  directed  to  the  super- 
intendent, commanding  him  to  show  and  exhibit  such  parts  of 
said  mine  or  mines  as  the  party  named  in  said  order  may  desire 
to  visit  and  examine.  It  is  the  duty  of  the  superintendent,  on 
receiving  such  order,  to  furnish  such  stockholder  every  facility 
for  making  a  full  and  complete  inspection  of  said  mine  or 
mines,  and  of  the  workings  therein,  and  to  accompany  said 
stockholder  either  in  person,  or  to  furnish  some  person  familiar 
with  said  mine  or  mines  to  accompany  him  in  his  visit  to  and 
through  such  mine  or  mines,  and  every  part  thereof.  If  the 
superintendent  fails  to  obey  such  order,  such  stockholder  is 
entitled  to  recover,  in  any  court  of  competent  jurisdiction, 
against  the  corporation,  the  sum  of  one  thousand  dollars,  and 
traveling  expenses  to  and  from  the  mine,  as  liquidated  dam- 
ages, together  with  costs  of  suit.  In  case  of  such  refusal,  it 
is  the  duty  of  the  directors  of  the  corporation  forthwith  to 
remove  the  officer  so  refusing,  and  thereafter  he  must  not  be 
employed  directly  or  indirectly  by  the  corporation,  nor  must 
any  salary  be  paid  to  him. 

Right  to  visit  mine:  See  ante,  §  588;  post,  §  590. 


275  CHAMBERS  OF  COMMERCE,  BOARDS  OF  TRADE,  ETC.         §  591 

Legislation  §  589.  1.  Addition  by  Stats.  1901,  p.  879;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  586.     See  ante,  Legislation  Title  XL 

§  590.  Liability  of  presidents  and  directors.  In  case  of  the 
refusal  or  neglect  of  the  president  to  cause  to  be  issued  by  the 
secretary  the  order  mentioned  in  section  five  hundred  and 
eighty-nine,  such  stockholder  is  entitled  to  recover  against  said 
president  the  sum  of  one  thousand  dollars  and  costs,  as  pro- 
vided in  the  last  section.  If  the  directors  fail  to  have  the  re- 
ports and  accounts  current  made  and  posted  as  provided  in 
section  five  hundred  and  eighty-eight,  they  are  liable,  either 
severally  or  jointly,  to  an  action  by  any  stockholder  complain- 
ing thereof,  and  on  proof  of  such  refusal  or  failure,  he  may 
recover  judgment  for  actual  damages  sustained  by  him,  with 
costs  of  suit.  Each  of  such  defaulting  directors  is  also  liable 
to  removal  for  such  neglect. 

Eight  to  visit  mine:  See  ante,  §§  588,  589. 

Legislation  §  590.  1.  Addition  by  Stats.  1901,  p.  379;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  587.     See  ante.  Legislation  Title  XI. 


TITLE  XIa. 

Corporations  for  the  Formation  of  Chambers  of  Commerce, 
Boards  of  Trade,  Mechanics'  Institutes,  and  Other  Kin- 
dred Associations. 

§  591.     Formation,  organization,  and  powers  of. 

§  592.     Capital  stock  and  certificates  of. 

§  592a.  Powers  which  may  be  conferred  on  the  trustees,  directors,  or  the 

executive  committee. 
§  592b.  Power  to  acquire,  sell,  possess,  and  use  property. 
§  592e.  By-laws. 

§  592d.  Power  to  levy  and  collect  assessments. 
§  592e.  Pre-existing  corporations  may  become  entitled  to   the  benefit   of 

this  title. 

Legislation  Title  XIa.  Added  by  Stats.  1905,  p.  587,  and  then  con- 
tained §§  591-592e,  the  title  of  the  act  reading,  "An  Act  to  add  a  new 
title  to  Part  IV  of  Division  First  of  the  Civil  Code  to  be  known  as 
Title  XIa,  relating  to  corporations  for  the  formation  of  chambers  of 
commerce,  boards  of  trade,  mechanics'  institutes,  and  other  kindred 
associations";  the  code  commissioner  saying,  "the  matter  contained 
in  said  chapter  being  a  codification  of  the  statute  of  1865-66,  p.  469, 
as  amended  in  1867-68,  p.  5,  and  1885,  p.  76,  respecting  chambers  of 
commerce."  See  post,  tit.  "Legislation,"  under  the  respective  sections 
of  the  title. 

§  591.  Formation,  organization,  and  powers  of.  Corpora- 
tions for  the  formation  and  organization  of  chambers  of  com- 
merce, boards  of  trade,  mechanics'  institutes,  and  other  associa- 


§  592a  CIVIL  CODE.  276 

tions  formed  for  the  extension  and  promotion  of  trade  and 
commerce,  or  the  advancement,  protection,  and  improvement 
of  the  mechanic  arts,  may  be  formed  by  twenty  or  more  per- 
sons, who  must  execute  and  file  articles  of  incorporation  as 
prescribed  in  chapter  one  of  title  one  of  part  four  of  this  code. 
Upon  receiving  from  the  secretary  of  state  a  certificate  of  the 
filing  with  him  of  a  certified  copy  of  its  articles  of  incorpora- 
tion, such  corporation  becomes  a  body  corporate,  and  by  its 
corporate  name  has  succession  for  the  period  limited  in  its 
articles,  and  power:  (1)  To  sue  and  be  sued  in  any  court;  (2) 
to  make  and  use  a  common  seal,  and  alter  it  at  pleasure;  (3)  to 
lease,  purchase,  hold,  sell,  mortgage,  convey  in  trust,  convey, 
release  from  trust  or  mortgage,  such  real  and  personal  prop- 
erty as  hereinafter  provided;  (4)  to  elect  and  appoint  such 
officers,  agents,  and  servants  as  the  business  of  the  corporation 
may  require;  and  (5)  to  make  by-laws,  not  inconsistent  with 
the  laws  of  this  state,  providing  for  the  organization  of  the 
corporation  and  the  management  of  its  affairs.  No  corpora- 
tion formed  under  this  title  must  engage  in  any  mercantile, 
commercial,  or  mechanical  business. 

Legislation  §  591.  1.  Addition  by  Stats.  1901,  p.  380;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  588.     See  ante,  Legislation  Title  XIa. 

§  592.  Capital  stock  and  certificates  of.  Every  corporation 
formed  under  this  title  may  have  a  capital  stock  and  issue 
certificates  to  represent  the  shares  thereof,  if  the  articles  of 
incorporation  contain  a  statement  of  the  amount  of  its  capital 
stock  and  the  number  of  shares  into  which  it  is  divided.  The 
rights  and  privileges  to  be  accorded  to  stockholders  are  dis- 
tinct from  those  to  be  accorded  to  members  at  large  of  the 
corporation,  and  the  obligations  to  be  imposed  upon  stock- 
holders in  the  same  relation  must  be  fixed  and  established  in 
the  by-laws  of  the  corporation. 

Legislation  §  592.  1.  Addition  by  Stats.  1901,  p.  380;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  58S.     See  ante,  Legislation  Title  XIa. 

§  592a.  Pow^ers  which  may  be  conferred  on  the  trustees, 
directors,  or  the  executive  committee.  The  corporation  may 
confer  upon  a  board  of  trustees  or  directors,  or  upon  a  l)ody 
to  be  styled  the  executive  committee  of  the  corporation,  the 
right  to  exercise  all  or  any  of  the  corporate  powers,  if  the 
articles  of  incorporation  state  that  the  right  to  exercise  the 
corporate  powers  is  to  be  confided  to  such  board  of  trustees 
or  directors  or  to  such  executive  committee,  and  the  number  of 
trustees,    directors,    or    committee,    and    the    names    of    those 


277      CHAMBERS  OF  COMMERCE,  BOARDS  OF  TRADE,  ETC.    §  592e 

selected  to  take  charge  of  the  affairs  of  the  corporation  for 
the  first  six  months. 

Legislation  §  592a.     1.  Addition   by    Slats.    1901,   p.   380;    unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  588.     See  ante,  Legislation  Title  XIa. 

§  592b.     Power  to  acquire,  sell,  possess,  and  use  property. 

Every  corporation  formed  under  this  title  may  lease,  purchase, 
have,  hold,  use,  take  possession  of.  and  enjoy  in  fee-simple,  or 
otherwise  any  personal  or  real  property  within  the  state  neces- 
sary for  the  uses  and  purposes  of  the  corporation,  and  may 
sell,  lease,  deed  in  trust,  alien,  or  dispose  of  the  same  at  its 
pleasure. 

Legislation  §  592b.     1.  Addition  by   Stats.   1901,   p.  380;   unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  589.     See  ante,  Legislation  Title  XIa. 

§  592c.  By-laws.  The  by-laws  of  any  corporation  formed 
under  this  title  without  capital  stock  must  prescribe  how  mem- 
bers of  the  corporation  shall  be  admitted  and  how  expelled, 
and  how  officers,  agents,  and  servants  shall  be  appointed. 
Such  provisions  in  the  by-laws  have  force  and  effect  as  between 
private  parties  and  the  corporation.  All  corporations  formed 
under  the  provisions  of  this  title  must  determine,  by  their 
by-laws,  the  manner  of  calling  and  conducting  their  meetings, 
the  numljcr  of  members  that  constitute  a  quorum,  the  manner 
of  levying  and  collecting  assessments,  the  officers  of  the  cor- 
poration, the  manner  of  their  election  or  appointment  and 
their  tenure  of  office,  and  may  prescribe  suitable  penalties  for 
the  violation  of  such  by-laws,  not  exceeding  in  any  case  one 
hundred  dollars  for  any  one  offense. 

Legislation  §  592c.     1.  Addition   by   Stats.   1901,   p.   381;   unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  589.     See  ante,  Legislation  Title  "XIa. 

§  592d.  Power  to  levy  and  collect  assessments.  Every  cor- 
poration formed  under  the  provisions  of  this  title  has  power 
to  levy  and  collect,  from  the  members  thereof,  for  the  purpose 
of  paying  the  proper  and  legal  expenses  of  the  corporation, 
assessments  in  such  manner  as  may  be  prescribed  by  its  by- 
laws, but  not  otherwise. 

Legislation  §  592d.     1.  Addition   by   Stats.   1901,   p.   3S1;   unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  589.     See  ante,  Legislation  Title  XIa. 

§  592e.  Pre-existing  corporations  may  become  entitled  to 
the  benefit  of  this  title.  Every  coiporation.  association,  or  in- 
stitution formed  prior  to  the  enactment  of  this  title,  for  any 
of  the  purposes  contemplated  thereby,  may,  by  a  vote  of  the 


§  593  CIVIL  CODE.  278 

majority  of  its  members  voting  at  a  meeting  called  for  that 
purpose,  become  entitled  to  the  benefit  thereof  on  filing  the 
certificate  hereinafter  required.  Notice  of  such  meeting  and 
of  its  object  must  be  published  in  a  newspaper  of  general  cir- 
culation in  the  county  in  which  the  principal  place  of  business 
of  the  corporation,  association,  or  institution  is  located,  for 
at  least  two  weeks  before  the  day  on  which  the  meeting  is  to 
be  held.  Such  certificate  must  be  signed  and  acknowledged 
by  at  least  five  members  of  the  corporation,  association,  or 
institution,  must  contain  a  list  of  the  members  who  desire  to 
become  members,  and  must  be  filed  with  the  county  clerk  of 
such  county,  and  a  copy  thereof,  certified  by  him,  must  be  filed 
with  the  secretary  pf  state.  Thereupon  such  corporation,  asso- 
ciation,- or  institution  possesses  all  the  powers  and  privileges 
conferred  by  this  title. 

Legislation  §  592e.  1.  Addition  by  Stats.  1901,  p.  381;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  589.     See  ante.  Legislation  Titlr  XTa. 


TITLE  XII. 
Religious,  Social  and  Benevolent  Corporations. 

§  593.     Corporations    not    for    profit. 

§  593.     Corporations  not  for  profit. 

§  594.     What  articles  of  incorporation  must  show.-     [Eepealed.] 

§  595.     Amount  of  real  estate  limited. 

§  596.     How  much  land  friendly,  etc.,  societies  may  hold. 

§  597.     Directors  to  make  verified  report  annually. 

§  598.     Selling,  etc.,  real  property  of  religious  corporation.     Hearing  on 
petition.     Power   to   grant   easements. 

§  599.     Nonprofit  corporations  may  provide  for  what. 

§  600.     Members  admitted   after  incorporation. 

§  601.     No  member  to  transfer  membership,  etc. 
'§  602.     Eeligious  societies  may  become  sole  corporations. 

§  602a.  Corporations  sole.     Continuous  existence. 

§  603.     Incorporation  of  religious  associations. 

§  604.     Head  ofiice,  annual  election,  etc. 

§  604a.  Formation    of    religious    corporations.     Directors.     By-laws.     At- 
testing certificate  of  incorporation.     Powers. 

§  605.     Consolidation  of  corporations  organized  for  purposes  other  than 
profit. 

§  593.  Corporations  not  for  profit.  Any  number  of  per- 
sons, associated  together  for  any  lawful  purpose  other  than 
pecuniary  profit,  may  incorporate  their  said  association,  as 
provided  in  this  title.  [Amendment  approved  1911;  Stats. 
1911,  p.  1434.] 

At  the  same   session   another   amendment   of   §  593   was  adopted,   as 
follows: 

Legislation  §  593.     See  Legislation  to  following  section. 


594,  [New.]  Incorporation  of  Religious,  Social  and  Benevo- 
lent Associations.  Any  as.sociation  of  this  state  mentioned  in  title 
twelve  of  part  four  of  division  first  of  the  Civil  Code  made  up  of 
constituent  or  member  clubs,  or  other  subordinate  bodies,  having 
a  common  periodical  or  occasional  convention  or  other  general 
assemblage,  whether  of  members  or  delegates,  and  operating  on 
the  federation  plan,  whether  state,  district  or  otheiwise,  or  hav- 
ing no  fixed  meeting  place  for  such  assemblages,  or  having 
no  fixed  office  or  principal  place  of  business  in  any  one  county 
or  city  and  county  or  for  the  meetings  of  its  agencies  or  commit- 
tees or  offlcer.s,  and  which  association  determines  such  place  or 
places  from  time  to  time  through  its  agencies  and  according  to 
its  rules  and  customs,  may  incorporate  under  the  provisions  of 
said  title  for  pui-poses  other  than  profit  and  without  capital 
stock.  The  articles  of  incorporation  upon  there  being  therein 
stated  any  of  the  matters  hereinabove  mentioned  inconsistent 
with  any  part  or  parts  of  section  two  hundred  ninety  of  the  Civil 
Code  need  not  make,  as  to  such  inconsistent  matters,  the  state- 
ments recuiired  by  said  section;  but  such  articles  shall  be  gov- 
eirned  otherwise  by  said  section  and  the  rules  of  section  six 
hundred  three  of  .said  code  as  it  now  stands,  except  that  the 
same  officers  who  acted  as  such  at  the  meeting  authorizing  the 
incorporation  shall  be  the  ones  to  execute  the  articles  and  that 
the  word  incorporation  is  to  be  deemed  substituted  for  the  word 
authority  where  the  latter  is  used  in  said  section;  ahd,  provided, 
further,  tnat  it  shall  be  immaterial  whether  such  authorization 
is  made  after  or  before  this  section  goes  into  effect  if  the  pro- 
ceedings .show  it  to  have  been  made  in  view  thereof;  and,  fur- 
ther, that  such  articles  of  incorporation  shall  set  forth  a  means 
whereby  its  office  and  constitutional  principal  place  of  business, 
which  must  be  in  this  state,  as  it  exists  from  time  to  time,  may 
be  ascertained;  or  must  state  that  same  shall  be  provided  by 
constitution  or  by-law;  and,  until  such  provision  is  otherwise 
made,  said  place  shall  be  the  place  of  busines.s,  or  if  none  such 
the  residence,  from  time  to  time,  in  this  state  of  the  chief  execu- 
tive officer  of  the  corporation.  (In  effect  90  days  from  and  after 
April    27,    1!)]7.     Stats.    1917,    Chap.    584.)  Civ.    Code,    1917. 


279         RELIGIOUS,    SOCIAL    AND   BENEVOLENT    CORPORATIONS.       §  595 

§  593.  Corporations  not  for  profit.  Any  number  of  persons 
associated  together  for  any  purpose,  where  pecuniary  profit  is 
not  their  object,  and  for  which  individuals  may  lawfully  asso- 
ciate themselves,  may,  in  accordance  with  the  rules,  regula- 
tions, or  discipline  of  the  association,  elect  directors,  the  num- 
ber thereof  to  be  not  less  than  three  or  more  than  thirty-one, 
and  may  incorporate  themselves  as  provided  iri  this  title. 
[Amendment  approved  1911;  Stats.  1911,  p.  77.] 

At  the  same  session  another  §  593  was  adopted.  See  prior  section. 
Benevolent  associations  not  insurance  companies:  Ante,  §  451. 
Legislation  §  593.  1.  Enacted  March  21,  1872  (based  on  Stats.  1869^ 
70,  pp.  46,  402,  §  1),  and  then  read:  "Any  number  of  persons  associated 
together  for  religious,  social,  benevolent,  or  other  purpose  included  in 
the  subdivisions  of  section  286,  where  pecuniary  profit  is  not  theii 
object,  may,  in  accordance  with  the  rules,  regulations,  or  discipline 
of  such  association,  elect  directors,  the  number  thereof  to  be  not  less 
than  three  nor  more  than  eleven,  and  may  incorporate  themselves  a» 
provided  in  this  part." 

2.  Amended  by  Code  Amdts.  1880,  p.  6,  changing  the  section  down 
to  the  word  "may"  to  read:  "Any  number  of  persons  associated  to- 
gether for  any  purpose  where  pecuniary  profit  is  not  their  object,  and 
for  which  individuals  may  lawfully  associate  themselves,"  the  section 
thereafter  reading  as  the  original  code  section. 

3.  Amendment  by  Stats.  1901,  p.  381;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  113,  changing  "eleven"  to  "twenty- 
one." 

5.  Amended  by  Stats.  1907,  p.  579,  substituting  (1)  "the"  for  "such" 
before  "association,"  and  (2)   "title"  for  "part"  at  end  of  section. 

6.  Amended  twice  by  Stats.  1911,  pp.  77,  1434. 

The  amendment  incorporated  in  the  text  is  the  amendment  of  1911, 
p.  77.     For  the  amendment  of  1911,  p.  1434,  see  prior  section. 

§  594.  What  articles  of  incorporation  must  show.  [Re- 
pealed 1911;  Stats.  1911,  p.  1434.] 

Legislation  §  594.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  176;  Stats.  1862,  p.  125),  and  then  read:  "In  addition  to  the 
requirements  of  section  290,  the  articles  of  incorporation  of  any  asso- 
ciation mentioned  in  the  preceding  section  must  set  forth  the  holding 
of  the  election  for  directors,  the  time  and  place  where  the  same  was 
held,  that  a  majority  of  the  members  of  such  association  were  present 
and  voted  at  such  election,  and  the  result  thereof;  which  facts  must 
be  verified  by  the  officers  conducting  the  election." 

2.  Amended  by  Stats.  1909,  p.  467. 

3.  Eepealed  by  Stats.  1911,  p.  1434. 

§  595.  Amount  of  real  estate  limited.  All  such  corpora- 
tions may  hold  all  the  property  of  the  association  owned  prior 
to  incorporation,  or  acquired  thereafter  in  any  manner,  arid 
transact  all  business  relative  thereto;  but  no  such  corporation 
must  own  or  hold  more  real  estate  than  may  be  neeessar}'^  for 
the  business  and  objects  of  the  association,  and  providing 
burial-grounds  for  its  deceased  members,  not  to  exceed  six 


§  595  CIVIL  CODE.  280 

(6)  whole  lots  in  any  city  or  town,  nor  more  than  fifty  (50) 
acres  in  the  country,  the  annual  increase,  income  or  profit, 
whereof  must  not  exceed  fifty  thousand  ($50,000)  dollars;  pro- 
vided, that  any  such  corporation  now  or  hereafter  having, 
and  having  had  continuously,  for  the  next  preceding  three  (3) 
years,  the  care,  custody,  control,  and  maintenance  each  year, 
upon  an  annual  average  of  not  less  than  one  hundred  (100) 
orphans,  half-orphans,  and  indigent  minor  children,  at  any 
one  orphan  asylum,  shall  be  entitled  and  allowed  to  own  and 
possess  any  number  of  acres  not  exceeding  one  hundred  and 
sixty  (160)  acres  of  land  in  the  country,  outside  of  any  in- 
corporated city  or  town,  and  the  annual  income  or  profit  of 
which  does  not  exceed  fifty  thousand  ($50,000)  dollars;  and 
provided  further,  that  the  limitations  herein  provided  for  shall 
not  apply  to  corporations  formed,  or  to  be  formed,  under  sec- 
tion six  hundred  and  two  (602)  of  the  Civil  Code,  when  the 
land  is  held  or  used  for  churches,  hospitals,  schools,  colleges, 
orphan  asylums,  parsonages,  or  cemetery  purposes  or  to  cor- 
porations organized  for  social  purposes  and  purposes  of  recrea- 
tion and  not  for  profit ;  and  provided  further,  that  the 
limitations  herein  provided  for  shall  not  apply  to  corporations 
organized  other  than  for  profit,  when  the  land  is  timber-land, 
and  not  exceeding  one  hundred  and  sixty  (160)  acres  in  extent, 
and  is  held  or  used  for  the  purposes  of  the  organizations,  in 
which  case  said  land  shall  be  subject  to  all  laws  regulating  the 
preservation  of  forests.  [Amendment  approved  1905;  Stats. 
1905,  p.  18.] 

Legislation  §  595.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  182;  Stats.  1862,  p.  12.5),  and  then  read  the  same  as  all  the 
amendments,  and  as  at  present,  down  to  the  words  "city  or  town,"  the 
section  thereafter  reading,  "nor  more  than  twenty  ['twenty'  changed 
to  'fifty'  in  1903]  acres  in  the  country,  the  annual  increase  or  income 
whereof  must  not  exceed  fifty  thousand  dollars." 

2.  Amended  by  Stats.  1881,  p.  9,  the  section  reading  the  same  as  the 
original  code  section  down  to  the  words  "twenty  acres  in  the  country," 
reading  thereafter,  "the  annual  increase,  income,  or  profit  whereof 
must  not  exceed  fifty  thousand  dollars;  provided,  that  anj-  such  cor- 
poration now,  or  hereafter  having,  and  having  had  continuously  for 
the  next  preceding  three  years,  the  care,  custody^  control,  and  main- 
tenance each  year,  upon  an  annual  average  of  not  less  than  one  hun- 
dred orphans,  half-orphans,  and  indigent  minor  children  at  any  one 
orphan  asylum,  shall  be  entitled  and  allowed  to  own  and  possess  any 
number  of  acres,  not  exceeding  one  hundred  and  sixty  acres  of  land 
in  the  country,  outside  of  any  incorporated  city  or  town,  and  the 
annual  income  or  profit  of  which  does  not  exceed  fifty  thousand  dollars; 
"and  provided  further,  such  orphan  asylum  shall  be  situated  on  such 
lands;  and  provided  further,  that  the  limitations  herein  provided  for 
shall  not  apply  to  corporations  formed,  or  to  be  formed,  under  section 
six  hundred  and  two  of  the  Civil  Code,  when  the  land  is  held  or  used 
for  churches,  hospitals,  schools,  colleges,  orphan  asylums,  parsonages. 
or  cemetery  purposes." 


281         RELIGIOUS,    SOCIAL    AND    BENEVOLENT    CORPORATIONS.       §  597 

3.  Amended  by  Stats.  1899,  p.  10,  adding,  at  end  of  section  as 
amended  in  1881,  quoted  supra,  "or  to  corporations  organized  other 
than  for  profit,  when  the  land  is  timber  land,  and  not  exceeding  one 
hundred  and  sixtj'  acres  in  extent,  and  is  held  or  used  for  the  pur- 
poses of  the  organizations,  in  which  case  said  land  shall  be  subject 
to  all  laws  regulating  the  preservation  of  forests." 

4.  Amendment  by  Stats.  1901,  p.  382;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1903,  p.  136,  (1)  substituting  "fifty"  for 
"twenty"  before  "acres  in  the  country";  (2)  omitting  the  second  pro- 
viso of  the  amendments  of  1881  and  1899,  which  read,  "and  provided 
further,  such  orphan  asylum  shall  be  situated  on  such  lands." 

6.  Amended  by  Stats.  1905,  p.  18;  the  changes  being  the  addition  (1) 
of  the  explanatory  Arabic  numerals  in  parentheses,  and  (2)  after  "cor- 
porations organized,"  the  words  "for  social  purposes  and  purposes  of 
recreation  and  not  for  profit;  and  provided  further,  that  the  limita- 
tions herein  provided  for  shall  not  apply  to  corporations  organized." 
before  "other  than  for  profit." 

§  596.    How  much  land  friendly,  etc.,  societies  may  hold. 

In  addition  to  that  provided  for  in  the  preceding  section, 
friendly  societies  and  pioneer  associations  may  hold  such  real 
estate  as  may  be  necessary  to  carry  out  their  charitable  pur- 
poses, or  for  the  establishment  and  endowment  of  institutions 
of  learning  connected  therewith.  In  case  any  such  corporation 
is  the  owner,  by  donation  or  purchase,  of  more  lands  than 
herein  or  in  preceding  section  provided  for,  such  surplus  must 
be  sold  and  conveyed  by  the  corporation  within  five  years 
after  its  acquisition.  Such  sale  may  be  made  without  the 
order  or  decree  of  the  superior  court  as  hereinafter  provided. 
[Amendment  approved.  1880 ;  Code  Amdts.  1880,  p.  6.] 

Legislation  §  596.  1.  Enacted  March  21,  1872  (based  on  Stats.  1862, 
p.  125;  Stats.  1863,  pp.  34,  624),  (1)  the  first  sentence  then  reading, 
"In  addition  to  that  provided  for  in  the  preceding  section^  Masons,  Odd 
Fellows,  and  Pioneer  incorporated  associations  may  hold  such'  real 
estate  as  may  be  necessary  to  carry  out  their  charitable  purposes,  or 
for  the  establishment  and  endowment  of  institutions  of  learning  con- 
nected therewith";  (2)  the  remainder  of  the  section  reading  as  the 
amendments  of  1877-78  and  1880,  except  that  (a)  in  sentence  begin- 
ning "In  case,"  it  had  the  word  "the"  before  "preceding  section" 
(omitted  in  1877-78),  and  (b)  in  final  sentence,  "district  court"  instead 
of  "superior  court"  (changed  in  1880). 

2.  Amended  by  Code  Amdts.  1877-78,  p.  84,  (1)  in  first  sentence,  in- 
serting "Good  Templars"  after  "Odd  Fellows,"  and  (2)  in  sentence 
beginning  "In  case,"  omitting  "the"  before  "preceding  section." 

3.  Amended  by  Code  Amdts.  1880,  p.  6. 

§597.  Directors  to  make  verified  report  annually.  The 
directors  must  annually  make  a  full  report  of  all  property, 
real  and  personal,  held  in  trust  for  their  corporation  by  them, 
and  of  the  condition  thereof,  to  the  members  of  the  association 
for  which  they  are  acting. 

Legislation  §  597.     1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 

p.  374,  §  183. 


§  598  CIVIL  CODE.  282 

2.  Amendment  by  Stats.   1901,   p.   382;   unconstitutional.     See   note, 
§  4,  ante. 

§  598,     Selling-,  etc.,  real  property  of  religious  corporations. 
Hearing'  on  petition.     Power  to  grant  easements.     Before  sell- 
ing, mortgaging-,  aliening,  encumbering  or  granting  its  real 
property,  or  any  part  thereof,  except  a  burial  plot  situated  in 
grounds  dedicated  to  burial  purposes,  a  corporation  organized 
under  this  title  must  first  make  it  appear  that  the  same  is  for 
its  interest  to  the  satisfaction  of  the  superior  court  of  the  county 
Avherein  said  real  property  is  situated.     To  this  end  said  cor- 
poration shall  file  with  the  clerk  of  said  court  a  verified  pe- 
tition,   describing   the   property    affected,    showing   that   the 
selling,  mortgaging,  aliening,  encumbering,  or  granting  of  said 
property  is  for  its  interest,  and  praying  that  leave  therefor  be 
granted.     Thereupon  the  court  shall  make  an  order  reciting 
that  said  leave  has  been  prayed  for,  describing  the  property 
affected,  and  fixing  a  time  and  place  for  the  hearing  of  the 
petition.     Thereafter  copies  of  said  order  shall  be  kept  posted 
conspicuously  for  a  period  of  ten  days  at  the  f olloAving  places : 
(1)  on  the  real  property  affected;  (2)  at  the  place  where  the 
court  is  held;   (3)   at  any  other  public  place  in  said  county 
where  the  said  court  shall  direct.     At  the  time  set  for  the 
hearing  the  court  must  require  proof  that  said  notice  has  been 
faithfully  given;  and  any  member  may  appear  and  oppose  or 
support  the  granting  of  the  leave.     If  satisfied  that  it  is  for 
the  interest  of  said  corporation,  said  court  shall  thereupon 
grant  said  leave,  and  may  authorize  the  said  corporation  to 
sell  and  convey  its  said  property  and  to  incur  indebtedness 
and  secure  the  same  by  deed  of  trust  or  mortgage  upon  its 
said  real  property ;  provided,  however,  that  any  such  corpo- 
ration shall  have  the  power  by  resolution,  entered  upon  the 
minutes  of  such  corporation,  to  grant  easements  to  municipal 
or  other  public  corporations  for  public  street,  alley  or  high- 
way purposes  and  rights  of  way  for  publicly  owned  utilities 
and  public  uses,  upon  the  approval  of  the  superior  court  of 
the  county  wherein  the  real  property  of  such  corporation  is 
situated,  obtained  in  the  same  manner  as  herein  provided  for 
the  selling,  mortgaging,  aliening  or  encumbering  of  its  said 
property.      [Amendment  approved  1913;  Stats.  1913,  p.  565.] 
Legislation  §  598.     1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  347,  §  179;  Stats.  1859,  p.  87,  §  1),  and  then  read:  "Corporations  or- 
ganized by  members  of  associations  mentioned  in  section  593  may  mort- 
gage or  sell  the  necessary  real  estate  held  by  them,  on  complying  with 
the  following  provisions:  1.  The  directors  must,  by  resolution,  declare 
such  disposition  of  the  real  estate  necessary,  or  for  the  best  interests 
of  the  corporation,  in  the  prosecution  of  the  purposes  of  the  associa- 
tion, setting  forth  the  grounds  therefor;  2.  The  directors  must  petition 


283         RELIGIOUS,   SOCIAL    AND    BENEVOLENT    CORPORATIONS.       §  598 

the  district  court  of  the  county  in  which  the  real  estate  is  situated, 
for  the  mortgage  or  sale  thereof,  setting  forth  the  resolution  upon 
which  the  petition  is  based;  3.  The  judge  of  the  court,  if  it  appear  that 
it  is  a  case  in  which  such  order  should  be  made,  must  direct  publica- 
tion of  summons  to  all  persons  interested  in  the  property  to  appear 
before  the  court  and  show  cause  why  such  order  or  decree  should  not 
be  made.  The  notice  must  be  published  in  a  newspaper  published 
in  the  city  or  county  where  the  property  is  situated,  for  such  time 
as  the  judge  may  direct;  in  place  of  the  publication,  personal  notice 
may  be  served  on  all  persons  interested  in  the  real  estate;  4.  At  any 
time  before  the  day  set  for  hearing  the  petition  any  person  interested 
in  the  property  may  present  objections  or  answer  to  the  petition,  rais- 
ing either  question  of  law  or  fact,  and  the  same  must  be  tried  by  the 
court  as  other  cases  are  tried;  5.  If  on  the  hearing  at  the  trial  it  is 
found  by  the  court  that  the  mortgage  or  sale  of  the  property  is  unnec- 
essary, or  that  the  best  interests  of  the  corporation  will  not  be  sub- 
served or  advanced  thereby,  the  order  and  decree  must  be  denied;  if 
it  is  found  necessary,  or  that  the  best  interests  of  the  corporation  will 
be  subserved  or  advanced  thereby,  the  petition  must  be  granted;  6. 
The  court  may,  if  considered  necessary,  direct  an  appraisement  of  the 
property  to  be  first  made,  and  appoint  disinterested  appraisers  there- 
for, fix  their  compensation  and  the  time  for  them  to  report;  and  direct 
the  making  and  execution  of  the  mortgage  or  deed  and  all  necessary 
accompanying  notes,  bonds,  or  contracts,  and  to  what  purpose  the 
proceeds  must  be  applied  by  the  corporation  as  best  comports  with  its 
objects." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  216,  to  read:  "Corporations 
of  the  character  mentioned  in  section  five  hundred  and  ninety-three, 
may  mortgage  or  sell  real  property  held  by  them,  upon  obtaining  an 
order  for  that  purpose  from  the  district  court  held  in  the  county  in 
which  the  property  is  situated.  Before  making  the  order,  proof  must 
be  made  to  the  satisfaction  of  the  court  that  notice  of  the  applica- 
tion for  leave  to  mortgage  or  sell  has  been  given  by  publication  in 
such  manner  and  for  such  time  as  the  court  or  judge  has  directed,  and 
that  it  is  to  the  interest  of  [the]  corporation  that  leave  should  be 
granted  as  prayed  for.  The  application  must  be  made  by  petition,  and 
any  member  of  the  corporation  may  oppose  the  granting  of  the  order, 
by  aflSdavit  or  otherwise." 

3.  Amended  by  Code  Amdts.  1880,  p.  6,  in  first  sentence,  substituting 
"superior  court"  for  "district  court." 

4.  Amended  by  Stats.  1889,  p.  230  to  read  as  follows:  "Corporations 
of  the  character  mentioned  in  section  five  hundred  and  ninety-three 
may  mortgage  or  sell  real  property  held  by  them  upon  obtaining  an 
order  for  that  purpose  from  the  superior  court  held  in  the  county  in 
which  the  property  is  situated.  Before  making  the  order  proof  must 
be  made  to  the  satisfaction  of  the  court  that  application  for  leave  to 
mortgage  or  sell  has  been  given  by  publication  in  such  manner  and  for 
such  time  as  the  court  or  judge  has  directed,  and  that  it  is  to  the  in- 
terest of  the  corporation  that  leave  should  be  granted  as  prayed  for. 
The  application  must  be  made  by  petition,  and  any  member  of  the 
corporation  may  oppose  the  granting  of  the  order  by  aflSdavit  or  other- 
wise. But  nothing  herein  contained  shall  prohibit  or  prevent  the 
trustees  or  directors  of  such  corporation,  under  such  rules  and  regula- 
tions as  they  may  adopt,  from  disposing  of  burial  plots  situated  in 
grounds  of  such  corporation  dedicated  for  burial  purposes  without  mak- 
ing such  application  to  or  obtaining  any  order  from  court." 

5.  Amended  by  Stats.  1891,  p.  179,  to  read:  "Corporations  of  the 
character    mentioned 'in    section    five   hundred    and    ninety-three   may 


§  599  CIVIL  CODE.  284 

mortgage  or  sell  the  real  property  held  by  them,  and  may  secure  the 
payment  of  indebtedness  by  deed  of  trust  or  mortgage  upon  their  real 
property,  upon  obtaining  an  order  for  that  purpose  from  the  superior 
court  held  in  the  county  in  which  the  property  is  situated.  The  cor- 
porations above  mentioned  may  also  issue  bonds,  payable  at  any  time 
within  twenty  years,  as  evidence  of  the  indebtedness  secured  by  mort- 
gage or  deed  of  trust.  Before  making  the  order,  proof  must  be  made 
to  the  satisfaction  of  the  court  that  notice  of  the  application  for  leave 
to  sell  or  mortgage  or  execute  a  deed  of  trust  has  been  given,  by  publi- 
cation in  sucb  manner  and  for  such  time  as  the  court  or  the  judge  has 
directed,  and  that  it  is  to  the  interest  of  the  corporation  that  leave 
should  be  granted  as  prayed  for.  The  application  must  be  made  by 
petition,  and  any  member  of  the  corporation  may  oppose  the  granting 
of  the  order,  by  affidavit  or  otherwise.  But  nothing  herein  contained 
shall  prohibit  or  prevent  the  trustees  or  directors  of  such  corporation, 
under  such  rules  and  regulations  as  they  may  adopt,  from  disposing 
of  burial-plats  situated  in  grounds  of  such  corporation  dedicated  for 
burial  purposes,  without  making  such  application  to  or  obtaining  an 
order  from  court." 

6.  Amended  by  Stats.  1911,  p.  1434,  to  read:  "Before  selling,  mort- 
gaging, aliening,  encumbering  or  granting  its  real  property,  or  any 
part  thereof,  except  a  burial  plot  situated  in  grounds  dedicated  to 
burial  purposes,  a  corporation  organized  under  this  title  must  first 
make  it  appear  that  the  same  is  for  its  interest,  to  the  satisfaction  of 
the  superior  court  of  the  county  wherein,  as  set  forth  in  its  articles  of 
incorporation,  its  principal  business  is  to  be  transacted.  To  this  end 
said  corporation  shall  file  with  the  clerk  of  said  court  a  verified  peti- 
tion, describing  the  property  affected,  showing  that  the  selling,  mort- 
gaging, aliening,  encumbering  or  granting  of  said  property  is  for  its 
interest,  and  praying  that  leave  therefor  be  granted.  Thereupon  the 
court  shall  make  an  order,  reciting  that  said  leave  has  been  prayed  for, 
describing  the  property  affected,  and  fixing  a  time  and  place  for  the 
hearing  of  the  petition.  Thereafter  certified  copies  of  said  order  shall 
be  posted  conspicuously  for  a  period  of  ten  days  at  the  following  places: 
(1)  On  the  real  property  affected;  (2)  at  the  head  office  of  the  corpora- 
tion, and  (3)  at  a  place  where  the  members  of  the  corporation  congre- 
gate. At  the  time  set  for  the  hearing  the  court  must  require  proof 
that  said  notice  has  been  faithfully  given;  and  any  member  may  ap- 
pear and  oppose  or  support  the  granting  of  the  leave.  If  satisfied  that 
it  is  for  the  interest  of  said  corporation,  said  court  shall  thereupon 
grant  said  leave." 

7.  Amended  by  Stats.  1913,  p.  565. 

§  599.  Nonprofit  corporations  may  provide  for  what.  Cor- 
porations now  organized  or  that  may  hereafter  be  organized 
for  purposes  other  than  profit,  may,  either  in  their  by-laws, 
ordinances,  constitutions,  or  articles  of  incorporation,  provide 
for: 

(1)  Qualification  of  members.  The  qualification  of  mem- 
bers, mode  of  election  or  appointment,  and  terms  of  admission 
to  membership ; 

(2)  Fees.  The  fees  of  admission  and  dues  to  be  paid  to 
their  treasurer  by  members; 

(3)  Quorum.  Election  of  directors.  The  number  of  per- 
sons that   shall   constitute   a  quorum   at,  any  meeting  of  the 


285         RELIGIOUS,    SOCIAL    AND    BENEVOLENT    CORPORATIONS.       §  599 

members  of  the  corporation,  and  the  number  of  directors  who 
shall  constitute  a  quorum  at  any  meeting  of  the  board  of  di- 
rectors, and  the  election  of  directors  or  other  officers  of  the 
corporation  by  a  meeting  of  the  members  of  the  corporation 
so  constituted,  or  by  a  meeting  of  the  board  of  directors  so 
constituted,  and  the  appointment  or  selection  of  directors, 
or  other  officers,  in  any  manner ;  and  if  any  corporation  now- 
organized,  or  that  may  hereafter  be  organized,  for  purposes 
other  than  profit,  does  in  its  by-laws,  ordinances,  constitutions 
or  articles  of  incorporation,  provide  for  an  election  of  di- 
rectors or  other  officers  of  the  corporation  by  a  meeting  of  the 
members  of  the  corporation  so  constituted,  or  by  a  meeting 
of  the  board  of  directors  so  constituted,  or  for  the  appoint- 
ment or  selection  of  directors  or  other  officers,  in  any  manner, 
then  such  election  or  appointment  or  selection  shall  be  as 
valid  as  if  made  at  an  election  at  which  a  majority  of  the 
members  of  the  corporation  were  present  and  voted ; 

(4)  Manner  of  voting".  The  manner  of  voting  by  the  mem- 
bers of  the  corporation,  which  may  be  by  ballot  in  the  manner 
provided  for  by  section  three  hundred  twenty-one  b  of  this 
code,  or  in  any  other  manner  provided  for  by  the  by-laws, 
ordinances,  constitutions,  or  articles  of  incorporation  of  any 
corporation  now  organized,  or  that  may  hereafter  be  or- 
ganized, for  purposes  other  than  profit ; 

(5)  Expulsion  of  members.  The  expulsion  and  suspension 
of  members  for  misconduct  or  nonpayment  of  dues,  also  for 
restoration  to  membership ; 

(6)  Organization  of  board,  etc.  A  special  method  of  or- 
ganizing the  board  of  directors  and  a  special  method  of  in- 
creasing or  diminishing  the  number  of  directors  within  the 
limits  as  to  number  prescribed  by  section  five  hundred  ninety- 
three  of  this  code ; 

(7)  Indebtedness.  Contracting,  securing  and  limiting  the 
amount  of  their  indebtedness ; 

(8)  Rules,  regulations,  discipline.  That  the  rules,  regula- 
tions or  discipline,  for  the  time  being,  of  any  society,  religious 
denomination,  church,  or  other  corporation,  now  organized  or 
which  may  hereafter  be  organized  for  purposes  other  than 
profit,  shall  always  be  a  part  of  their  by-laws,  ordinances,  con- 
stitutions or  articles  of  incorporation; 

(9)  Further  regulations.  Other  regulations  not  repugnant 
to  the  constitution  or  laws  of  the  state  and  consonant  with 
the  objects  of  the  corporation.  [Amendment  approved  1915; 
Stats.  1915,  p.  302.] 

Legislation  §  599.     1.  Enacted  March  21,  1872  (based  on  Stats.  1863, 
p.  624,  §§8,  9),  and  then  read:   "Corporations  organized  for  purposes 


§  601  CIVIL  CODE.  286 

other  than  for  profit  may  in  their  by-laws,  ordinances,  constitutions,  or 
articles  of  incorporation,  in  addition  to  the  provisions  in  title  I  of  this 
part,  provide  for:  1.  The  qualifications  of  members,  mode  of  election, 
and  terms  of  admission  to  membership;  2.  The  fees  of  admission  and 
dues  to  be  paid  to  their  treasury  by  members;  3.  The  expulsion  and 
suspension  of  members  for  misconduct  or  non-payment  of  dues;  also, 
for  restoration  to  membership;  4.  Contracting,  securing,  paying,  and 
limiting  the  amount  of  their  indebtedness;  5.  Other  regulations,  not 
repugnant  to  the  constitution  or  laws  of  the  state,  and  consonant  with 
the  objects  of  the  corporation." 

2.  Amended  by  Stats.  1885,  p.  136,  (1)  in  subd.  1,  changing  "quali- 
fications" to  "qualification";  (2)  adding  a  new  subd.  3,  which  read, 
"3.  The  number  of  members  that  shall  constitute  a  quorum  at  any 
meeting  of  the  corporation,  and  that  election  of  officers  of  the  corpora- 
tion by  a  meeting  so  constituted  shall  be  as  valid  as  if  there  had  been 
a  majority  of  the  members  present  thereat  and  voting";  (3)  subds.  3, 
4,  and  5  renumbered  subds.  4,  5,  and  6,  respectively. 

3.  Amended  by  Stats.  1897,  p.  246,  to  read:  "Corporations  now  or- 
ganized or  that  may  hereafter  be  organized  for  purposes  other  than 
profit,  may,  either  in  their  by-laws,  ordinances,  constitutions,  or  articles 
of  incorporation,  provide  for:  1.  The  qualification  of  members,  mode 
of  election  or  appointment,  and  terms  of  admission  to  membership; 
2.  The  fees  of  admission  and  dues  to  be  paid  to  their  treasury  by 
members;  3.  The  number  of  persons  that  shall  constitute  a  quorum 
at  any  meeting  of  the  corporation,  and  that  an  election  of  officers  of 
the  corporation  by  a  meeting  so  constituted,  or  the  appointment  or 
selection  of  such  officers,  or  any  of  them,  in  any  manner  required  b}^ 
the  rules,  regulations,  or  discipline  of  any  specified  religious  denom- 
ination, society,  or  church,  shall  be  as  valid  as  if  made  at  an  election 
at  which  a  majority  of  the  members  of  the  corporation  were  present 
and  voted;  4.  The  expulsion  and  suspension  of  members  for  miscon- 
duct or  non-payment  of  dues,  also  for  restoration  to  membership;  5. 
A  special  method  of  organizing  the  board  of  directors,  and  a  special 
method  of  increasing  or  diminishing  the  number  of  directors  within 
the  limits  as  to  number  prescribed  by  section  five  hundred  and  ninety- 
three  of  this  code;  6.  Contracting,  securing,  paying,  and  limiting  the 
amount  of  their  indebtedness;  7.  That  the  rules,  regulations,  or  dis- 
cipline, for  the  time  being,  of  any  specified  religious  denomination, 
society,  or  church,  shall  always  be  a  part  of  their  by-laws,  ordinances, 
constitutions,  or  articles  of  incorporation;  8.  Other  regulations  not 
repugnant  to  the  constitution  or  laws  of  the  state  and  consonant  with 
the  objects  of  the  corporation." 

4.  Amended  by  Stats.  1911,  p.  77.  The  only  change  in  the  amend- 
ment of  1911  consisted  in  the  addition  in  the  third  subdivision  of  the 
words  "and  the  number  of  directors  who  shall  constitute  a  quorum  at 
anv  meeting  of  the  board  of  directors." 

5.  Amended  by  Stats.  1915,  p.   302. 

§  600.  Members  admitted  after  incorporation.  Members 
admitted  after  incorporation  have  all  the  rights  and  privileges, 
and  are  subject  to  the  same  responsibilities,  as  members  of  the 
association  prior  thereto. 

Legislation  §  600.     Enacted   March   21,   1872;    based   on   Stats.    1863, 

p.  624,  §  7. 

§  601.  No  member  to  transfer  membership,  etc.  No  mem- 
ber, or  his  legal  representative,  mnst  dispose  of  or  transfer  any 


287         RELIGIOUS,    SOCIAL   AND    BENEVOLENT    CORPORATIONS.       §  602 

right  or  privilege  conferred  on  him  by  reason  of  his  member- 
ship of  such  corporation,  or  be  deprived  thereof,  except  as 
herein  provided. 

Legislation  §  601.     Enacted  March  21,  1872. 

§  602.     Religious   societies   may   become  sole   corporations. 

Whenever  the  rules,  regulations,  or  discipline  of  any  religious 
denomination,  society,  or  church  so  require,  for  the  adminis- 
tration of  the  temporalities  thereof,  and  the  management  of 
the  estate  and  property  thereof,  it  shall  be  lawful  for  the 
bishop,  chief  priest,  or  presiding  elder  of  such  religious  denom- 
ination, society,  or  church  to  become  a  sole  corporation,  in 
the  manner  prescribed  in  this  title,  as  nearly  as  may  be,  and 
with^all  the  powers  and  duties,  and  for  the  uses  and  purposes 
in  this  title  provided  for  religious  incorporations,  and  subject 
to  all  the  conditions,  limitations,  and  provisions  in  said  title 
prescribed.  Every  corporation  sole  shall,  however,  for  the 
purposes  of  the  trust,_have  power  to  contract  in  the  same  man- 
ner and  to  the  same  extent  as  a  natural  person,  and  may  sue 
and  be  sued,  and  may  defend,  in  all  courts  and  places,  in  all 
matters  and  proceedings  whatever,  and  shall  have  authority 
to  borrow  money,  and  give  promissory  notes  therefor,  and  to 
secure  the  payment  thereof  by  mortgage  or  other  lien  upon 
property,  real  or  personal;  to  buy,  sell,  lease,  mortgage,  and 
in  every  way  deal  in  real  and  personal  property  in  the  same 
manner  that  a  natural  person  may,  and  without  the  order  of 
any  court ;  to  receive  bequests  and  devises  for  its  own  use  or 
upon  trusts  to  the  same  extent  as  natural  persons  may ;  and 
to  appoint  attorneys  in  fact.  The  articles  of  incorporation  to 
be  filed  shall  set  forth  the  facts  authorizing  such  incorpora- 
tion, and  declare  the  manner  in  which  any  vacancy  occurring 
in  the  incumbency  of  such  bishop,  chief  priest,  or  presiding 
elder  is  required  by  the  rules,  regulations,  or  discipline  of 
such  denomination,  society,  or  church  to  be  filled,  which  state- 
ment shall  be  verified  by  affidavit,  and  for  proof  of  the  appoint- 
ment or  election  of  such  bisliop,  chief  priest,  or  presiding 
elder,  or  of  any  succeeding  incumbent  of  such  corporation, 
it  shall  be  sufficient  to  record  with  the  clerk  of  the  county  in 
which  such  bishop,  chief  priest,  or  presiding  elder  resides,  the 
original  or  a  copy  of  his  commission,  or  certificate,  or  letters 
of  election  or  appointment,  duly  attested ;  provided,  all  prop- 
erty held  by  such  bishop,  chief  priest,  or  presiding  elder  shall 
be  in  trust  for  the  use,  purpose,  and  behoof  of  his  religious 
denomination,  society,  or  church.  The  limitation  in  section 
five  hundred  and  ninety-five  shall  not  apply  to  corporations 
formed  under  this  section,  when  the  land  is  held  or  used  for 
churches,   hospitals,    schools,    colleges,    orphan   asylums,    par- 


§  602a  CIVIL  CODE.  288 

sonages,  or  cemetery  purposeis.  Any  judge  of  the  superior  court 
in  the  county  in  which  any  corporation  is  formed  under  this 
chapter  shall  at  all  times  have  access  to  the  books  of  such  incorpo- 
ration. Any  corporation  sole  heretofore  organized  and  existing 
under  the  laAvs  of  this  state  may  elect  to  continue  its  existence 
under  this  title  by  filing  a  certificate  to  that  effect,  under  its 
corporate  seal  and  the  hand  of  its  incumbent,  or  amended 
articles  of  incorporation,  in  the  form  required  by  this  title, 
and  as  prescribed  by  section  two  hundred  and  eighty-seven 
of  this  code;  and  from  and  after  the  filing  of  such  certificate 
or  amended  articles,  such  corjiorations  shall  be  entitled  to  the 
privileges  and  subject  to  the  duties,  liabilities,  and  provisions 
in  this  title  expressed.  [Amendment  approved  1897 ;  Stats. 
1897,  p.  101.] 

Legislation  §  602.  1,  Added  by  Code  Amdts.  1877-78,  p.  84,  and  dif- 
fered from  the  amendments  of  1880  and  1897,  (1)  not  having  the  word 
"so"  before  "require"  in  seeond  line  (added  in  1897);  (2)  not  con- 
taining the  sentence  beginning  "Every  corporation"  and  ending  "attor- 
neys in  fact"  (also  added  in  1897);  (3)  the  present  sentence  beginning 
"Any  judge,"  then  reading,  "The  district  judge  of  the  district  in  which 
any  corporation  is  formed  under  tliis  chapter,  shall,  at  all  times,  have 
access  to  the  books  of  such  incorporation,"  this  sentence  then  ending 
the  section,  the  final  sentence  being  added  in  1880. 

2.  Amended  by  Code  Amdts.  1880,  p.  6,  (1)  changing  the  sentence 
beginning  "Any  judge"  to  read  as  at  present;  (2)  adding  the  final 
sentence,  which  then  read,  "Any  corporation  sole,  heretofore  organized 

'  and  existing  under  the  laws  of  this  state,  may  elect  to  continue  its 
existence  under  this  act  by  filing  a  certificate  to  that  effect,  under  its 
corporate  seal  and  the  hand  of  its  incumbent,  or  amended  articles  of 
incorporation,  in  the  form  required  by  the  preceding  section,  as  pre- 
scribed by  section  two  hundred  and  eighty-seven  (2S7)  of  the  Civil 
Code;  and  from  and  after  the  filing  of  such  certificate  or  amended 
articles,  such  corporation  shall  be  entitled  to  the  privileges  and  sub- 
ject to  the  duties,  liabilities,  and  provisions  of  this  act  expressed." 

3.  Amended  by  Stats.  1897,  p.  101. 

§  602a.  Corporations  sole.  Continuous  existence.  Every 
corporation  sole  shall  have  continued  succession  and  continu- 
ous existence  during  the  term  for  w^iieh  it  is  organized  to 
exist,  notwithstanding  vacancies  in  the  incumbency  thereof, 
and  during  the  period  of  any  such  vacancy  such  corporation 
sole  shall  have  the  same  capacity  and  right  to  receive  and  take 
any  gift,  bequest,  devise  or  conversance  of  property,  either 
as  grantee  for  its  own  use,  or  as  trustee,  and  to  be  or  be  made 
the  beneficiary  of  a  trust,  as  though  there  were  no  vacancy. 
No  agency  created  by  a  corporation  sole  by  a  written  instru- 
ment which  in  express  terms  provides  that  the  agency  thereby 
created  shall  not  be  terminated  by  a  vacancy  in  the  in- 
cumbency of  such  corporation,  shall  be  terminated  or  affected 


602b.  [New.]  Authorizing  Amendment  of  Articles  of  Incor- 
poration of  Corporations  Sole,  and  Providing  the  Manner  Thereof. 
The  bishop,  chief  priest,  presiding  elder,  or  other  incumbent  of 
any  corporation  sole,  incorporated  under  the  laws  of  this  state, 
may  at  any  time  amend  the  articles  of  incorporation  of  said  cor- 
poration sole  by  changing  the  name  of  said  corporation  sole  or 
the  term  of  its  existence  or  its  territorial  jurisdiction  or  the 
manner  of  filling  any  vacancy  in  the  incumbency  thereof,  or  by 
providing  for  any  mode  of  administering  the  temporalities  and 
property  of  said  corporation  sole  during  any  vacancy  in  the 
incumbency  thereof,  or  during  the  absence  or  disability  of  the 
incumbent,  and  may  by  amended  articles  of  incorporation  make 
provision  for  any  act  or  thing  for  which  provision  is  authorized, 
in  original  articles  of  incorporation  of  corporations  sole  by  any 
law  of  this  state.  In  any  amended  articles  of  incorporation  so 
filed,  it  shall  be  competent  to  ratify  or  confirm  any  change  made 
prior  to  the  enactment  of  this  section  in  respect  of  any  matter 
which  it  is  herein  provided  may  be  the  subject  matter  of  amend- 
ment  of  articles   of  incorporation   of  a  corporation   sole. 

Amended  article  of  incorporation  of  a  corporation  sole  shall  be 
subscribed  and  verified  by  the  affidavit  of  the  incumbent  of  said 
corporation  sole,  and  shall  be  filed  in  the  office  of  the  clerk  of 
the  county  in  which  said  incumbent  resides.  (In  effect  90  days 
from  and   after  April  29,   1921.     Stats.    1921,    Chap.    124.) 

Civ.  Code,  1921. 


^ 


289         RELIGIOUS,    SOCIAL    AND    BENEVOLENT    CORPORATIONS.       §  604 

by  the  death  of  the  incumbent  of  such  corporation  or  by  a 

vacancy  in  the  incumbency  thereof,  however  caused. 

Legislation  §  602a.     Added  by  Stats.  1907,  p.  836.  ^o  o 

fc&2,^  ■  .  ' 

§  603.  Incorporation  of  religious  associations.  Any  religi- 
ous association  or  body  of  this  state,  composed  of  constituent 
churches,  parishes,  congregations,  societies  or  missions  which 
have  a  common  convention,  synod,  council,  assembly  or  con- 
ference, may  incorporate  under  the  provisions  of  this  title. 
The  articles  of  incorporation  shall  set  forth  the  proceedings 
authorizing  the  incorporation  of  such  association,  the  time  and 
place  at  which  they  were  had,  the  manner  in  which,  and  the 
terms  for  which,  the  directors  or  trustees  named  in  the  articles 
of  incorporation  were  chosen,  and  that  said  proceedings  were 
in  accordance  with  the  constitution,  by-laws,  descipline, 
canons,  rules  and  regulations  of  such  association.  The  articles 
of  incorporation  need  be  subscrilied  and  acknowledged  only 
by  the  presiding  officer,  and  clerk,  scribe,  or  secretary  of  such 
association;  but  they  must  make  affidavit,  which  shall  be  ap- 
pended to  the  articles,  that  they  subscribed  and  acknowledged 
the  articles  of  authority  of  such  association,  and  that  the 
statements  therein  contained  are  true  to  the  best  of  their 
knowledge,  information  and  belief. 

Legislation  §  603.  Added  by  Stats.  1911,  p.  1435.  The  former  sec- 
tion 603  was  added  bv  Stats.  188-5,  p.  109,  and  was  repealed  by  Stats. 
1911,  p.  1435. 

§  604.  Head  office,  annual  election,  etc.  Any  corporation 
organized  under  section  603.  or  under  section  603  or  section 
604  as  they  existed  before  this  amendment,  must  maintain  its 
head  office  at  the  place  where,  as  set  forth  in  its  articles  of 
incorporation,  its  principal  business  is  to  be  transacted ;  but 
may  provide  in  its  by-laws  that  the  annual  meeting  and  annual 
election  shall  be  held  at  such  other  place  as  may  from  time 
to  time  be  designated  by  the  directors  or  trustees.  Any  such 
corporation  may  hold  and  administer  not  only  the  common 
property,  funds,  and  money  of  such  corporation,  but  also  the 
property,  funds,  and  money  of  any  constituent  church,  parish, 
congregation,  society,  or  mission  ;  and  in  so  far  as  the  land 
held  by  any  such  corporation  is  held  or  used  for  church, 
hospital,  school,  college,  asylum,  parsonage,  or  cemetery  pur- 
poses, the  limitation  declared  in  section  595  shall  not  apply. 
[Amendment  approved  1911;  Stats.  1911,  p.  1435.] 

Legislation  §  604.     1.  Added  by  Stats.  1887,  p.  104,  the  title  of  the 

act  reading,  "An  Act  to  amend  an  act  entitled  'An  Act  to  establish  a 

Civil  Code,'  approved  March  21,  1872,  by  adding  a  new  section  thereto, 

to  be  numbered  and  known  as  section  six  hundred  and  four,  ppoviding 

Giv.  Code — 19 


§  604a  CIVIL  CODE.  290 

for  the  formation  of  certain  religious  corporations."  Section  2  of  this 
act  read:  "Sec.  2.  An  Act  entitled  'An  Act  to  amend  an  act  entitled 
"An  Act  to  establish  a  Civil  Code,"  approved  March  twenty-first, 
eighteen  hundred  and  seventy-two,  by  adding  a  new  section  thereto, 
to  be  known  as  section  six  hundred  and  four,  relating  to  the  formation 
of  religious  incorporations  for  holding  and  administering  church  prop- 
erty,' approved  March  twelfth,  eighteen  hundred  and  eighty-five,  being 
inconsistent  herewith,  is  hereby  repealed."  As  enacted  in  1887  the 
section  read:  "Any  church  or  other  religious  association  in  this  state, 
composed  of  two  or  more  constituent  parishes,  missions,  congrega- 
tions, pr  societies,  having  a  common  convention,  synod,  council,  or 
other  representative  legislative  body,  may  be  incorporated  by  such 
representative  body  under  this  part  and  subject  to  the  provisions  of 
this  title,  except  as  otherwise  provided  in  this  section.  The  repre- 
sentative body  of  such  religious  association  electing  to  incorporate  the 
same,  shall  determine  the  name  of  the  proposed  corporation,  the  pur- 
pose for  which  it  is  formed,  the  place  where  its  principal  business  is 
to  be  transacted,  the  term  for  which  it  is  to  exist,  and  the  number 
of  its  directors,  and  shall  elect  its  directors  for  the  first  year.  The 
articles  of  incorporation  need  only  be  signed  and  acknowledged  by  the 
presiding  officer  and  secretary  of  such  representative  body,  and  in 
addition  to  the  requirements  of  section  two  hundred  and  ninety,  shall 
set  forth  the  proceedings  herein  prescribed  for  said  representative 
body,  and  that  the  same  were  duly  had  in  accordance  with  the  consti- 
tution, canons,  rules,  or  regulations  governing  the  other  proceedings  of 
said  representative  body,  and  the  time  and  place  thereof.  The  direct- 
ors of  such  corporation  shall  be  elected  annually  by  the  representative 
body  of  the^association.  The  representative  body  providing  for  such 
incorporation  shall  frame  by-laws  for  the  corporation,  and  such  by-laws 
may  be  repealed  or  amended,  or  new  by-laws  may  be  adopted  by  any 
subsequent  representative  body  in  accordance  with  the  constitution, 
canons,  rules,  or  regulations  governing  the  other  proceedings  of  such 
representative  body.  Such  corporation  may  hold  and  administer  not 
only  the  common  property,  funds,  and  money  of  such  association,  but 
also  the  property,  funds,  and  money  of  any  constituent  parish,  mission, 
congregation,  or  society.  The  limitation  in  section  five  hundred  and 
ninety-five  shall  not  apply  to  corporations  formed  under  this  section 
when  the  land  is  held  or  used  for  churches,  hospitals,  schools,  colleges, 
asylums,  parsonages,  or  cemetery  purposes." 
2.  Amended  by  Stats.  1911,  p.  1435. 

§  604a.     Formation    of    religious     corporations.  Directors. 
By-laws.     Attesting     certificate     of     incorporation.     Powers. 

For  the  administration  of  the  temporalities,  and  for  the  man- 
as'ement  of  the  property  and  estate  of  any  church,  diocese, 
synod,  or  district  or  other  organization  of  such  church,  or 
for  the  administration  of  the  temporalities,  and  for  the  man- 
agement of  the  property  and  estate  of  any  religious  society 
or  order,  community,  or  other  organization  of  said  religious 
society  or  order,  any  church,  diocese,  synod,  or  other  organ- 
ization of  such  church,  or  any  community  or  other  council, 
or  other  organization  of  any  such  religious  society  or  order,  or 
of  any  community  or  other  organization  of  such  religious 
society  or  order,  may  elect  directors  and  become  an  incorpora- 


605.  Consolidation  of  Corporations  Organized  for  Purposes 
Other  Than  Profit.  Any  corporation  now  or  hereafter  organized 
for  purposes  other  than  profit  may  consolidate  with  any  other 
like  association  or  associations,  or  corporation  or  corporations, 
created  either  under  the  laws  of  the  State  of  California,  or 
under  the  laws  of  any  other  state  or  territory,  so  as  to  form 
a  new  or  consolidated  corporation,  in  such  manner  as  may  be 
authorized  by  the  respective  boards  of  directors  or  trustees  of 
such  associations  or  corporations  by  resolution  adopted  at  meet- 
ings of  the  respective  boards  called  for  that  purpose.  The  reso- 
lution to  be  adopted  by  each  of  the  respective  boards  shall  state 
the  names  of  all  the  corporations  or  associations  to  be  united  by 
the  consolidation,  the  name  of  the  state  or  territory  under  the 
laws  of  which  thoy  aru  created  or  organized,  and  the  dates  of 
their  respective  incorporation,  the  name  by  which  the  new  or 
consolidated  corporation  is  to  be  called  or  known,  the  purposes 
for  which  it  is  to  be  formed,  the  place  where  its  principal  busi- 
ness is  to  be  transacted,  the  term  for  which  it  is  to  exist,  the 
number  of  its  directors  or  trustees,  and  the  names  and  resi- 
dences of  those  who  are  appointed  to  act  as  such  for  the  first 
year,  and  shall  designate  three  or  more  persons  by  whom  articles 
of  incorporation  of  the  new  or  consolidated  corporation  shall  be 
subscribed  and  filed  in  compliance  with  this  section.  Articles  of 
incorporation  of  the  new  or  consolidated  corporation  shall  be  sub- 
scribed and  acknowledged  by  the  persons  so  designated  as  last 
aforesaid  in  the  nanner  required  by  section  two  hundred  ninety- 
two  of  this  code.  Said  articles  shall  contain  and  set  forth  ail 
the  matters  required  by  section  two  hundred  ninety  of  this 
code,  and  in  addition  thereto  there  shall  be  attached  to  said 
articles  copies  of  the  aforesaid  resolution  of  the  several  associa- 
tions or  corporations  uniting  in  the  consolidation,  certified  by 
the  respective  secretaries  of  such  associations  or  corporations 
under  the  corporate  [seal]  thereof;  and  the  said  articles  of  incor- 
poration shall  in  the  body  thereof  refer  to  the  said  resolutions 
and  to  the  certified  copies  thereof  so  attached,  and  by  such  refer- 
ence make  the  said  certified  copies  a  part  of  the  said  articles. 
The  said  articles  of  incorporation  shall  be  filed  in  the  [office  of 
the  secretary  of  state]  and  thereupon  the  secretary  of  state  shall 
issue  to  the  corporation,  over  the  great  seal  of  the  state,  a  cer- 
tificate in  manner  and  form  as  provided  by  section  two  hundred 
ninety-six  of  this  code.  From  and  after  the  filing  of  [such 
articles]  of  incorporation  with  the  secretary  of  state  the  former 
as.sociations  or  corporations  uniting  in  the  consolidation  and  com- 
prising the  component  parts  of  the  new  or  consolidated  corpora- 
tion shall  cease  to  exist;  and  the  new  or  consolidated  corporation 
shall  succeed  to  all  the  rights,  duties  and  powers  of  the  com- 
ponent associations  or  corporations,  and  .shall  be  possessed  of  all 
the    rights,    duties    and    powers    set    forth    in   its   articles    of   incor- 


poration  not  inconsistent  with  this  title,  and  shall  be  subject  to 
all  the  liabilities  and  obligations  of  the  former  component  asso- 
ciations or  corporations,  and  shall  succeed  to  and  become  vested 
with  all  the  property  thereof,  both  real  and  personal,  of  every 
name  and  nature,  and  may  make  by-laws  and  do  all  things  per- 
mitted by  this  title;  fprovided,  however,  that  no  corporation  shall 
be  authorized  to  transact  any  business  until  it  shall  have  filed 
in  the  office  of  the  county  clerk  of  the  county  In  which  Its  prin- 
cipal business  Is  to  be  transacted,  a  copy  of  Its  articles  of  Incor- 
poration certified  by  the  secretary  of  state].  (In  effect  90  days 
from   and   after  April   29,   1921.      Stats.    1921,   Chap.    132.) 

Civ.  Code,  1921. 


poration  not  inconsistent  with  this  title,  and  shall  he  suhject  to 
all  the  liahilities  and  ohligations  of  the  former  component  asso- 
ciations or  corporations,  and  shall  succeed  to  and  become  vested 
with  all  the  property  thereof,  both  real  and  personal,  of  every 
name  and  nature,  and  may  make  by-laws  and  do  all  things  per- 
mitted by  this  title:  [provided,  however,  that  no  corporation  shall 
be  authorized  to  transact  any  business  until  it  shall  have  filed 
in  the  office  of  the  county  clerk  of  the  county  in  which  its  prin- 
cipal business  is  to  be  transacted,  a  copy  of  its  articles  of  Incor- 
poration certified  by  the  secretary  of  state].  (In  effect  90  days 
from  and  after  April   29,   1921.     Stats.   1921,   Chap.   132.) 

Civ.  Code,  1921. 


60-4a.  Formation  of  Religious  Corporations;  Directors;  By- 
Laws.-  Attesting  Certificate  of  Incorporation;  Powers.  For  the 
administration  of  the  temporalities,  and  for  the  management  of 
the  property  and  estate  of  any  church,  diocese,  synod,  or  dis- 
trict or  other  organization  of  such  church,  or  for  the  adminis- 
tration of  the  temporalities,  and  for  the  management  of  the 
property  and  estate  of  any  relig-ious  society  or  order,  commu- 
nity, or  other  organization  of  said  religious  society  or  order,  any 
church,  diocese,  synod  or  other  organization  of  such  church, 
or  any  -community  or  other  council,  or  other  organization  of  any 
such  religious  society  or  order,  or  of  any  community  or  other 
organization  of  such  religious  .society  or  order,  may  elect  di- 
i-ectors  and  become  an  incorporation  in  the  manner  prescribed 
in  this  title,  and  with  all  the  powers  and  duties  and  for  the 
uses  and  purposes  in  this  title  provided  for  benevolent  or  re- 
ligious incorporations,  and  subject  to  all  the  limitations  and 
provisions  in  said  title  prescribed,  except  as  otherwise  pro- 
vided in  this  section;  provided,  that  directors  of  any  such  incor- 
poration may  be  elected  and  by-laws  for  its  government  may  be 
made  and  amended  in  accordance  with  the  constitution,  by- 
laws, discipline,  rules  and  regulations  of  such  church,  diocese, 
synod,  or  district  or  other  organization  of  such  church,  or  in 
accordance  with  the  constitution,  by-laws,  discipline,  rules  and 
1  egulations  of  .'•uch  religious  society  or  order,  or  of  any  com- 
munity, or  other  organization  of  such  religious  society  or  order, 
at  any  meeting;  and  provided,  the  certificate  of  incorporation 
and  of  the  election  of  directors  to  be  filed  shall  be  sufficiently 
attested  by  the  signatures  of  the  presiding  officer,  president,  or 
other  head,  and  acting-  secretary  of  such  church,  diocese,  synod, 
or  other  organization  of  such  church,  or  of  the  community  or 
other  council  or  other  organization  of  such  society  or  order,  and 
that  the  limitations  of  section  [five  hundred  ninety-five]  i^haAl 
not  apply  to  [such]  corporations  [heretofore  organized  or  formed, 
or  hereafter  organized]  under  this  section  when  land  is  held  or 
used  for  churches,  hospitals,  schools,  colleges,  asylums,  or  par- 
sonages. Every  [such  corporation  heretofore  organized  or  formed, 
or  hereafter  organized]  pursuant  to  the  provisions  of  this  sec- 
tion shall  have  power  to  contract  in  the  same  manner  and  to 
the  same  extent  as  a  natural  person,  and  may  sue  and  be  sued, 
and  may  defend  in  all  courts  and  places  in  all  matters  and  pro- 
ceedings whatsoever  and  shall  have  authority  to  borrow  money, 
give  promissory  notes  therefoi-,  and  secure  the  payment  there- 
of by  mortgage,  or  other  lien  upon  property  real  or  personal, 
and  may  buy,  sell,  lease,  mortgage  and  deal  in  real  and  per- 
sonal property  in  the  same  manner  that  a  natural  person  may, 
subject,  however,  to  the  provisions  of  section  [five  hundred 
ninety-eight]  of  this  code;  and  may  receive  bequests  and  de- 
vises for  its  own  use,  or  upon  trusts,  to  the  same  extent  as  a 
natural  person,  subject,  however,  to  the  provisions  of  section 
[one  thousand  three  hundred  thirteen]  of  the  Civil  Code  of  the 
.State  of  California  and  may  appoint  attorneys  in  fact.  (In  effect 
!I0    days    from    and    altei-    April    „'7.    1917.     Stats.    1917,    Chap.    .566.) 

Civ.   Code,    1917. 


291         RELIGIOUS,    SOCIAL    AND    BENEVOLENT    CORPORATIONS.       §  605 

tion  ill  the  manner  prescribed  in  this  title,  and  with  all  the 
powers  and  duties  and  for  the  uses  and  purposes  in  this  title 
provided  for  benevolent  or  religious  incorporations,  and  sub- 
ject to  all  the  limitations  and  provisions  in  said  title  pre- 
scribed, except  as  otherw^ise  provided  in  this  section ;  provided, 
that  directors  of  any  such  incorporation  may  be  elected  and 
by-laws  for  its  government  may  be  made  and  amended  in 
accordance  with  the  constitution,  by-laws,  discipline,  rules 
and  regulations  of  such  church,  diocese,  synod,  or  district  or 
other  organization  of  such  church,  or  in  accordance  with  the 
constitution,  by-laws,  discipline,  rules  and  regulations  of  such 
religious  society  or  order,  or  of  any  community,  or  other 
organization  of  such  religious  society  or  order,  at  any  meeting ; 
and  provided,  the  certificate  of  incorporation  and  of  the  elec- 
tion of  directors  to  be  filed  shall  be  sufficiently  attested  by 
the  signatures  of  the  presiding  officer,  president,  or  other  head, 
and  acting  secretary  of  such  church,  diocese,  synod,  or  other 
organization  of  such  church,  or  of  the  community  or  other 
council,  or  other  organization  of  such  society  or  order,  and 
that  the  limitations  of  section  595  shall  not  apply  to  corpora- 
tions formed  under  this  section  when  land  is  held  or  used  for 
churches,  hospitals,  schools,  colleges,  asylums,  or  parsonages. 
Every  corporation  formed  pursuant  to  the  provisions  of  this 
section  shall  have  power  to  contract  in  the  same  manner  and 
to  the  same  extent  as  a  natural  person,  and  may  sue  and  be 
sued,  and  may  defend  in  all  courts  and  places  in  all  matters 
and  proceedings  whatsoever  and  shall  have  authority  to 
borrow  money,  give  promissory  notes  therefor,  and  secure  the 
payment  thereof  by  mortgage  or  other  lien  upon  property, 
real  or  personal,  and  may  buy,  sell,  lease,  mortgage  and  deal 
in  real  and  personal  property  in  the  same  manner  that  a 
natural  person  may,  subject,  however,  to  the  provisions  of  sec- 
tion 598  of  this  code ;  and  may  receive  bequests  and  devises  for 
its  own  use,  or  upon  trusts,  to  the  same  extent  as  a  natural 
person,  subject,  however,  to  the -provisions  of  section  1313  of 
the  Civil  Code  of  the  state  of  California,  and  may  appoint  at- 
torneys in  fact. 

Legislation  §  604a.     Added  by  Stats.  1913,  p.  566. 

I')  p. 

§  605.  Consolidation  of  corporations  org-anized  for  purposes 
other  than  profit.  Any  corporation  now  or  hereafter  organ- 
ized for  purposes  other  than  profit,  may  consolidate  with  any 
other  like  association  or  associations  or  corporation  or  corpo- 
rations, created  either  under  the  laws  of  the  state  of  California, 
or  under  the  laws  of  any  other  state  or  territory,  so  as  to 
form  a  new  or  consolidated  corporation,  in  such  manner  as 
may  be  authorized  by  the  respective  boards  of  directors  or 


§  605  CIVIL  CODE.  292 

trustees  of  such  associations  or  corporations  by  resolution 
adopted  at  meetings  of  the  respective  boards  called  for  that 
purpose.  The  resolution  to  be  adopted  by  each  of  the  respec- 
tive boards  shall  state  the  names  of  all  the  corporations  or 
associations  -to  be  united  by  the  consolidation,  the  name  of 
the  state  or  territory  under  the  laws  of  which  the}^  are  created 
or  organized,  and  the  dates  of  their  respective  incorporation, 
the  name  by  which  the  new  or  consolidated  corporation  is  to 
be  called  or  known,  the  purposes  for  which  it  is  to  be  formed, 
the  place  where  its  principal  business  is  to  be  transacted,  the 
term  for  which  it  is  to  exist,  the  number  of  its  directors  or 
trustees,  and  the  names  and  residences  of  those  who  are  ap- 
pointed to  act  as  such  for  the  first  year,  and  shall  designate 
three  or  more  persons  by  whom  articles  of  incorporation  of 
the  new  or  consolidated  corporation  shall  be  subscribed  and 
filed  in  compliance  with  this  section.  Articles  of  incorpora- 
tion of  the  new  or  consolidated  corporation  shall  be  sub- 
scribed and  acknowledged  by  the  persons  so  designated  as 
last  aforesaid  in  the  manner  required  by  section  two  hundred 
and  ninety-two  of  this  code.  Said  articles  shall  contain  and 
set  forth  all  the  matters  required  hy  section  two  hundred  and 
ninety  of  this  code,  and  in  addition  thereto  there  shall  be 
attached  to  said  articles  copies  of  the  aforesaid  resolution  of 
the  several  associations  or  corporations  uniting  in  the-  con- 
solidation, certified  by  the  respective  secretaries  of  such  as- 
sociations or  corporations  under  the  corporate  seals  thereof; 
and  the  said  articles  of  incorporation  shall  in  the  body  thereof 
refer  to  the  said  resolutions  and  to  the  certified  copies  thereof 
so  attached,  and  by  such  reference  make  the  said  certified 
copies  a  part  of  the  said  articles.  The  said  articles  of  incor- 
poration shall  be  filed  in  the  office  of  the  county  clerk  of  the 
county  where  the  principal  business  of  the  new  or  consolidated 
corporation  is  to  be  transacted,  and  a  certified  copy  thereof 
in  the  office  of  the  secretary  of  state,  in  the  manner  required 
by  this  code  for  the  filing  of  original  articles  of  incorporation; 
and  thereupon  the  secretary  of  state  shall  issue  to  the  corpo- 
ration, over  the  great  seal  of  the  state,  a  certificate  in  manner 
and  form  as  provided  by  section  two  hundred  and  ninety-six 
of  this  code.  From  and  after  the  filing  of  such  certified  copy 
of  the  articles  of  incorporation  with  the  secretary  of  state 
the  former  associations  or  corporations  uniting  in  the  con- 
solidation and  comprising  the  component  parts  of  the  new  or 
consolidated  corporation  shall  cease  to  exist,  and  the  new  or 
consolidated  corporation  shall  succeed  to  all  the  rights,  duties 
and  powers  of  the  component  associations  or  corporations, 
and  shall  be  possessed  of  all  the  rights,  duties  and  powers  set 


293  SOCIETIES   TO  PREVENT   CRUELTY   TO   CHILDREN,   ETC.       §  605 

forth  in  its  articles  of  incorporation  not  inconsistent  with  this 
title,  and  shall  be  subject  to  all  the  liabilities  and  obligations 
of  the  former  component  associations  or  corporations,  and 
shall  succeed  to  and  become  vested  with  all  the  property 
thereof,  both  real  and  personal,  of  every  name  and  nature, 
and  may  make  by-laws  and  do  all  things  permitted  bv  this 
.title.     [Amendment  approved  1909 ;  Stats.  1909,  p.  1094J 

Legislation  §  605.  1.  Added  by  Stats.  1903,  p.  252,  and  then  read: 
"Any  corporation,  now  or  hereafter  organized  for  purposes  other  than 
profit,  may  consolidate  its  debts,  property,  assets  and  franchises,  with 
any  other  like  association  or  corporation,  either  created  under  the 
laws  of  the  state  of  California  or  under  the  laws  of  any  other  state 
or  territory,  in  such  manner  as  may  be  agreed  upon  by  the  respective 
boards  of  directors,  or  trustees,  of  such  corporations;  provided,  how- 
ever, that  no  such  consolidation  shall  take  place  without  the  written 
consent  of  three  fifths  (%)  of  the  boards  of  directors,  or  trustees,  of 
each  of  the  corporations  so  consolidating,  and  such  consolidation  must 
not  in  any  way  relieve  either  of  the  corporations  parties  to  it  from 
any  or  all  just  debts  or  liabilities;  provided,  further,  that  in  case  of 
.any  such  consolidation,  due  notice  of  the  same  must  be  given  by  adver- 
tisement published  for  one  month  in  at  least  one  newspaper  published 
at  the  place  of  the  principal  business  of  each  of  the  corporations  so 
consolidating.  When  their  consolidation  is  completed,  a  copy  of  the 
new  articles  of  incorporation  must  be  filed  with  the  secretary  of  state, 
in  the  same  manner  as  the  original  articles  of  incorporation  are  re- 
quired to  be  filed." 

2.  Amended  by  Stats.  1909,  p.  1094. 


TITLE  Xlla. 

Societies   for   the    Prevention    of    Cruelty    to    Children   and 

Animals. 

§  607.     Formation  of  corporations. 

§  607a.  Power  of  to  receive  and  dispose  of  property. 

§  607b.  Complaints  for  violating  any  law  relating  to  children  or  animals. 

§  607c.  Magistrates  and  police-ofl&cers  to  aid  the  corporation  and  its  of- 
ficers. 

§  607d.  Pre-existing  corporations. 

§  607e.  Compensation  of  societies  for  prevention  of  cruelty.  Urgency 
measure. 

§  607f.  Appointment  of  humane  officers.  Approval  of  judge.  "Record  of 
humane  officers."  Revocation  of  appointment.  Powers  of  offi- 
cer.    Resisting  officer.     False  certificate. 

§  607g.  Children  who  may  be  arrested  and  brought  before  a  court  or 
magistrate  for  examination. 

Legislation  Title  Xlla.  Added  by  Stats.  1905,  p.  590,  and  then  con- 
tained §§  607-607g;  the  code  commissioner  saying  in  his  note  to  §§  607, 
607a,  607b,  607c,  607d,  607e,  607f,  607g,  "The  subject-matter  of  the 
above  sections  is  taken  from  the  statute  of  1873-74,  p.  499,  as  amended 
in  1901,  page  285,  and  1903,'  p.  69 — to  prevent  cruelty  to  animals;  the 
statute  of  1875-76,  p.  830,  relating  to  the  incorporation  of  societies 
for  the  prevention  of  cruelty  to  children;  the  statute  of  1877-78,  page 


§  607c  CIVIL  CODE.  294 

812,  for  the  protection  of  children;  and  the  statute  of  1877-78,  p.  813, 
relating  to  children.  §  1  of  the  act  of  1875-76,  p.  830,  is  codified  in 
§  607.  Subd.  7  of  §  2  of  the  same  act  is  codified  in  §  607a,  and  §  3  in 
§  607b.  §  607c  is  a  codification  of  §  4  of  the  act  of  1875-76,  p.  830,  and 
§  4  of  the  act  of  1873-74,  p.  499.  §  5  of  the  act  of  1875-76,  p.  830,  is 
codified  in  §  607d;  and  §  14  of  the  act  of  1873-74,  p.  499,  as  amended 
in  1903,  p.  69,  and  §  5  of  the  act  of  1877-78,  p.  813,  are  consolidated 
and  codified  in  §  607e.  §  5  of  the  act  of  1873-74,  p.  499,  as  amended  in 
1901,  p.  285,  is  codified  in  §  607f,  an.d  §  3  of  the  act  of  1877-78,  p.  812,- 
is  codified  in  §  607g,  with  the  exception  of  subd.  5  thereof,  which  is  an 
addition  thereto,  to  cover  the  matters  referred  to  in  the  act  of  1877-78, 
p.  813."  See  post,  tit.  "Legislation,"  under  the  respective  sections  of 
the  title. 

§  607.  Formation  of  corporations.  Corporations  may  be 
formed  by  any  number  of  persons  not  less  than  five,  a  major- 
ity of  whom  must  be  citizens  and  residents  of  this  state,  tinder 
the  general  provisions  of  this  code,  for  the  purpose  of  the 
prevention  of  cruelty  to  children  or  animals,  or  both. 

Legislation  §  607,  1.  Addition  by  Stats.  1901,  p.  382;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  590.     See  ante,  Legislation  Title  Xlla. 

§  607a.    Power    of   to   receive   and    dispose    of   property. 

Every  such  corporation  may  take  and  hold,  by  gift,  purchase, 
devise,  or  bequest,  any  property,  real  or  personal,  and  dispose 
of  the  same  at  its  pleasure ;  but  it  must  not  hold  real  property 
the  annual  income  of  which  exceeds  fifty  thousand  dollars. 

Legislation  §  607a.  1.  Addition  by  Stats.  1901,  p.  382;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  590.     See  ante.  Legislation  Title  Xlla. 

§  607b.  Complaints  for  violating  any  law  relating-  to  chil- 
dren or  animals.  Any  such  corporation,  or  any  member  or 
officer  thereof,  may  prefer  a  complaint  against  any  person  or 
persons,  before  any  court  or  magistrate  having  jurisdiction, 
for  the  violation  of  any  law  relating  to  or  affecting  children  or 
animals,  and  may  aid  in  the  prosecution  of  any  such  offender 
before  such  court  or  magistrate  in  any  proceeding  taken. 

Legislation  §  607b.  1.  Addition  by  Stats.  1901,  p.  383;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  590.     See  ante.  Legislation  Title  Xlla. 

§  607c.  Magistrates  and  police-officers  to  aid  the  corpora- 
tion and  its  officers.  All  magistrates,  constables,  sheriffs,  and 
officers  of  police  must,  as  occasion  may  require,  aid  any  such 
corporation,  its  officers,  members,  and  agents,  in  the  enforce- 
ment of  all  laws  which  are  now  or  may  be  hereafter  enacted 
relating  to  or  affecting  children  or  animals. 

Legislation  §  607c.  1.  Addition  by  Stats.  1901,  p.  383;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  590.     See  ante.  Legislation  Title  Xlla. 


295  SOCIETIES  TO  PREVENT  CRUELTY  TO  CHILDREN,  ETC.       §  607e 

§  607d.  Pre-existing  corporations.  The  provisions  of  this 
title  extend  to  all  corporations  heretofore  formed  and  existing 
for  the  prevention  of  cruelty  to  children  or  animals,  but  do  not 
extend  or  apply  to  any  association,  society,  or  corporation 
which  uses  or  specifies  a  name  or  style  the  same,  or  substan- 
tially the  same,  as  that  of  any  previously  existing  society  or 
corporation  in  this  state  organized  for  a  like  purpose. 

Legislation  §  607d.     1.  Addition  by   Stats.   1901,  p.  383;   unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  590.    .See  ante,  Legislation  Title  Xlla. 

§  607e.  Compensation  of  societies  for  prevention  of  cruelty. 
Urgency  measure.  Every  society,  incorporated  and  organized 
for  the  prevention  of  cruelty  to  animals,  or  for  the  prevention 
of  cruelty  to  children,  may,  in  each  city,  or  city  and  county, 
or  county,  where  such  society  exists,  while  actively  engaged 
in  enforcing  the  provisions  of  the  laws  of  this  state,  now  or 
hereafter  enacted,  for  the  prevention  of  cruelty  to  animals  or 
children,  or  arresting,  or  prosecuting  offenders  thereunder  or 
preventing  cruelty  to  animals  or  children,  be  paid  as  compensa- 
tion therefor,  fyom  the  city  or  county,  or  city  and  county  gen- 
eral fund,  by  the  board  of  supervisors  or  other  governing  body 
thereof,  a  sum  not  exceeding  five  hundred  dollars  per  calendar 
month,  in  the  same  manner  as  other  claims  against  said  city 
or  county,  or  city  and  county,  are  paid. 

§  2.  This  act  is  hereby  declared  to  be  an  urgency  measure 
within  the  meaning  of  section  1,  article  4  of  the  constitution, 
and  is  deemed  necessary  for  the  immediate  preservation  of  the 
public  peace  and  safety.  The  following  is  a  statement  of  facts 
constituting  such  necessity :  Section  607e  of  the  Civil  Code  per- 
mits societies  organized  for  the  prevention  of  cruelty  to 
animals  to  make  arrests,  carry  on  prosecutions  and  collect  fines 
and  under  the  provisions  of  this  section  numerous  societies 
have  been  organized  and  are  being  operated  in  such  a  manner 
as  to  be  a  menace  to  the  public  peace  and  safety.  Arrests  are 
being  made  and  property  seized  without  prosecution  of  the 
charges  made,  citizens  are  being  forced  to  pay  tribute  to  out- 
law societies  to  escape  persecution,  and  peace  officers  are 
urging  the  immediate  withdrawal  of  the  right  of  these  societies 
to  collect  fines  because  of  their  greatly  increased  activity  in 
these  practices,  pending  the  time  when  this  bill  may  become 
law.      [Amendment  approved  1913;  Stats.  1913,  p.  638.] 

Payment  of  proceeds  of  liens  from  acts  done  to  prevent  cruelty  to 

animals  to  humane  societies:   See  Code  Civ.  Proc,  §  1208. 

Legislation  §  607e.     1.  Addition   by   Stats.   1901,   p.   383;   unoonstitu- 

tional.     See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  591,  and  then  read:  "All  fines,  penalties, 

and    forfeitures    imposed    and    collected  in   any   county,   or  city   and 


§  607e  CIVIL  CODE.  296 

county,  of  this  state  under  the  provisions  of  any  law  of  this  state, 
now  or  hereafter  enacted,  relating  to  or  affecting  children  or  animals, 
in  every  case  where  the  prosecution  was  instituted,  aided,  or  con- 
ducted by  any  such  corporation  or  society  now  or  hereafter  existing, 
must,  except  where  otherwise  provided,  inure  to  such  corporation  or 
society  in  aid  of  the  purposes  for  which  it  was  incorporated  or  organ- 
ized. In  addition  to  said  tines,  penalties  and  forfeitures,  every  society 
incorporated  and  organized  for  the  prevention  of  cruelty  to  animals 
may,  in  each  city,  or  city  and  county,  or  county,  where  such  society 
exists,  while  actively  engaged  in  enforcing  the  provisions  of  the  laws 
of  this  state,  now  or  hereafter  enacted,  for  the  prevention  of  cruelty 
to  animals,  or  arresting  or  prosecuting  offenders  thereunder,  or  pre- 
venting cruelty  to  animals,  be  _paid,  as  compensation  therefor,  from 
the  county,  or  city  and  county  general  fund  by  the  board  of  super- 
visors, a  sum  not  exceeding  one  hundred  and  fifty  dollars  per  month, 
m  the  same  manner  as  other  claims  against  said  county,  or  city  and 
county,  are  paid." 

3.  Amended  by  Stats.  1909,  p.  574,  and  then  read:  "All  fines,  penal- 
ties and  forfeitures  imposed  and  collected  in  any  city  or  county,  or 
city  and  county,  of  this  state  under  the  provisions  of  any  law  of  this 
state,  now  or  hereafter  enacted,  relating  to  or  affecting  children  or 
animals,  in  every  case  where  the  prosecution  was  instituted,  aided,  or 
conducted  by  any  corporation  or  society  now  or  hereafter  existing, 
incorporated  or  organized  for  the  prevention  of  cruelty  to  animals  or 
to  children  must,  except  where  otherwise  provided,  inure  to  such  cor- 
poration or  society  in  aid  of  the  purposes  for  which  it  was  incorporated 
or  organized.  In  addition  to  said  fines,  penalties  and  forfeiture,  every 
such  society  incorporated  and  organized  for  the  prevention  of  cruelty 
to  animals,  or  for  the  prevention  of  cruelty  to  children,  may,  in  each 
city,  or  city  and  county  or  county  where  such  society  exists,  while 
actively  engaged  in  enforcing  the  provisions  of  the  laws  of  this  state, 
now  or  hereafter  enacted,  for  the  prevention  of  cruelty  to  animals  or 
children,  or  arresting,  or  prosecuting  offenders  thereunder,  or  prevent- 
ing cruelty  to  animals  or  children  be  paid,  as  compensation  therefor, 
from  the  county,  or  city  and  county  general  fund  by  the  board  of  super- 
visors, a  sum  not  exceeding  one  hundred  and  fifty  dollars  per  month, 
in  the  same  manner  as  other  claims  against  said  county,  or  city  and 
countj'^,  are  paid." 

4.  Amended  by  Stats.  1911,  p.  487,  and  then  read:  "All  fines,  penal- 
ties and  forfeitures  imposed  and  collected  in  any  city  or  county,  or 
city  and  county,  of  this  state  under  the  provisions  of  any  law  of  this 
state,  now  or  hereafter  enacted,  relating  to  or  affecting  children  or 
animals,  in  every  case,  where  the  prosecution  was  instituted,  aided, 
or  conducted  by  any  corporation  or  society  now  or  hereafter  existing, 
incorporated  or  organized  for  the  prevention  of  cruelty  to  animals 
or  children  must,  except  where  otherwise  provided,  inure  to  such  cor- 
poration or  society  in  aid  of  the  purposes  for  which  it  was  incorporated 
or  organized.  In  addition  to  said  fines,  penalties  and  forfeiture,  every 
such  society  incorporated  and  organized  for  the  prevention  of  cruelty 
to  animals,  or  for  the  prevention  of  cruelty  to  children,  may,  in  each 
city,  or  city  and  county  or  county  where  such  society  exists,  while 
actively  engaged  in  enforcing  the  provisions  of  the  laws  of  this  state, 
now  or  hereafter  enacted,  for  the  prevention  of  cruelty  to  animals 
or  children,  or  arresting  or  prosecuting  offenders  thereunder,  or  pre- 
venting cruelty  to  animals  or  children,  be  paid,  as  compensation  there- 
for, from  the  city  or  county  or  city  and  county  general  fund  by  the 
board  of  supervisors  or  other  governing  bodies,  a  sum  not  exceeding 


■297  SOCIETIES  TO  PREVENT  CRUELTY  TO  CHILDREN,  ETC.       §  607f 

one  hundred  and  fifty  dollars  per  month  in  the  same  manner  as  other 
claims  against  said  city  or  county,  or  city  and  county,  are  paid." 
•  5    Amended  by  Stats.  1913,  p.  683. 

§  607f.  Appointment  of  humane  officers.  Approval  of 
judge.  "Record  of  humane  officers."  Revocation  of  appoint- 
ment. Pow^ers  of  officer.  Resisting  officer.  False  certifi- 
cate. Any  such  corporation  incorporated  for  the  purpose  of 
the  prevention  of  cruelty  to  animals  may  by  resolution  of  its 
board  of  directors  or  trustees  duly  entered  on  its  minutes  ap- 
point any  number  of  its  members,  who  shall  be  citizens  of  the 
state  of  California  as  humane  officers.  Each  appointment  shall 
be  by  separate  resolution.  Such  resolution  shall  state  the  full 
name  and  place  of  residence  and  the  business  or  occupation  of 
the  person  so  appointed  and  the  fact  that  he  is  a  citizen  of  the 
state  of  California  and  shall  also  designate  the  number  of  the 
badge  to  be  allotted  to  such  officer.  Every  person  so  ap- 
pointed must  Avithin  ten  days  after  his  appointment  present  to 
the  judge  of  the  superior  court  in  and  for  the  county  or  city 
and  county  in  which  the  corporation  appointing  such  officer 
has  its  principal  place  of  business  a  copy  of  such  resolution 
duly  certified  to  be  correct  by  the  president  and  secretary  of 
such  corporation  and  attested  by  its  seal.  The  judge  shall 
examine  such  appointee  as  to  his  qualifications  and  fitness  to 
act  as  such  officer  and,  if  he  approves  such  appointment,  shall 
indorse  his  approval  on  said  certified  copy  of  said  resolution. 
Said  appointee  shall  thereupon  and  within  said  period  of  ten 
days  file  said  certified  copy  with  the  judge's  approval  in- 
dorsed thereon  in  the  office  of  the  county  clerk  of  said  county 
or  city  and  county  and  shall  at  the  same  time  take  and  sub- 
scribe the  oath  of  office  prescribed  for  constables  or  other  peace 
officers.  The  county  clerk  shall  thereupon  immediately  enter 
in  a  book  to  be  kept  in  his  office  and  designated  "Record  of 
Humane  Officers"  the  name  of  such  officer,  the  number  of  his 
badge,  the  name  of  the  corporation  appointing  him  and  the 
date  of  such  filing.  At  the  time  of  such  filing  the  county  clerk 
shall  collect  from  such  officer  a  fee  of  fifty  cents,  w^hich  shall 
be  in  full  for  all  services  to  be  performed  by  the  county  clerk 
under  the  provisions  of  this  section.  The  corporation  appoint- 
ing such  officer  may  revoke  such  appointment  at  any  time  by 
resolution  of  its  board  of  directors  or  trustees,  a  duly  certified 
copy  of  which  resolution  must  within  five  days  after  its  adop- 
tion be  filed  in  the  office  of  the  county  clerk  in  which  the 
appointment  of  such  officer  is  recorded  and  upon  such  filing 
the  county  clerk  shall  enter  the  fact  of  such  revocation  and 
the  date  of  the  filing  thereof  opposite  the  name  of  such  officer 
in  such  record  of  humane  officers.  Such  humane  officers  after 
qualifying  as  above  provided  shall  have  power  at  all  places 


§  607f  CIVIL  CODE.  298 

within  the  state  lawfully  to  interfere  to  prevent  the  perpetra- 
tion of  any  act  of  cruelty  upon  any  dumb  animal  and  may  use 
such  force  as  may  be  necessary  to  prevent  the  same  and  to 
that  end  may  summon  to  their  aid  any  bystander.  They  may 
make  arrests  for  the  violation  of  any  penal  law  of  this  state 
relating  to  or  affecting  animals  in  the  same  manner  as  a  con- 
stable or  other  peace  officer  and  may  carr}^  such  weapons  as 
peace  officers  are  authorized  to  carry ;  except  that  in  cities  and 
counties  and  cities  of  the  first  and  first  and  one-half  classes  no 
such  humane  officer  shall  carry  any  such  weapon  unless  per- 
mission in  Avriting  so  to  do  has  first  been  granted  to  him  by 
the  board  of  police  commissioners  of  such  city  or  city  and 
county.  Every  humane  officer  must  Avhen  making  such  arrests 
exhibit  and  expose  a  suitable  badge  to  be  adopted  by  the  cor- 
poration appointing  him  which  shall  bear  its  name  and  a  num- 
ber. Any  person  resisting  a  humane  officer  in  the  performance 
of  his  duty  as  provided  in  this  section,  shall  be  guilty  of  a  mis- 
demeanor. Any  person  who  has  not  been  appointed  and  quali- 
fied as  a  humane  officer  as  provided  in  this  section,  or  whose 
appointment  has  been  revoked  as  provided  in  this  section,  who 
shall  represent  himself  to  be  or  shall  attempt  to  act  as  such 
officer  shall  be  guilty  of  a  misdemeanor.  Any  officer  of  such 
corporation  who  shall  knowingly  or  willfully  sign  or  issue  any 
certificate  provided  for  in  this  section,  which  shall  be  in 
any  material  respect  false  or  untrue,  shall  be  guilty  of  a 
misdemeanor. 

§  2.  All  acts  and  parts  of  acts  in  conflict  with  the  provisions 
of  this  act  are  hereby  repealed.  [Amendment  approved  1913 ; 
Stats.  1913,  p.  511.] 

Legislation  §  607f.  1.  Addition  by  Stats.  1901,  p.  3S3;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  591.  See  ante,  Legislation  Title  Xlla. 
As  enacted  in  1905  it  read:  "All  members  and  agents,  and  all  officers  of 
each  or  any  of  such  corporations  or  societies,  as  may  by  the  trustees 
thereof  be  duly  authorized  in  writing,  approved  by  a  .ludge  of  the  su- 
perior court  of  the  county  in  which  such  corporation  or  society  was  or- 
ganized, and  sworn  in  the  same  manner  as  are  constables  or  peace 
officers,  have  power  lawfully  to  interfere  to  prevent  the  perpetration  of 
any  act  'of  cruelty  upon  any  child  or  dumb  animal,  and  may  use  such 
force  as  is  necessary  to  prevent  the  same,  and  to  that  end  may  summon 
to  their  aid  any  bystander;  they  may  make  arrests  for  the  violation  of 
any  penal  law  relating  to  or  affecting  children  or  animals  in  the  same 
manner  as  a  constable  or  other  peace  officer;  and  may  carry  the  same 
or  similar  weapons  that  such  officers  are  authorized  to  carry.  All  such 
members  and  agents  must,  when  making  such  arrests,  exhibit  and 
expose  a  suitable  badge  to  be  adopted  by  such  corporation  or  society. 
All  persons  resisting  such  specially  appointed  officers,  when  perform- 
ing any  duty  under  this  section,,  are  guilty  of  a  misdemeanor." 

3.  Amended  by  Stats.  1913,  p.  511. 


299  SOCIETIES  TO  PREVENT  CRUELTY  TO  CHILDREN,  ETC.       §  607g 

§  607g-.  Children  who  may  be  arrested  and  brought  before 
a  court  or  magistrate  for  examination.  Any  child  under  the 
age  of  sixteen  years  that  comes  within  any  of  the  following 
descriptions  named : 

1.  Who  is  found  begging  or  receiving  or  gathering  alms 
(whether  actually  begging,  or  under  the  pretext  of  selling  or 
offering  for  sale  anything),  or  being  in  any  street,  road,  or  pub- 
lic place  for  the  purpose  of  so  begging,  gathering,  or  receiving 
alms ; 

2.  Who  is  found  wandering  and  not  having  any  home  or 
settled  place  of  abode,  or  proper  guardianship,  or  visible  means 
of  subsistence ; 

3.  Who  is  found  destitute,  either  being  an  orphan,  or  hav- 
ing a  vicious  parent  who  is  undergoing  penal  servitude  or 
imprisonment ; 

4.  AVho  frequents  the  company  of  reputed  thieves  or  prosti- 
tutes, or  houses  of  prostitution  or  assignation,  or  dance-houses,  • 
concert  saloons,  theaters,  or  variety  halls,  or  other  places  of 
amusement  where  spirituous,  malt,  or  vinous  liquors  are  sold, 
without  parent  or  guardian ; 

5.  Who  is  engaged  or  used  for  or  in  any  business,  exhibition, 
vocation,  or  purpose,  in  violation  of  any  law  of  this  state; 

—Must  be  arrested  and  brought  before  a  court  or  magis- 
trate, and  when,  upon  examination  before  such  court  or  magis- 
trate, it  appears  that  any  such  child  has  been  engaged  in  any 
of  the  aforesaid  acts,  or  comes  within  any  of  the  aforesaid 
descriptions ;  or  when,  upon  the  examination  or  conviction  of 
any  person  having  the  custody  of  a  child,  of  a  criminal  assault 
upon  it,  the  court  or  magistrate  before  whom  such  examination 
or  conviction  is  had  deems  it  desirable  for  the  welfare  of  such 
child  that  the  person  so  examined  or  convicted  should  be  de- 
prived of  its  custody  thereafter;  such  court  or  magistrate, 
when  it  deems  it  expedient  for  the  welfare  of  such  child,  may 
commit  such  child  to  an  orphan  asylum,  corporation,  or  society 
for  the  prevention  of  cruelty  to  children,  charitable  or  other 
institution,  or  make  such  other  disposition  thereof  as  now  is  or 
hereafter  may  be  provided  by  law  in  cases  of  vagrant,  truant, 
disorderly,  pauper,  or  destitute  children.  Any  corporation, 
organized  under  this  title,  or  now  existing,  for  the  prevention 
of  cruelty  to  children,  or  any  officer  or  member  thereof,  may 
institute  proceedings  under  this  section  for  the  welfare  of  any 
such  child. 

Legislation  §  607g.  1.  Addition  by  Stats.  1901,  p.  3S4;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  591.     See  ante,  Legislation   Title  XFIa. 


§  609  CIVIL  CODE.  300 

TITLE  XIII. 

Cemetery  Corporations. 

§  608.  How  much  land  may  be  held,  and  how  disposed  of. 

§  609.  Who  are  members  eligible  to  vote  and  hold  office. 

§  610.  May  hold  personal  property,  to  what  amount.     How  disposed  of. 

§  611.  May  issue  bonds  to  pay  for  grounds.     Proceeds  of  sales,  how  dis- 
posed of. 

§  612.  May  take  and  hold  property  or  use  income  thereof,  how. 

§  613.  When  burial  lot  inalienable.     Who  may  not  be  buried  in  lot. 

§  614.  Lot-owners  previous  to  purchase  to  be  members  of  the  corporation. 

§  615.  May  sell  lands,  how. 

§  616.  May  hold  property.     Income,  how  applied. 

§  608.    How  much  land  may  be  held,  and  how  disposed  of. 

Corporations  organized  to  establish  and  maintain  cemeteries 
may  take,  by  purchase,  donation,  or  devise,  land,  not  exceed- 
ing three  hundred  and  twent}'  acres  in  extent,  in  the  county 
wherein  their  articles  of  incorporation  are  filed,  or  in  an  ad- 
joining county,  and  may  employ  any  surplus  moneys  in  the 
treasury  thereof  for  such  purpose ;  such  lands  to  be  held  and 
occupied  exclusively  as  a  cemetery  for  the  burial  of  the  dead. 
The  lands  must  be  surveyed  and  subdivided  into  lots  or  plats, 
avenues,  and  walks,  under  order  of  the  directors,  and  a  map 
thereof  filed  in  the  office  of  the  recorder  of  the  county  wherein 
the  lands  are  situated.  Thereafter,  upon  such  terms  and  sub- 
ject to  such  conditions  and  restrictions,  to  be  inserted  in  the 
conveyances,  as  the  by-laws  or  directors  may  prescribe,  the 
directors  may  sell  and  convey  the  lots  or  plats  to  purchasers. 
[Amendment  approved  1891;  Stats.  1891,  p.  180.] 

Manner  of  execution  of  deeds  by:  See  post.  Appendix,  tit.  "Corpora- 
tions." 

Legislation  §  608.  1.  Enacted  March  21,  1872;  based  on  Stats.  1859, 
p.  281,  §  4. 

2.  Amended  by  Stats.  1891,  p.  ISO,  in  first  sentence,  adding  "or  in 
an  adjoining  county,  and  may  employ  any  surplus  moneys  in  the  treas- 
ury thereof  for  such  purpose;  such  lands"  before  "to  be  held." 

§  609.    Who  are  members  eligible  to  vote  and  hold  office. 

Every  person  of  full  age  who  is  proprietor  of  a  lot  or  plat  in 
the  cemetery  of  the  corporation,  containing  not  less  than  two 
hundred  square  feet  of  land,  or,  if  there  be  more  than  one 
proprietor  of  any  such  lot,  then  such  of  the  proprietors  as  the 
majority  of  joint  proprietors  designate,  may,  in  person  or  by 
proxy,  cast  one  vote  at  all  elections  had  by  the  corporation  for 
directors  or  any  other  purpose,  and  is  eligible  to  any  office  of 
the  corporation.  At  each  annual  meeting  or  election,  the  di- 
rectors must  make  a  report  to  the  proprietors  of  all  their 


301  CEMETERY  COEPORATIONS.  §  612 

doings  and  of  the  management  and  condition  of  the  property 
and  concerns  of  the  corporation. 

Legislation  §  609.  Enacted  March  21,  1872;  based  on  Stats.  1859, 
p.  281,  §  5. 

§  610.  May  hold  personal  property  to  what  amount.  How 
disposed  of.  Such  corporations  may  hold  personal  property 
to  an  amount  not  exceeding  five  thousand  dollars,  in  addition 
to  the  surplus  remaining  from  the  sales  of  lots  or  plats  after 
the  payments  required  in  the  succeeding  section.  Such  sur- 
plus must  be  disposed  of  in  the  improvement,  embellishment, 
and  preservation  of  the  cemetery,  and  paying  incidental  ex- 
penses of  the  corporation,  and  in  no  other  manner. 

Iiegislation  §  610.     Enacted   March   21,   1872;    based   on   Stats.    1859, 

p.  281,  §  4;  Stats.  1864,  p.  12,  §  1. 

§  611.  May  issue  bonds  to  pay  for  grounds.  Proceeds  of 
sales,  how  disposed  of.  Such  corporations  may  issue  their 
bonds,  bearing  interest  not  exceeding  twelve  per  cent  per , 
annum,  for  the  purchase  of  lands  for  their  cemeteries,  payable 
out  of  the  proceeds  of  the  cemetery  and  not  otherwise ;  sixty 
per  cent  of  the  proceeds  of  sales  of  lots,  plats,  and  graves  must 
be  applied  at  least  every  three  months  to  the  payment  of  the 
bonds  and  interest.  Such  corporations  may  also  agree  with 
the  person  or  persons  from  whom  cemetery  lands  shall  be  pur- 
chased to  pay  tqr  such  lands,  as  the  purchase  price  thereof,  any 
specified  share  or  portion,  not  exceeding  one  half,  of  the  pro- 
ceeds of  all  sales  of  lots  or  plats  made  from  such  lands ;  such 
payment  to  be  made  at  such  intervals  as  may  be  agreed  upon. 
In  all  cases  where  cemetery  lands  shall  be  purchased  and 
agreed  to  be  paid  for  in  the  manner  last  provided,  the  prices  for 
lots  or  plats  specified  in  the  by-laws,  rules,  or  regulations  first 
adopted  by  such  association,  or  prescribed  in  the  agreement 
between  the  cemetery  and  the  person  or  persons  from  whom 
the  cemetery  lands  were  purchased,  shall  not  be  changed  with- 
out the  written  consent  of  a  majority  in  interest  of  the  persons 
from  whom  such  lands  were  purchased,  their  heirs,  repre- 
sentatives, '  or  assigns.  [Amendment  approved  1880;  Code 
Amdts.  1880,  p.  12.] 

Legislation  §  611.  1.  Enacted  March  21,  1872  (based  on  Stats.  1859, 
p.  281,  §7;  Stats.  1863-64,  p.  12,  §  1),  (1)  the  words  "sixty  per  cent" 
then  being  a  part  of  the  first  sentence,  being  preceded  by  a  semicolon, 
and  (2)  the  section  ending  with  the  words  "bonds  and  interest,"  the 
end  of  the  first  sentence  of  the  present  section. 

2.  Amended  by  Code  Amdts.  1880,  p.  12,  adding  the  last  two  sen- 
tences. 

§  612.  May  take  and  hold  property  or  use  income  thereof, 
how.     Any  corporation  organized  to  establish  and  maintain, 


§  6i4  CIVIL   CODE.     •  SO^ 

or  to  improve,  a  cemetery,  may  take  and  hold  title  to  any 
cemetery  lot,  plat,  or  grave,  devised  or  given  to  it  in  trust 
for  the  specific  purpose  of  perpetually  caring  for  the  same. 
[Amendment  approved  1901;  Stats.  1901,  p.  814.] 

Legislation  §  612.  1.  Enacted  March  21,  1872  (based  on  Stats.  1859, 
p.  281,  §  9),  and  then  read:  "Cemetery  corporations  may  take  and  hold 
any  property  bequeathed  or  given  them  on  trust,  or  the  lots,  plats,  or 
graves  thereon,  for  the  specific  purpose  of  embellishing  or  improving 
the  grounds,  avenues,  or  superstructures  of  their  cemeteries,  to  use 
the  income  thereof,  for  the  erection,  preservation,  or  repair  of  monu- 
ments therein,  or  for  any  other  purpose  or  design  consistent  with  the 
objects  of  the  corporation." 

2,  Amendment  by  Stats.  1901,  p.  384;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1901,  p.  814. 

§  613.  When  burial-lot  inalienable.  Who  may  not  be  buried 
in  lot.  Whenever  an  interment  is  made  in  any  lot  or  plat 
transferred  to  individual  otvners  by  the  corporation,  the  same 
'thereby,  becomes  forever  inalienable,  and  descends  in  regular 
line  of  succession  to  the  heirs  at  law  of  the  owner.  When 
there  are  several  owners  of  interests  in  such  lot  or  plat,  one 
or  more  may  acquire  by  purchase  the  interest  of  others  inter- 
ested in  the  fee-simple  title  thereof,  but  no  one  not  an  owner 
acquires  interest  or  right  of  burial  therein  by  purchase ;  nor 
must  any  one  be  buried  in  any  such  lot  or  plat  not  at  the  time 
owning  an  interest  therein,  or  who  is  not  a  relative  of  such 
owner,  or  of  his  wife,  except  by  consent  of  all  jointly  inter- 
ested; provided,  however,  that  when  all  the  bodies  buried  in 
any  such  lot  shall  have  been  removed  therefrom,  with  the  con- 
sent of  the  owners  of  such  lot,  it  shall  be  lawful  for  the  then 
OAvners  of  such  lot  to  sell  and  transfer  the  same  by  deed ;  and 
any  such  sale  and  transfer  heretofore  made  is  hereby  declared 
to  be  valid  and  effectual  to  transfer  the  title  to  the  purchaser, 
any  law  to  the  contrary  thereof  notwithstanding.  [Amend- 
ment approved  1885 ;  Stats.  1885,  p.  1.] 

Legislation  §  613.     1.  Enacted  March  21,  1872  (based  on  Stats.  1859, 

p.  281,  §  11),   (1)   in  second  sentence,  then  having  the  definite  article 

"the"  instead  of  the  indefinite  "a"  before  "relative";   (2)   the  section 

then  not  containing  the  proviso. 

2.  Amended  by  Stats.  1885,  p.  1. 

3.  Amendment  by  Stats.  1901,  p.  385;  unconstitutional.  See  note, 
§  4,  ante. 

§  614.  Lot-owners  previous  to  purchase  to  be  members  of 
the  corporation.  When  grounds  purchased  or  otherwise  ac- 
quired for  cemetery  purposes  have  been  previously  used  as  a 
burial-ground,  those  who  are  lot-owners  at  the  time  of  the  pur- 
chase continue  to  own  the  same,  and  are  members  of  the  cor- 


estate,  or  in  central  vrnl/'r.  °'  '"  '^'••'*  mortgages  on  real 
estate  man?  cTtyo'^^ittanf /"'?"""  P'-oducin^  iniproved  real 
davs  from  aL  1  ?^  ^  county  in  this  state.  (In  effect  90 
days   from  and  after  April  29.   1921.     Stats.    1921.    Chap    316.) 


303  CEMETERY  CORPORATIONS.  §  616 

poratioii,  with  all  the  privileges  a  purchase  of  a  lot  from  the 
corporation  confers. 

Legislation  §  614.     Enacted   March   21,   1872;    based   on   Stats.    1859, 
p.  281,  §  12. 

§  615.  May  sell  lands,  how.  Cemetery  corporations  may 
sell  lands  held  by  them  upon  obtaining  an  order  for  that  pur- 
pose from  the  superior  court  of  the  county  where  the  lands  are 
situated.  Before  making  the  order,  proof  must  be  made  to  the 
satisfaction  of  the  court  that  notice  of  the  application  for  leave 
to  sell  has  been  given  by  publication  in  such  manner  and  for 
such  time  as  the  court  has  directed,  and  that  the  lands  are  not 
required  for  and  are  not  in  use  for  burial  purposes,  and  that 
it  is  for  the  interest  of  the  corporation  that  such  lands  be  sold. 
The  application  must  be  made  by  petition,  and  any  member  of 
the  c'orporation  may  oppose  the  granting  of  the  order  by 
affidavit  or  otherwise. 

Legislation  §  615.     Added  by  Stats.  1889,  p.  61. 

§  616.    May   hold   property.     Income,    how   applied.     Any 

corporation  organized  to  establish  and  maintain,  or  to  improve, 
a  cemetery,  may  take  and  hold  any  property  bequeathed, 
granted,  or  given  to  it  in  trust,  to  apply  the  proceeds  or  income 
thereof  to  any  and  all  of  the  following  purposes :  To  the  im- 
provement or  embellishment  of  such  cemetery  or  of  any  lot 
therein ;  or  to  the  erection,  renewal,  repair,  or  preservation  of 
any  monument,  fence,  or  other  structure  in  such  cemetery ;  or 
to  the  planting  or  cultivation  of  trees,  shrubs,  or  plants  in 
or  around  such  cemetery,  or  any  lot  therein ;  or  to  the  improv- 
ing, ornamenting,  or  embellishing  of  such  cemetery,  or  any  lot 
therein,  in  any  other  mode  or  manner  not  inconsistent  with 
the  purposes  for  which  such  cemetery  was  established  or  is 
being  maintained.  Such  property  and  the  proceeds  or  income 
thereof  shall  be  invested  and  reinvested  in  bonds  of  the  United 
States,  or  of  this  state,  or  of  any  municipality  of  this  state, 
or  in  first  mortgages  on  real  estate,  or  in  centrally  located  in- 
come-producing improved  real  estate  in  any  city,  or  city  and 
county  in  this  state,  if  such  investment  is  not  repugnant  to  the 
terms  of  the  bequest,  grant,  or  gift.  [Amendment  approved 
1901;  Stats.  1901,  p.  814.] 

Legislation  §  616.  1.  Added  by  Stats.  1895,  p.  162,  (1)  in  first  sen- 
tence, having  (a)  "upon"  instead  of  "in"  before  "trust,"  (b)  "or"  in- 
stead of  "and"  in  the  words  "to  any  and  all,"  and  (c)  "said"  instead  of 
"such"  before  "cemetery"  at  end  of  senteace;  (2)  the  final  sentence 
reading,  "Such  property,  and  the  proceeds  or  income  thereof,  shall 
be  invested  and  reinvested  by  such  corporation,  in  the  bonds  of  the 
United  States,  or  of  this  state,  or  of  any  municipality  of  this  state, 
or  in  mortgages  of  real  estate,  if  such  investment  be  not  repugnant 
to  the  terms  of  the  bequest,  grant,  or  gift." 
2.  Amended  by  Stats.  1901,  p.  814. 

k/1 


§  622  CIVIL  CODE.  304 

TITLE  XIV. 
Agricultural  Fair  Corporations. 

§  620.     May  acquire  and  hold  real  estate,  how  much. 

§  621.     Shall    not    contract    debts    or    liabilities    exceeding    amount    in 

treasury. 
§  622.     Not  for  profit.     May  fix  fee,  etc.,  for  membership. 

§  620.  May  acquire  and  hold  real  estate,  how  much.  Agri- 
cultural fair  corporations  may  purchase,  hold,  or  lease  any 
quantity  of  land,  not  exceeding  in  the  aggregate  one  hundred 
and  sixty  acres,  with  such  buildings  and  improvements  as  may 
be  erected  thereon,  and  may  sell,  lease,  or  otherwise  dispose 
of  the  same,  at  pleasure.  This  real  estate  must  be  held  for  the 
purpose  of  erecting  buildings  and  other  improvements  thereon, 
to  promote  and  encourage  agriculture,  horticulture,  mechanics, 
manufactures,  stock-raising,  and  general  domestic  industry. 
Legislation  §  620.     Enacted   March   21,   1872;    based   on   Stats.   1S59, 

p.  104,  §  2. 

§  621.  Shall  not  contract  debts  or  liabilities  exceeding 
amount  in  treasury.  Such  corporation  must  not  contract  any 
debts  or  liabilities  in  excess  of  the  amount  of  money  in  the 
treasury  at  the  time  of  contract,  except  for  the  purchase  of 
real  property,  for  which  they  may  create  a  debt  not  exceeding 
iive  thousand  dollars,  secured  by  mortgage  on  the  property  of 
the  corporation.  The  directors  who  vote  therefor  are  person- 
ally liable  for  any  debt  contracted  or  incurred  in  violation  of 
this  section. 

Legislation  §  621.     Enacted   March   21,   1872;    based   on   Stats.    1859, 

p.  104,  §  5. 

§  622.     Not  for  profit.     May  fix  fee,  etc.,  for  membership. 

Agricultural  fair  corporations  are  not  conducted  for  profit,  and 
have  no  capital  stock  or  income  other  than  that  derived  from 
charges  to  exhibitors  and  fees  for  membership,  Mdiich  charges, 
together  with  the  term  of  membership  and  mode  of  acquiring 
the  same,  must  be  provided  for  in  their  by-laws.  Such  fees 
must  never  be  greater  than  to  raise  sufficient  revenue  to  dis- 
charge the  debt  for  the  real  estate  and  the  improvements 
thereon,  and  to  defray  the  current  expenses  of  fairs. 

Legislation  §  622.     Enacted   March   21,   1872;   based  on   Stats.    1S59, 
p.  104,  §  4. 


305  CORPORATIONS   TO   FURNISH   LIGHT.  S  629 


TITLE  XV. 
Corporations  to  Furnish  Light  for  Public  Use. 

§  628.     Corporations  to  obtain  privilege  from  city  or  town,  and  use  meters 

proved  by  the  inspector.      [Repealed.] 
§  629.     Companies  must  supply  gas,  electricity,  etc.,  to  buildings  within 

one  hundred  feet  distant  from  main.      [Repealed.] 
§  630.     When  corporations  may  refuse  to  supply  gas.     [Repealed.] 
§  630a.  When  corporations  may  refuse  to  supply  electric  current  for  light. 

[Repealed.] 
§  631.     Right  to  enter  buildings  for  inspection.     [Repealed.] 
§  632.     Right  to  shut  off  supply  of  gas  or  electricity.      [Repealed.] 

Legislation  Title  XV.  1.  Enacted  March  21,  1872,  under  the  title 
"Gas  Corporations,"  and  then  contained  §§  628-632. 

2.  Repealed  and  a  new  title  substituted  by  Stats.  1905,  p.  592,  the 
title  of  the  act  reading,  "An  Act  to  repeal  Title  XV  of  Part  IV  of 
Division  First  of  the  Civil  Code,  and  to  substitute  therefor  in  said 
code  a  new  Title  XV,  relating  to  corporations  formed  for  the  purpose 
of  furnishing  light  for  public  use";  the  code  commissioner  saying  in 
his  note  to  §§  629-632,  "The  purpose  of  the  amendment  is  to  make  the 
above  sections  applicable  to  electric  as  well  as  to  gas-light  corpora- 
tions. To  accomplish  this,  the  following  changes  have  been  made: 
In  §  629  the  words  'or  direct  or  primary  wire'  are  inserted  after  'main,' 
and  the  words  'or  electricity'  are  inserted  in  two  places  after  'gas.' 
§  630a  is  a  new  section,  to  extend  the  provisions  of  the  chapter  'Elec- 
tric Light  Companies,'  and  provide  for  advances  similar  to  those  made 
to  gas  companies  by  subscribers.  In  §  631  the  words  'any  owner  or 
manager  of  gas  or  electric  works,  or  agent  of  such  owner  or  manager, 
exhibiting  written  authority,  signed  by  such  owner  or  manager,  or' 
are  inserted  at  the  beginning  of  the  section;  the  words  'or  electric 
light'  are  inserted  after  'gas';  the  words  'or  electricity'  are  inserted 
after  'gas,'  and  the  words  'or  electric  meters'  are  inserted  after  'meters.' 
In  §  632  the  words  'or  electricity'  are  added  after  'gas'  in  three  places, 
and  the  word  'wires'  is  inserted  after  'pipes.'  "  See  post,  tit.  "Legis- 
lation," under  the  respective  sections  of  the  title. 

3.  Title  XV  was  repealed  by  Stats.  1915,  p.  169. 

§  628.  Corporations  to  obtain  privilege  from  city  or  town, 
and  use  meters  proved  by  the  inspector.  [Repealed  1905; 
Stats.  1905,  p.  592.] 

Legislation  §  628.     1.  Enacted  March  21,  1872. 

2.  Repealed  by  Stats.  1905,  p.  592,  in  repealing  Title  XV  and  sub- 
stituting a  new  Title  XV. 

§  629.  Companies  must  supply  gas,  electricity,  etc.,  to  build- 
ings within  one  hundred  feet  distant  from  main.  [Repealed 
1915;  Stats.  1915,  p.  169.  J 

Legislation  §  629.     1,  Enacted  March  21,  1872;  based  on  Stats.  1863, 

p.  647,  §  3. 

2.  Amendment  by  Stats.  1901,  p.  385;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1905,  p.  593,  in  repealing  Title  XV,  and  re- 
enacted  and  amended  by  the  same  act. 

Civ.  Code— 20 


§  632  CIVIL  CODE.  306 

4.  Amended  by  Stats.  1911,  p.  887. 

5.  Eepealed  by  Stats.  1915,  p.  169.     See  ante,  Legislation  Title  XV.' 

§  630.     When  corporations  may  refuse  to  supply  gas.     [Re- 
pealed 1915;  Stats.  1915,  p.  169.] 

Legislation  §  630.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  385;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  593,  in  repealing  Title  XV,  and  re- 
enacted  by  the  same  act,  in  the  exact  language  of  the  original  code 
section. 

4.  Eepealed  by  Stats.  1915,  p.  169.     See  ante.  Legislation  Title  XV. 

§  630a.    When  corporations  may  refuse  to  supply  electric 
current  for  light.     [Repealed  1915;  Stats.  1915,  p.  169.] 

Legislation  §  630a.  1.  Added  by  Stats.  1905,  p.  593,  in  repealing 
Title  XV  and  substituting  a  new  Title  XV. 

2.  Eepealed  by  Stats.  1915,  p.  169.     See  ante.  Legislation  Title  XV. 

§  631.     Right  to  enter  buildings  for  inspection.     [Repealed 
1915;  Stats.  1915,  p.  169.] 

Legislation  §  631.  1.  Enacted  March  21,  1872  (based  on  Stats.  1863, 
p.  647,  §6). 

2.  Amendment  by  Stats.  1901,  p.  386;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Eepealed  by  Stats.'  1905,  p.  593,  in  repealing  Title  XV,  and  re- 
enacted  and  amended  by  the  same  act. 

4.  Eepealed  by  Stats.  1915,  p.  169.     See  ante,  Legislation  Title  XV. 

§  632.     Right  to  shut  off  supply  of  gas  or  electricity.     [Re- 
pealed 1915;  Stats.  1915,  p.  169.] 

Legislation  §  632.     1.  Enacted  March  21,  1872  (based  on  Stats.  1863, 

P-  647,  §7).  .       .        ,      o 

2.  Amendment  by   Stats.   1901,   p.   386;   unconstitutional.     See   note, 

§  4,  ante. 

3.  Eepealed  by  Stats.  1905,  p.  594.  in  repealing  Title  XV,  and  re- 
enacted  and  amended  by  the  same  act. 

4.  Eepealed  by  Stats.  1915,  p.  169.     See  ante,  Legislation  Title  XV. 


307  LAND  AND  BUILDING  CORPORATIONS. 

TITLE  XVI. 
Land  and  Building  Corporations. 

§  633.  Powers  of  building  and  loan  associations.  Purposes  for  which 
formed. 

§  634.  Capital.  Dues.  Shares.  Guarantee  stocks.  Keserve  fund.  Selec- 
tion of  directors.     Transfer  fee. 

§  635.     Eetiring  free  shares. 

§  636.     Maturity  of  stock. 

§  637.  Loans  of  building  and  loan  associations.  Officers  may  not  borrow. 
No  loan  on  own  guaranteed  stock.     No  loan  on  mining  stock. 

§  638.     Security  for  loans.     Interest. 

§  638a.  Withdrawal  of  stock,  notice  of.     [Eepealed.] 

§  639.     Arrears  in  payments.     Default.     Forfeitures. 

§  640.     Purchase  of  real  estate. 

§  641.     Profits  and  losses. 

§  642.     Withdrawals. 

§  642a.  Eeceipts  to  be  applied  to  demands  unpaid  for  year.  Demands 
unpaid  for  two  years;  business  may  be  taken  over. 

§  643.     Membership. 

§  644.     State  supervision  and  control. 

§  645.     Annual  report. 

§  646.  Building  and  loan  associations  must  make  deposit.  Guarantee 
fund.  License.  Securities  may  be  substituted.  Penalty  for 
non-compliance. 

§  647.  Building  and  loan  associations  may  invest  in  certain  bonds.  Ap- 
proval by  official  vested  with  power  of  supervision. 

§  648.     Building  and  loan  associations,  to  include  what. 

§  648a.  Formation  of  building  and  loan  associations.  Reincorporation  of 
existing  associations. 

§  648^.  Act  imposing  tax  on  stocks  not  applicable     [Repealed.] 

Legislation  Title  XVI.  1.  Enacted  March  21,  1872,  and  then  con- 
tained §§  639-648,  differing  in  subject-matter  from  the  present  sections 
of  tlie  same  number. 

2.  By  Stats.  1891,  p.  252,  §§  639,  640,  641,  642,  643,  644,  645,  (§646 
having  been  repealed  in  1873-74,)  and  647  were  repealed  and  new  sec- 
tions of  these  numbers  added,  and  seventeen  new  sections  §§  633- 
6481/2)  also  added,  by  "An  Act  to  repeal  [§§  639-645,  §  647],  of  title 
sixteen,  of  part  four,  division  first  of  the  Civil  Code,  and  to  add  seven- 
teen new  sections  to  said  Civil  Code,  to  be  known  and  numbered  as 
sections"  633,  634,  635,  636,  637,  638,  639,  640,  641,  642,  643,  644,  645, 
646,  647,  648,  and  GiSMi,  "providing  for  the  formation  and  government 
of  mutual  building  and  loan  associations." 

3.  By  Stats.  1907,  p.  923,  Title  XVI  was  repealed  and  a  new  Title 
XVI  substituted,  the  title  of  the  act  reading,  "An  Act  to  repeal  title 
sixteen,  of  part  four,  of  division  first,  of  the  Civil  Code  of  the  state  of 
California,  and  each  and  every  part  and  section  of  said  title,  and  to 
substitute  a  new  title  sixteen,  to  take  the  place  thereof  in  said  code, 
relating  to  land  and  building  corporations,  also  called  building  and 
loan  associations,  and  to  other  similar  corporations  and  associations, 
and  prescribing  penalties  for  the  violation  thereof."  Section  2  of  this 
act  reads:  "Nothing  contained  in  this  act  shall  alter,  impair,  or  render 
made  by  any  such  corporation."  See  post,  tit.  "Legislation,"  under  the 
respective  sections  of  the  title. 

void  any  certificate  of  stock  heretofore  issued  or  contract  heretofore 


§  633  CIVIL  CODE.  308 

§  633.  Powers  of  building-  and  loan  associations.  Purposes 
for  which  formed.  Building  and  loan  associations  as  herein- 
after in  this  title  defined,  shall  have  power  to  receive  money 
and  accumulate  funds  to  be  loaned,  and  to  loan  the  same  to 
their  shareholders,  investors  and  others;  to  permit  sharehold- 
ers and  investors  to  withdraw  part  or  all  of  their  payments, 
investments  or  stock  deposits,  and  to  prescribe  the  terms  and 
conditions  of  such  withdrawal;  to  cancel  shares  of  stock,  the 
payments  on  which  have  been  withdrawn;  to  receive  money 
and  to  execute  certificates  therefor,  which  must  specify  the 
date,  amount,  rate  of  interest,  and  when  the  principal  and  in- 
terest are  payable,  and  also  the  withdrawal  value  thereof  at 
the  end  of  each  year;  to  borrow  money  for  the  purpose  of 
making  loans  and  of  paying  withdrawals  and  maturities;  and 
shall  have  such  further  powers  as  may  be  specifically  set  forth 
under  this  title ;  provided,  however,  that  no  such  association 
shall,  at  any  time,  have  or  carry  upon  its  books,  for  any  mem- 
ber or  investor,  any  demand,  commercial  or  checking  account 
or  any  credit  to  be  withdrawn  upon  the  presentation  of  any 
negotiable  check  or  draft.  Every  such  corporation  hereafter 
formed,  in  setting  forth  the  purposes  for  which  it  is  formed, 
shall  state,  in  its  articles  of  incorporation,  that  it  is  formed 
to  encourage  industry,  frugality,  home  building,  and  savings 
among  its  shareholders  and  members;  the  accumulation  of 
savings ;  the  loaning  to  its  shareholders  and  members  of  the 
moneys  or  funds  so  accumulated,  with  the  profits  and  earnings 
thereon,  and  the  repayment  to  each  of  his  savings  and  profits, 
whenever  they  have  accumulated  to  the  full  par  value  of  the 
shares,  or  at  any  time  when  he  shall  desire  the  same  or  when 
the  corporation  shall  desire  to  repay  the  same,  as  it  may  be 
provided  in  the  by-laws;  and  shall  also  state  that  it  is  formed 
for  all  the  purposes  specified  in  this  title.  [Amendment  ap- 
proved 1913;  Stats.  1913,  p.  552.] 

Act  creating  board  of  commissioners  of  building  and  loan  associa- 
tions:   See  Gen.  Laws,  Act  429. 

Legislation  §  633.  1.  Added  by  Stats.  1891,  p.  252,  and  then  read: 
"Corporations  may  be  formed  subject  to  the  provisions  of  this  title,  and 
with  all  the  rights,  duties,  and  powers  herein  specified.  Such  corpora- 
tions shall  be  known  as  mutual  building  and  loan  associations,  and  the 
words  'mutual  building  and  loan  association'  shall  form  part  of  the 
name  of  every  such  corporation.  The  articles  of  incorporation,  in  set- 
ting forth  the  purposes  for  which  the  corporation  is  formed,  shall  state 
that  it  is  formed  to  encourage  industry,  frugality,  home-building,  and 
savings  among  the  stockholders;  the  accumulation  of  savings;  the 
loaning  to  its  stockholders  of  the  funds  so  accumulated,  with  the 
profits  and  earnings;  and  the  repayment  to  each  stockholder  of  his  sav- 
ings and  profits,  when  they  have  accumulated  to  a  certain  sum,  or  at 


309  LAND  AND  BUILDING   CORPORATIONS.  §  634 

any  time  when  he  shall  desire  the  same,  as  provided  in  the  by-laws,  or 
when  the  corporation  shall  desire  to  repay  the  same;  and  shall  also 
state  that  it  is  formed  for  all  the  purposes  specified  in  this  title." 

2.  Eepealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act.  As  re-enacted  in  1907  the  sec- 
tion read:  "Building  and  loan  associations  as  hereinafter  in  this  title 
defined,  shall  have  power  to  receive  money  and  accumulate  funds  to  be 
loaned,  and  to  loan  the  same  to  their  shareholders,  investors  and  others; 
to  permit  shareholders  and  investors  to  withdraw  part  or  all  of  their 
payments,  investments  or  stock  deposits,  and  to  prescribe  the  terms 
and  conditions  of  such  withdrawal-;  to  cancel  shares  of  stock,  the  pay- 
ments on  which  have  been  withdrawn;  to  receive  deposits  of  money 
and  to  execute  certificates  therefor,  which  must  specify  the  date, 
amount,  rate  of  interest,  and  when  the  principal  and  interest  are  pay- 
able, and  also  the  withdrawal  value  thereof  at  the  end  of  each  year; 
to  borrow  money  for  the  purpose  of  making  loans  and  of  paying  with- 
drawals and  maturities;  and  shall  have  such  further  powers  as  may  be 
specifically  set  forth  under  this  title.  Every  such  corporation  here- 
after formed,  in  setting  forth  the  purposes  for  which  it  is  formed,  shall 
state,  in  its  articles  of  incorporation,  that  it  is  formed  to  encourage 
industry,  frugality,  home-building,  and  savings  among  its  shareholders 
and  members;  the  accumulation  of  savings;  the  loaning  to  its  share- 
holders and  members  of  the  moneys  or  funds  so  accumulated,  with  the 
profits  and  earnings  thereon,  and  the  repayment  to  each,  of  his  savings 
and  profits,  whenever  they  have  accumulated  to  the  full  par  value  of 
the  shares,  or  at  any  time  when  he  shall  desire  the  same  or  when  the 
corporation  shall  desire  to  repay  the  same,  as  may  be  provided  in  the 
by-laws;  and  shall  also  state  that  it  is  formed  for  all  the  purposes 
specified  in  this  title." 

3.  Amended  by  Stats.  1913,  p.  552.     See  ante.  Legislation  XVI. 

§  634.  Capital.  Dues.  Shares.  Guarantee  stock.  Reserve 
fund.  Selection  of  directors.  Transfer  fee.  The  capital  of 
every  such  corporation  shall  be  divided  into  shares  of  the 
matured  or  par  value  of  one  hundred  or  two  hundred  dollars 
each,  as  provided  by  the  articles  of  incorporation,  and  shall 
be  paid  in  by  the  subscribers  in  the  manner  provided  by  the 
by-laws.  All  such  payments  shall  be  called  dues.  Certifi- 
cates shall  be  issued  to  each  shareholder  on  the  first  payment 
of  dues  by  him.  Shares  pledged  as  security  for  the  payment 
of  a  loan  shall  be  called  pledge  shares,  and  all  others,  free 
shares.  All  shares  matured  and  surrendered  or  canceled, 
shall  become  the  property  of  the  corporation  and  may  be 
reissued.  The  capital  shall  consist  of  the  accumulated  dues 
together  with  the  apportioned  profits  of  the  corporation,  and 
shall  be  accumulated  by  the  issuance  of  shares  in  "install- 
ment" form  and,  where  the  by-laws  shall  so  provide,  in  any 
or  all  the  following  forms,  viz. :  "full  paid,"  "pass-book  or 
juvenile,"  and  "guarantee." 

(a)  Installment  shares  shall  ))c  cither  "serial"  or  "perma- 
nent" in  form.  When  issued  in  "serial"  form  the  periodical 
dues  on  shares  in  each  series  shall  commence  with  the  date  of 


§  634       ■  CIVIL  CODE.  310 

the  issue  of  such  series  and  the  holder  must  pay  such  dues  and 
such  amounts  per  share  and  at  such  times  as  the  by-laws  may 
provide,  and  such  payments  must  continue  on  each  share  until, 
with  the  profits  allotted  thereto,  it  reaches  its  matured  value  or 
is  withdrawn  or  canceled.  On  all  such  issues  the  dividends 
shall  be  apportioned  or  credited  equally  to  each  share  in  each 
series.  No  share  of  a  prior  series  shall  be  issued  after  the 
issue  of  shares  in  a  new  series,  except  by  way  of  transfer. 
Shares  issued  in  "permanent'Lform  may  be  issued  at  any  time 
and  the  dividends  thereon  may  be  credited  in  the  pass-books 
of  the  members.  Shares  of  either  form  may  be  issued  in 
"classes"  with  a  different  periodical  payment  for  each  class 
designation,  to  be  specified  in  the  by-laws,  and  shall  be  issued 
with  full  participation  in  the  profits  subject  to  apportionment 
as  dividends. 

(b)  Full  paid  shares  shall  be  shares  upon  which  a  single  pay- 
ment of  dues  amounting  to  one  hundred  or  tAvo  hundred  dol- 
lars per  share  shall  be  paid  at  the  time  of  subscription  and 
upon  which  the  holder  shall  be  entitled  to  either  a  full  par- 
ticipation in  the  net  profits  or  to  an  agreed  rate  of  dividends 
not  exceeding  six  per  cent  per  annum,  payable  semi-annually 
in  cash,  to  be  specified  in  the  body  of  the  certificate  issued. 
All  such  shares  may  be  issued  in  separate  classes  as  to  par- 
ticipation, under  regulations  to  be  provided  in  the  by-laws  and 
Avhich  must  be  fully  set  forth  in  or  upon  each  certificate 
issued. 

(c)  Pass-books  or  juvenile  shares  are  shares  which  shall 
participate  in  the  apportionment  of  net  profits  and  be  credited 
therewith  at  a  rate  not  less  than  seventy-five  nor  more  than 
ninety  per  centum  of  the  rate  apportioned  to  installment 
shares,  as  the  by-laws  shall  determine,  and  upon  which  the 
dues  may  be  paid  in  at  such  times  and  in  such  amounts  as  the 
holder  thereof  may  elect  until  said  shares  reach  their  matured 
value  or  are  withdrawn.  Such  shares  shall  be  withdrawable 
under  rules  to  be  provided  in  the  by-laws  and  fully  set  forth 
in  the  pass-books  issued.  The  matured  value  of  this  class 
of  shares  shall  not  exceed  in  volume  twenty-five  per  centum 
of  the  matured  value  of  all  other  shares  in  force.  No  member- 
ship fee,  fine  or  forfeiture  shall  be  chargeable  against  such 
shares. 

(d)  Guarantee  stock  shall  be  stock,  provided  by  the  by-laws, 
to  be  set  apart  and  sold  as  a  fixed,  permanent  or  guarantee 
capital.  When  any  such  stock  has  been  once  so  set  apart,  sold 
and  issued,  it  shall  thereafter  remain  as  a  fixed,  permanent  and 
guarantee  capital,  and  shall  be  subjected  to  all  the  conditions 
and  liabilities  attaching  to  the  paid  in  capital  stock  of  other 
classes  of  corporations.     Such  guarantee  stock  shall  protect 


311  LAND  AND  BUILDING  CORPORATIONS.  §  634 

and   guarantee  all  other  stockholders   and  creditors  against 
any  loss,  and  when  once  paid  it  must  be  kept  unimpaired. 

(e)  Every  corporation  specified  in  this  title  issuing  install- 
ment or  full  paid  investment  certificates,  or  both,  shall  at  all 
times  have  issued  and  fully  paid  for,  either  an  amount  of  guar- 
antee capital  stock,  or  permanent  iion-withdraAvable  capital 
stock,  or  both  such  guarantee  capital  stock  and  permanent 
nonwithdrawable  capital  stock,  or  a  reserve  fund  equal  to  ten 
per  cent  of  the  aggregate  amount  of  its  liability  on  its  said 
installment  investment  certificates  and  full  paid  up  invest- 
ment certificates ;  provided,  however,  that  the  aggregate  of 
guarantee  capital  stock,  or  permanent  non-withdrawable  capi- 
tal stock,  or  both  such  guarantee  capital  stock  and  permanent 
nonwithdrawable  capital  stock,  or  a  reserve  fund,  of  every 
building  and  loan  association  issuing  installment  or  full  paid 
investment  certificates,  or  both,  must  equal  the  following  per- 
centages of  its  investment  certificate  liabilities : 

1.  Ten  per  centum  of  any  amount  up  to  and  including  one 
million  dollars. 

2.  Seven  and  one-half  per  centum  of  any  amount  in  excess 
of  one  million  dollars,  up  to  and  including  two  million  dol- 
lars. 

3.  Five  per  centum  of  any  amount  in  excess  of  two  million 
dollars,  up  to  and  including  five  million  dollars. 

(f)  Corporations  specified  in  this  title,  issuing  guaranteed 
stock,  may  provide  in  their  by-laws  that  a  majority  of  the 
board  of  directors  shall  be  selected  from  the  holders  of  such 
stock. 

(g)  Every  such  corporation  shall  also  have  power,  by  its 
by-laws,  to  charge  an  entrance  or  withdrawal  fee,  for  each 
share  of  stock  it  may  issue,  not  exceeding  one  dollar  on  each 
share  and  also  to  charge  a  transfer  fee,  not  exceeding  ten 
cents  on  each  share,  all  of  which  fees  shall  be  accounted  for 
by  the  corporation  like  other  funds  of  the  association.  No 
other  fee,  charge  or  deduction  shall  ever  be  made  or  permitted 
to  be  made  against  any  shareholder,  or  against  any  of  his 
shares  hereafter  issued,  or  the  dues  paid  in  thereon  for  the 
purpose  of  creating  a  fund  to  be  used  in  the  payment  of  cur- 
rent or  running  exijcnses.  [Amendment  approved  1915;  Stats. 
1915,  p.  335.] 

Legislation  §  634.  1.  Added  by  Stats.  1891,'p.  253,  and  then  read: 
"The  capital  stock  of  such  corporation  shall  be  paid  in  by  the  stock- 
holders in  regular,  equal,  periodical  i)ayments,  at  such  times  and  in 
such  amounts  as  shall  be  provided  in  the  by-laws.  Such  periodical  i)ay- 
ments  shall  be  called  dues.  And  at  or  before  a  time  to  be  stated  in 
the  by-laws,  each  stockholder  shall  pay  to  the  corporation,  upon  each 
share  of  stock  held  by  him,  such  an  amount  of  dues  as  the  by-laws 
shall  provide;  and  the  payment  of  dues  shall  so  continue  on  each  share 


§  634  CIVIL  CODE.  312 

of  stock  issued  till  it  reaches  its  matured  value,  or  is  withdrawn,  can- 
celed, or  forfeited.  The  capital  stock  shall  consist  of  such  accumulated 
dues,  together  with  the  earnings  and  profits  of  the  corporation,  and 
shall  in  no  case  exceed  two  million  dollars,  except  as  to  corporations 
now  existing.  It  shall  be  divided  into  shares  of  matured  or  par  value 
of  one  hundred  dollars,  or  two  hundred  dollars  each,  as  shall  be  pro- 
vided in  the  articles  of  incorporation  and  fixed  by  the  by-laws.  Cer- 
tificates of  stock  shall  be  issued  to  each  stockholder  on  the  first  pay 
ment  of  dues  by  him.  The  shares  shall  be  issued  in  yearly,  half-yearly, 
or  quarterly  series,  except  in  corporations  now  existing,  in  such  amounts 
in  each  series,  and  at  such  times,  as  shall  be  determined  by  the  board 
of  directors.  No  share  of  a  prior  series  shall  be  issued  after  the  issu- 
ing of  shares  in  a  new  series.  Shares  which  have  not  been  pledged  as 
a  security  for  the  repayments  of  a  loan  shall  be  called  free  shares. 
Shares  that  have  been  so  pledged  shall  be  called  pledged  shares.  All 
stock  matured  and  surrendered  or  canceled  in  any  series  shall  become 
the  property  of  the  corporation,  and  may  be  issued  in  any  subsequent 
series.  Payment  of  dues  on  shares  of  stock  in  each  series  shall  com- 
mence from  the  time  that  shares  began  to  be  issued  in  such  series. 
Any  such  corporation  shall  have  power  by  its  by-laws  to  impose  and 
collect  a  fine  from  each  stockholder  not  exceeding  ten  per  cent  of  the 
defaulted  amount,  for  every  neglect  or  refusal  to  make  his  payments 
of  dues,  or  premium,  or  interest,  when  due,  and  to  impose  and  collect 
a  like  fine  successively  on  every  regular  pay-day  during  such  default. 
Every  such  corporation  hereafter  formed  shall  also  have  power  to 
charge  an  entrance  fee  upon  each  share  of  stock  issued,  not  exceeding 
ten  cents  on  each  share,  and  may  also  charge  a  transfer  fee  not  exceed- 
ing ten  cents  on  each  share,  all  of  which  shall  be  paid  into  the  treasury 
and  accounted  for  as  all  other  funds  of  the  association;  provided,  that 
building  and  loan  associations  heretofore  incorporated  may  continue 
to  charge  and  dispose  of  such  entrance  and  transfer  fees  as  are  pre- 
scribed by  the  by-laws  of  such  corporation.  Payment  of  dues  or  in- 
terest may  be  made  in  advance,  but  no  association  shall  allow  interest 
on  such  advance  payments  at  a  greater  rate  than  six  per  cent  per 
annum,  nor  for  a  longer  period  than  one  year." 

2.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act.  See  ante.  Legislation  Title 
XVI.  As  re-enacted  in  1907  it  read:  "The  capital  stock  of  every  such 
corporation  shall  be  divided  into  shares  of  the  matured  or  par  value  of 
one  hundred  or  two  hundred  dollars  each,  as  provided  by  the  articles  of 
incorporation,  and  shall  be  paid  in  by  the  stockholders  in  the  manner 
provided  by  the  by-laws.  All  such  payments  shall  be  called  dues.  The 
shares  shall  be  issued  in-  such  amounts  and  at  such  times  as  the  board 
of  directors  shall  determine,  and  certificates  of  stock  shall  be  issued  to 
each  shareholder  on  the  first  payment  of  dues  by  him.  Shares  pledged 
as  security  for  the  repayment  of  a  loan  shall  be  called  pledged  shares, 
and  all  others,  free  shares.  All  stock  matured  and  surrendered  or  can- 
celed, shall  become  the  property  of  the  corporation  and  may  be  re- 
issued. The  capital  stock  shall  consist  of  the  accumulated  dues  to- 
gether with  the  apportioned  profits  of  the  corporation.  Any  such 
corporation  shall  have  power,  by  its  by-laws,  to  impose  and  collect  a 
fine  from  each  stockholder,  not  exceeding  five  per  cent  of  the  defaulted 
amount,  for  every  neglect  or  refusal  to  make  his  payment  when  pay- 
able. Such  fines  shall  not  be  cumulative.  Every  such  corporation  shall 
also  have  power,  by  its  by-laws,  to  charge  an  entrance  or  withdrawal 
fee,  for  each  share  of  stock  it  may  issue,  not  exceeding  one  dollar  on 
each  share,  and  also  to  charge  a  transfer  fee,  not  exceeding  ten  cents 


313  LAND  AND   BUILDING  CORPORATIONS.  §  634 

on  each  share,  all  of  which  fees  shall  be  accounted  for  by  the  corpora- 
tion like  other  funds  of  the  association.  No  other  fee,  charge  or  de- 
duction shall  ever  be  made,  or  permitted  to  be  made  against  any  share- 
holder, or  against  any  of  his  shares  hereafter  issued,  or  the  dues  paid 
in  thereon  for  the  purpose  of  creating  a  fund  to  be  used  in  the  pay- 
ment of  current  or  running  expenses.  The  capital  stock  may  be  issued 
in  any  or  all  of  the  following  forms:  installment  stock,  paid-up  stock, 
and  guarantee  stock.  Installment  stock  shall  be  stock  on  which  the 
member  or  holder  must  pay  to  the  corporation  on  each  share  held  by 
him,  dues  in  such  amounts  and  at  such  times  as  the  by-laws  may  pro- 
vide and  on  which  the  payment  of  dues  must  continue  on  each  share 
until,  with  the  profits  allotted  thereto,  it  reaches  its  matured  value  or 
is  withdrawn  or  canceled.  Such  stock  may  be  issued  in  series,  and 
when  so  issued,  payment  of  dues  on  shares  in  each  series  shall  com- 
mence with  the  issue  of  shares  in  such  series.  No  share  of  a  prior 
series  shall  be  issued  after  the  issue  of  shares  of  a  new  series,  except 
by  way  of  transfer.  Paid-up  stock  shall  be  stock  for  and  upon  which 
the  owner  shall  have  paid  to  the  corporation,  the  full  par  value  thereof 
in  cash  at  the  time  of  subscription  therefor,  and  upon  which  he  shall 
be  entitled  either  to  full  participation  in  the  net  profits  of  the  corpora- 
tion, or  to  an  agreed  rate  of  interest  or  dividend  to  be  specified  in  the 
stock  certificate,  but  not  to  exceed  six  per  cent  per  annum.  All  such 
stock  shall  be  issued  under  such  regulations  as  may  be  provided  in  the 
by-laws  and  fully  set  forth  in  each  certificate.  Guarantee  stock  shall 
be  stock,  provided  by  the  by-laws,  to  be  set  apart  and  sold  as  a  fixed, 
permanent  or  guarantee  capital.  When  any  such  stock  has  been  once 
so  set  apart,  sold  and  issued,  it  shall  thereafter  remain  as  a  fixed,  per- 
manent and  guarantee  capital,  and  shall  be  subject  to  all  the  condi- 
tions and  liabilities  attaching  to  the  paid-in  capital  stock  of  other 
classes  of  corporations.  Such  guarantee  stock  shall  protect  and  guar- 
antee all  other  stockholders  and  creditors  againgt  any  loss,  and  when 
once  paid  it  must  be  kept  unimpaired.  Corporations  specified  in  this 
title,  issuing  guarantee  stock,  may  provide  in  their  by-laws  that  a 
majority  of  the  board  of  directors  shall  be  selected  from  the  holders  of 
such  stock. 

3.  Amendment  by  Stats,  of  1913,  p.  553,  and  then  read:  "The  capital 
of  every  such  corporation  shall  be  divided  into  shares  of  the  matured 
or  par  value  of  one  hundred  or  two  hundred  dollars  each,  as  provided 
by  the  articles  of  incorporation,  and  shall  be  paid  in  by  the  subscribers 
in  the  manner  provided  by  the  by-laws.  All  such  payments  shall  be 
called  dues.  Certificates  shall  be  issued  to  each  shareholder  on  the  first 
payment  of  dues  by  him.  Shares  pledged  as  security  for  the  repay- 
ment of  a  loan  shall  be  called  pledged  shares,  and  all  others,  free 
shares.  All  shares  matured  aud  surrendered  or  canceled,  shall  become 
the  property  of  the  corporation  and  may  be  reissued.  The  capital  shall 
consist  of  the  accumulated  dues  together  with  the  apportioned  profits 
of  the  corporation,  and  shall  be  accumulated  by  the  issuance  of  shares 
in  'installment'  form  and,  where  the  by-laws  shall  so  provide,  in  any 
or  all  the  following  forms,  viz.:  'full  paid,'  'pass-book  or  juvenile'  and 
'guarantee.'  a.  Installment  shares  shall  be  either  'serial'  or  'permanent' 
in  form.  When  issued  in  'serial'  form  the  periodical  dues  on  shares 
in  each  series  shall  commence  with  the  date  of  the  issue  of  such  series 
and  the  holder  must  pay  such  dues  and  such  amounts  per  share  and  at 
such  times  as  the  by-laws  may  ijrovide,  and  such  payments  must  con- 
tinue on  each  share  until,  with  the  profits  allottecl  thereto,  it  reaches 
its  matured  value  or  is  withdrawn  or  canceled.  On  all  such  issues  the 
dividends  shall  be  apportioned   or   credited   equally   to   each   share   in 


634  CIVIL  CODE.  314 

each  series.  No  share  of  a  prior  series  shall  be  issued  after  the  issue 
of  shares  in  a  new  series,  except  by  way  of  transfer.  Shares  issued  in 
'permanent'  form  may  be  issued  at  any  time  and  the  dividends  thereon 
may  be  credited  in  the  pass-books  of  the  members.  Shares  of  either 
form  may  be  issued  in  'classes'  with  a  different  periodical  payment  for 
each  class  designation,  to  be  specified  in  the  by-laws,  and  shall  be 
issued  with  full  participation  in  the  profits  subject  to  apportionment 
as  dividends,  b.  Full  paid  shares  shall  be  shares  upon  which  a  single 
payment  of  dues  amounting  to  one  hundred  or  two  hundred  dollars  per 
share  shall  be  paid  at  the  time  of  subscription  and  upon  which  the 
holder  shall  be  entitled  to  either  a  full  participation  in  the  net  profits 
or  to  an  agreed  rate  of  dividends  not  exceeding  six  per  cent  per  annum, 
payable  semi-annually  in  cash,  to  be  specified  in  the  body  of  the  cer- 
tificate issued.  All  such  shares  may  be  issued  in  separate  classes  as  to 
participation,  under  regulations  to  be  provided  in  the  by-laws,  and 
which  must  be  fully  set  forth  in  or  upon  each  certificate  issued, 
c.  Pass-books  or  juvenile  shares  are  shares  which  shall  participate  in 
the  apportionment  of  net  profits  and  be  credited  therewith  at  a  rate 
not  less  than  seventy-five  nor  more  than  ninety  per  centum  of  the  rate 
apportioned  to  installment  shares,  as  the  by-laws  shall  determine,  and 
upon  which  the  dues  may  be  paid  in  at  such  times  and  in  such  amounts 
as  the  holder  thereof  may  elect  until  said  shares  reach  their  matured 
value  or  are  withdrawn.  Such  shares  shall  be  withdrawable  under 
rules  to  be  provided  in  the  by-laws  and  fully  set  forth  in  the  pass- 
books issued.  The  matured  value  of  this  class  of  shares  shall  not  ex- 
ceed in  v6lume  twenty-five  per  centum  of  the  matured  value  of  all 
other  shares  in  force.  No  membership  fee,  fine  or  forfeiture  shall  be 
chargeable  against  such  shares,  d.  Guaranteed  stock  shall  be  stock, 
provided  by  the  by-laws,  to  be  set  apart  and  sold  as  a  fixed,  permanent 
or  guarantee  capital.  When  any  such  stock  has  been  once  so  set  apart, 
sold  and  issued,  it  /hall  thereafter  remain  as  a  fixed,  permanent  and 
guarantee  capital,  and  shall  be  subjected  to  all  the  conditions  and 
liabilities  attaching  to  the  paid-in  capital  stock  of  other  classes  of 
corporations.  Such  guarantee  stock  shall  protect  and  guarantee  all 
other  stockholders  and  creditors  against  any  loss,  and  when  once  paid 
it  must  be  kept  unimpaired,  e.  Every  corporation  specified  in  this 
title  issuing  installment  or  full  paid  investment  certificates  shall  at  all 
times  have  issued  and  fully  paid  for,  either  an  amount  of  guarantee 
capital  stock,  or  permanent  nouwithdrawable  capital  stock,  or  both 
such  guarantee  capital  stock  and  permanent  non-withdrawable  capital 
stock  equal  to  ten  per  cent  of  the  aggregate  amount  of  its  liability  on 
its  said  installment  investment  certificates,  and  full  paid  investment 
certificates,  or  shall  have  a  reserve  fund  equal  to  ten  per  cent  of  its 
said  aggregate  liability  on  said  installment  and  full  paid  investment 
certificates,  f.  Corporations  specified  in  this  title,  issuing  guarantee 
stock,  may  provide  in  their  by-laws  that  a  majority  of  the  board  of 
directors  shall  be  selected  from  the  holders  of  such  stock,  g.  Every 
such  corporation  shall  also  have  power,  by  its  by-laws,  to  charge  an 
entrance  or  withdrawal  fee,  for  each  share  of  stock  it  may  issue,  not 
exceeding  one  dollar  on  each  share,  and  also  to  charge  a  transfer  fee. 
not  exceeding  ten  cents  on  each  share,  all  of  which  fees  shall  be  ac- 
counted for  by  the  corporation  like  other  funds  of  the  association. 
No  other  fee,  charge  or  deduction  shall  ever  be  made  or  permitted  to 
be  made  against  anv  shareholder,  or  against  any  of  his  shares  here- 
after issued,  or  the  dues  paid  in  thereon  for  the  purpose  of  creating  a 
fund  to  be  used  in  the  payment  of  current  or  running  expenses." 
4.  Amended  by  Stats.  1915,  p.  335. 


315  LAND  AND  BUILDING  CORPORATIONS.  §  636 

§  635.  Retiring"  free  shares.  The  directors  may  in  their  dis- 
cretion, under  the  regulations  prescribed  by  the  by-laws,  retire 
any  free  shares  of  stock,  other  than  those  of  the  guarantee 
stock,  by  enforcing  the  withdrawal  thereof,  but  whenever  the 
withdrawal  of  any  shares  is  to  be  enforced,  the  holders  thereof 
must  be  paid  the  amount  actually  paid  in,  and  the  full  amount 
of  earnings  at  the  date  of  retirement;  provided  that  shares  of 
installment  stock  shall  not  be  forced  out  until  after  they  shall 
have  become  four  years  old. 

Legislation  §  635.  1.  Added  by  Stats.  1891,  p.  254,  and  then  read: 
"The  directors  may,  at  their  discretion,  under  the  regulations  pre- 
scribed in  their  by-laws,  retire  the  free  shares  of  any  series  of  stock, 
at  any  time  after  four  years  from  the  date  of  their  issue,  by  enforcing 
the  withdrawal  of  the  same;  but  whenever  there  shall  remain  in  any 
series,  at  the  expiration  of  five  years  after  the  date  of  its  issue,  an  ex- 
cess above  one  hundred  free  shares  of  the  par  value  of  two  hundred 
dollars  each,  or  two  hundred  free  shares  of  the  par  value  of  one  hun- 
dred dollars  each,  then  it  shall  be  the  duty  of  the  directors  to  retire 
annually  twenty-five  per  centum  of  such  excess  existing  at  said  ex- 
piration of  five  years  after  the  date  of.  its  issue,  so  that  no  more  than 
one  hundred  free  shares  shall  remain  in  such  series  at  the  expiration 
of  nine  years  from  the  date  of  its  issue;  provided,  that  no  more  than 
one-half  the  monthly  receipts  be  used  for  that  purpose;  and  thereafter 
the  directors  may,  in  their  discretion,  retire  such  other  free  shares  as 
they  consider  to  the  best  interest  of  the  association  to  retire;  pro- 
vided, that  whenever,  under  the  provisions  of  this  section,  the  with- 
drawal of  shares  is  to  be  enforced,  the  shares  to  be  retired  shall  be 
determined  by  lot,  drawn  from  all  free  shares  in  the  series,  as  shall  be 
regulated  by  the  by-laws,  and  the  holders  thereof  shall  be  paid  the 
amount  actually  paid  in,  and  the  full  amount  of  earnings  at  the  date 
of  last  apportionment  of  profits." 

2.  Amendment  by  Stats.  1901,  p.  386;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Eepealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act.  See  ante,  Legislation  Title 
XVI. 

§  636.  Maturity  of  stock.  When  any  stock  shall  have 
reached  its  matured  value,  payment  of  dues  thereon  shall 
cease.  Borrowing  stockholders  whose  loans  are  fully  paid 
shall  have  their  securities  released  and  returned  to  them. 
Holders  of  free  shares  of  stock  shall  be  paid  the  matured  value 
thereof  out  of  the  funds  of  the  corporation,  with  interest  at 
such  rate  as  the  by-laws  shall  provide,  from  the  time  the  board 
of  directors  shall  declare  such  shares  to  have  been  matured, 
until  paid ;  but  at  no  time  shall  more  than  one  half  of  the  re- 
ceipts of  the  corporation  be  applicable  to  the  payment  of 
matured  shares  without  the  consent  of  said  board.  The  order 
of  the  payment  of  matured  shares,  if  not  otherwise  determined 
by  the  by-laws,  shall  be  in  the  numerical  order  of  issuance. 


§  637  CIVIL  CODE.  316 

Legislation  §  636.  1.  Added  by  Stats.  1891,  p.  254,  and  then  read: 
"When  the  stock  in  any  series  shall  have  reached  its  matured  value, 
payment  of  dues  thereon  shall  cease,  and  all  of  the  stockholders  in  such 
series,  who  have  borrowed  from  the  association  shall  be  entitled  to 
have  their  securities  returned  to  them,  and  a  satisfaction  of  the  mort- 
gages made  by  them  to  the  association;  and  the  holders  of  free  shares 
of  stock  in  such  series  shall  be  paid  out  of  the  funds  of  the  association 
the  matured  value  thereof,  with  such  rate  of  interest  as  shall  be  de- 
termined by  the  by-laws,  from  the  time  the  board  of  directors  shall 
declare  such  share  to  have  matured  until  paid;  but  at  no  time  shall 
more  than  one  third  of  the  receipts  of  the  association  be  applicable  to 
tire  payment  of  matured  shares,  without  the  consent  of  the  board  of 
directors.  The  order  of  the  payment  of  the  matured  shares  shall  be 
determined  by  the  by-laws." 

2.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act.  See  ante,  Legislation  Title 
XVI. 

§  637.  Loans  of  building  and  loan  associations.  Officers 
may  not  borrow.  No  loan  on  own  guaranteed  stock.  No  loan 
on  mining"  stock.  Loans  may  be  made  upon  the  "mutual 
plan"  or  upon  the  ''definite  contract  plan."  Loans  made 
upon  the  mutual  plan  shall  be  accompanied  by  a  pledge  of 
shares  having  a  matured  or  par  value  equal  to  the  face  of  the 
loan.  Definite  contract  loans  shall  be  repayable  in  a  definite 
number  of  equal  periodical  installments,  to  be  named  in  the 
note  or  obligation,  each  in  an  amount  sufficient  for  the  aggre- 
gate of  all  to  repay  the  principal  of  the  loan  together  with 
interest  on  the  unpaid  periodical  balances,  within  the  time  and 
at  the  rate  agreed  upon.  It  shall  be  unlawful  for  any  director 
or  officer  of  any  corporation  governed  by  this  title,  directly 
or  indirectly,  for  himself,  or  as  a  partner  or  agent  for  others, 
to  borrow  any  of  the  funds  of  such  corporation,  and  any  offi- 
cer or  director  violating  the  provisions  of  this  section  shall  be 
guilty  of  a  felony.  Any  officer  or  director  of  any  such  cor- 
poration who  consents  on  behalf  of  such  corporation  to  make 
a  loan  to  any  officer  or  director  of  such  corporation  shall  be 
guilty  of  a  felony,  and  shall  also  be  personally  liable  to  the 
corporation  for  the  full  amount  thereof.  It  shall  be  unlawful 
for  any  building  and  loan  association,  corporation  or  society 
operating  under  the  provisions  of  this  title  to  loan  any  of  its 
funds  upon  any  of  its  own  guarantee  stock  or  upon  its  perma- 
nent nonwithdrawable  capital  stock  as  security.  Any  officer 
or  director  of  an  association  who  shall  make  any  such  loan  for 
and  on  behalf  of  any  association  shall  be  personally  liable  to 
the  corporation  for  the  full  amount  thereof,  and  shall  also  be 
deemed  guilty  of  a  felony.  It  shall  be  unlawful  for  any  build- 
ing and  loan  association,  corporation  or  society,  operating 
under  the  provisions  of  this  title,  to  loan  any  of  its  funds  upon 
4he  security  of,  or  to  invest  any  of  its  funds  in  any  mining 


317  LAND  AND  BUILDING  CORPORATIONS.  §  637 

shares  or  mining  stocks,  or  in  the  stocks  or  bonds  of  any  cor- 
poration, other  than  in  this  title  provided ;  and  any  officer  or 
director  who,  on  behalf  of  any  such  corporation,  shall  make 
any  such  loan  or  investment,  or  who  shall  consent  thereto,  shall 
be  personally  liable  to  the  corporation  for  the  whole  amount 
of  any  such  loan  or  investment,  and  shall  also  be  guilty  of  a 
felony.     [Amendment  approved  1913 ;  Stats.  1913,  p.  551.] 

Legislation  §  637.  1.  Added  by  Stats.  1891,  p.  254,  and  then  read: 
"The  moneys  in  the  hands  of  the  treasurer,  and  such  sums  as  may  be 
borrowed  by  the  corporation  for  the  purpose,  shall  be  loaned  out  in 
open  meeting  to  the  member  who  shall  bid  the  highest  premium,  or 
may  be  loaned  at  such  premium  as  may  be  fixed,  from  time  to  time,  by 
the  board  of  directors;  and  the  premium  may  be  deducted  from  the 
amount  of  the  loan,  or  such  proportion  may  be  deducted  as  the  by- 
laws shall  provide,  and  in  that  case  the  balance  of  said  premium  shall 
be  payable  in  such  installments  as  the  by-laws  shall  determine;  pro- 
vided, however,  that  where  the  premium  is  payable  in  installments,  the 
number  of  installments  into  which  the  same  is  divided  shall  be  uni- 
formly applicable  to  all  loans  made  by  the  corporation,  and  shall  be 
payable  at  the  times  and  in  the  manner  as  provided  in  the  by-laws; 
and  provided  further,  that  in  no  case  shall  the  amount  loaned  exceed 
the  matured  value  of  the  shares  pledged  to  secure  the  loan." 

2.  Eepealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act.  See  ante,  Legislation  Title 
XVI.  As  re-enacted  in  1907  the  section  read:  "Loans  may  be  made  on 
such  terms  and  conditions  as  may  be  prescribed  by  the  board  of  direct- 
ors or  the  by-laws.  Loans  may  be  made  for  a  definite  time  on  the  in- 
stallment plan.  The  number  of  installments  in  which  a  loan  with 
agreed  interest  is  to  be  repaid,  must  be  stated  in  the  note  or  obligation 
evidencing  the  loan,  and  when  the  payments  have  been  made  in  accord- 
ance with  the  contract,  the  borrower  shall  receive  a  release  of  the 
security  given  by  him.  It  shall  be  unlawful  for  any  director  or  officer 
of  any  corporation  governed  by  this  title,  directly  or  indirectly,  for 
himself,  or  as  a  partner  or  agent  for  others,  to  borrow  any  of  the  funds 
of  such  corporation,  and  any  officer  or  director  violating  the  provisions 
of  this  section  shall  be  guilty  of  a  felony.  Any  officer  or  director  of 
any  such  corporation  who  consents  on  behalf  of  such  corporation  to 
make  a  loan  to  any  officer  or  director  of  such  corporation  shall  be 
guilty  of  a  felony,  and  shall  also  be  personally  liable  to  the  corpora- 
tion for  the  full  amount  thereof.  It  shall  be  unlawful  for  any  build- 
ing and  loan  association  to  loan  any  of  its  funds  upon  any  of  its  own 
guarantee  stock  as  security.  Any  officer  or  director  of  an  association 
who  shall  make  anj'  such  loan  for  and  on  behalf  of  any  such  association 
shall  be  personally  liable  to  the  corporation  for  the  full  amount  there- 
of, and  shall  also  be  deemed  guilty  of  a  felony.  It  shall  be  unlawful 
for  any  such  corporation  to  invest  any  of  its  funds  in,  or  loan  any  of 
its  funds  upon,  any  mining  shares  or  mining  stocks  or  the  stocks  or 
bonds  of  any  corporation,  except  as  in  this  title  provided.  Every 
officer  or  director  who,  on  behalf  of  any  such  corporation  shall  make 
any  such  investment  or  loan,  or  who  shall  consent  thereto,  shall  be 
personally  liable  to  the  corporation  for  the  whole  amount  expended 
by  the  corporation  in  such  investment  or  upon  such  loan,  and  shall  also 
be  deemed  guilty  of  a  felony." 

3.  Amended  by  Stats.  1913,  p.  551. 


§  638  CIVIL  CODE.  318 

§  638.  Security  for  loans.  Interest.  For  every  loan  made 
a  note  or  obligation  must  be  executed  by  the  borrower,  se- 
cured by  a  first  mortgage  or  deed  of  trust  upon  unencumbered 
real  estate  having  an  appraised  value  of  not  less  than  twenty- 
five  per  cent  in  excess  of  the  face  of  the  loan  (except  such 
loans  as  may  be  made  upon  the  security  of  bonds  specified  in 
section  647)  ;  or  in  lieu  of  a  mortgage  or  deed  of  trust,  loans 
to  the  extent  of  not  exceeding  ninety  per  cent  of  the  then 
withdrawable  value,  may  be  made  upon  the  pledge  of  free 
shares  or  certificates  as  security  for  their  repayment.  The 
board  of  directors  may  from  time  to  time  fix  the  rate  of  inter- 
est to  be  charged  on  loans.  A  borrower  may  at  any  time 
repay  his  loan  together  with  interest  or  arrears  due  thereon 
and  upon  the  surrender  of  the  shares,  or  certificate  pledged 
as  securitv  therefor.  [Amendment  approved  1913;  Stats. 
1913,  p.  551.] 

"  Legislation  §  638;  1.  Added  by  Stats.  1891,  p.  255,  and  then  readr 
"The  rate  of  interest  on  all  loans  may  be  fixed  by  the  by-laws,  but  in 
case  the  by-laws  fail  to  fix  the  rate,  then  it  shall  be  fixed  from  time  to 
time  by  the  board  of  directors.  For  every  loan  made,  a  note  or  obliga- 
tion secured  by  a  first  mortgage  upon  unencumbered  real  estate  shall 
be  given,  accompanied  by  a  transfer  and  pledge  to  the  association  of 
the  shares  borrowed  upon,  as  collateral  security  for  the  repayment  of 
the  loan;  or,  in  lieu  of  the  mortgage,  there  may  be  pledged  and  trans- 
ferred to  the  association  for  the  payment  of  the  loan  free  shares,  the 
withdrawal  value  of  which,  under  the  by-laws,  at  the  time  of  such 
borrowing,  shall  exceed  the  amount  borrowed  and  interest  thereon  for 
six  months.  At  the  discretion  of  the  board  of  directors,  a  borrower 
may  repay  a  loan,  and  all  arrears  of  interest  and  fines  thereon,  at  any 
time,  upon  the  surrender  of  the  shares  pledged  for  the  loan." 

2.  Amended  by  Stats.  1897,  p.  30,  in  sentence  beginning  "For  every 
loan,"  inserting  "or  deed  of  trust"  after  "mortgage"  in  both  instances, 

3.  Amended  by  Stats.  1901,  p.  268,  (1)  in  sentence  beginning  "For 
every  loan,"  changing  (a)  "the  shares  borrowed  upon"  to  '"at  least  one 
share  of  stock,"  and  (b)  "the"  to  "a"  before  "mortgage  or  deed  of 
trust";  (2)  in  final  sentence,  (a)  changing  "a"  to  "the"  before  "bor- 
rower" and  before  "loan,"  and  "of"  to  "and"  in  the  words  "arrears  and 
interest,"  and  (b)  omitting  "the"  before  "surrender  of  the  shares." 

i.  Eepealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act.  See  ante.  Legislation  Title 
XVI.  As  re-enacted  in  1907  the  section  read:  "The  board  of  directors 
may  fix  from  time  to  time  the  rate  of  interest  on  loans.  For  every 
loan  made,  a  note  or  obligation,  secured  by  a  first  mortgage  or  deed  of 
trust  upon  unencumbered  real  estate,  shall  be  given,  accompanied  by  a 
pledge  to  the  association  of  shares  of  stock,  as  collateral  security  for 
the  repayment  of  the  loan,  the  matured  value  of  which  shall  equal  the 
amount  of  the  loan,  except  that  there  need  be  no  such  pledge  in  loans 
made  to  others  than  members;  or,  in  lieu  of  a  mortgage  or  deed  of 
trust,  there  may  be  pledged  to  the  association,  for  the  payment*  of  the 
loan,  free  shares,  but  any  such  loan  must  not  exceed  ninety  per  cent  of 
the  withdrawal  value  of  such  shares  under  the  by-laws,  at  the  time  of 
such  borrowing.    At  the  discretion  of  the  board  of  directors,  a  borrower 


638.  Security  for  Loans;  Interest.  For  every  loan  made  ^ ^H 
note  01'  obligation,  [expressing  and  setting  forth  the  exact  rate 
of  interest,]  must  be  executed  by  the  borrower,  secured  by  a 
first  mortgage  or  deed  of  trust  upon  unencumbered  real  estate 
having  an  appraised  value  of  not  less  than  twenty-five  per  cent 
in  excess  of  the  face  of  the  loan,  execpt  such  loans  as  may  be 
made  upon  the  security  of  bonds  specified  in  section  [six  hun- 
dred forty-seven];  or  in  lieu  of  a  mortgage  or  deed  of  trust, 
loans  to  the  extent  of  not  exceeding  ninety  per  cent  of  the 
then  withdrawable  value,  may  be  made  upon  the  pledge  of  free 
shares  or  certificates  as  security  for  their  repayment.  The  board 
of  directors  may  from  time  to  time  fix  the  rate  of  interest  to 
be  charged  on  loans.  A  borrower  may  at  any  time  repay  his 
loan,  together  with  interest  or  arrears  due  thereon,  and  upon 
the  surrender  of  the  shares,  or  certificate  pledged  as  security 
therefor.  (In  effect  90  days  from  and  after  April  27,  1917.  S'tata 
1917,   Chap.   561.)  Civ.   Code,   1917. 


319  LAND  AND  BUILDING  CORPORATIONS.  §  639 

may  repay,  at  any  time,  the  loan  with  all  interest  and  arrears  thereon, 
upon  the  surrender  of  the  shares  pledged  to  secure  the  loan." 
5.  Amended  by  Stats.  1913,  p.  551. 

§  638a.  Withdrawal  of  stock,  notice  of.  [Repealed  1907 ; 
Stats.  1907,  p.  923.] 

Legislation  §  638a.     1.  Added  by  Stats.  1905,  p.  753. 
2.  Eepealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI  and  sub- 
stituting a  new  Title  XVI.     See  ante,  Legislation  Title  XVI. 

§639.  Arrears  in  payments.  Default.  Forfeitures.  When- 
evei*  any  nonborrowing  member  shall  be  six  months  in  arrears 
in  the  payment  of  his  dnes  upon  free  shares,  the  secretary  may 
give  him  notice  thereof  in  writing,  and  a  statement  of  his  ar- 
rearages, by  mailing  the  same  to  him  at  his  last  post-office 
address  given  by  him  to  the  association;  and  if  he  shall  not 
pay  all  arrearages  within  two  Months  thereafter,  the  board 
of  directors  may,  at  their  option,  declare  his  shares  forfeited, 
and  at  the  time  of  such  forfeiture,  the  withdra^val  value 
thereof  shall  be  determined  and  stated,  and  the  defaulting 
member  shall  be  entitled  to  withdraw  the  same  Avithout  inter- 
est, upon  such  notice  as  shall  be  required  of  a  withdrawing 
shareholder.  Whepever  a  borrower  shall  be  three  months  in 
arrears  in  the  payment  of  his  dues  or  interest  or  loan  install- 
ments, the  whole  loan  shall  become  due  at  the  option  of  the 
board  of  directors,  and  they  may  proceed  to  enforce  collection 
upon  the  securities  held  by  the  association.  The  withdrawal 
value,  at  the  time  of  exercising  such  option,  of  all  shares 
pledged  as  collateral  security,  shall  be  applied  to  the  payment 
of  the  loan,  and  said  shares  from  that  time  shall  be  deemed 
surrendered  to  the  association  and  canceled. 

Legislation  §  639.  1.  Added  by  Stats.  1891,  p.  252,  in  repealing 
Title  XVI  and  substituting  a  new  Title  XVI  (see  ante,  Legislation 
Title  XVI),  and  then  read:  "Whenever  any  member  shall  be  six 
months  in  arrears  in  the  payment  of  his  dues  upon  free  shares,  the 
secretary  shall  give  him  notice  thereof,  in  writing,  and  a  statement  of 
his  arrearages,  l)y'  mailing  the  same  to  him  at  the  last  post-office  ad- 
dress given  by  him  to  the  association,  and  if  he  shall  not  pay  the 
•  •  same  within  two  months  thereafter,  the  board  of  directors  may,  at 
their  option,  declare  his  shares  forfeited;  and  at  the  time  of  such  for- 
'  feiture  the  withdrawal  value  thereof  shall  be  determined  and  stated, 
and  the  defaulting  member  shall  be  entitled  to  withdraw  the  same 
without  interest,  upon  such  notice  as  shall  be  required  of  a  withdraw- 
ing shareholder.  Whenever  a  borrowing  member  shall  be  six  months 
in  arrears  in  the  payment  of  his  dues,  or  interest,  or  premium,  the 
whole  loan  shall  become  due,  at  the  option  of  the  board  of  directors; 
and  they  may  proceed  to  enforce  collection  upon  the  securities  held 
by  the  association.  The  withdrawal  value,  at  the  time  of  the  com- 
mencement of  the  action,  of  all  shares  pledged  as  collateral  security 
for  the  loan,  shall  be  applied  to  the  payment  of  the  loan,  and  said 
shares,  from  that  time,  shall  be  deemed  surrendered  to  the  association." 
2,  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI  and  re- 


§  641  CIVIL  CODE.  320 

enacted  and  amended  by  the  same  act.  See  ante,  Legislation  Title 
XVI.  The  original  code  §  639,  which  was  based  on  Stats.  1861,  p.  567, 
§  1,  provided  for  the  organization  of  land  and  building  corporations, 
and  was  amended  in  1873-74. 

§  640.  Purchase  of  real  estate.  Any  such  association  may 
purchase  at  any  sale,  public  or  private,  any  real  estate  upon 
which  it  may  have  a  mortgage,  judgment,  lien,  or  other  en- 
cumbrance, or  in  which  it  may  have  an  interest,  and  may  sell, 
convey,  lease,  or  mortgage  the  sanie  at  pleasure  to  any  person 
or  persons. 

Legislation  §  640.  1.  Added  by  Stats.  1891,  p.  252,  in  repealing  Title 
XYL  and  substituting  a  new  Title  XVI. 

2.  Eepealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  in  the  exact  language  of  the  section  as  enacted  in  1891,  by 
the  same  act.  See  ante,  Legislation  Title  XVI.  The  original  code 
§  640  (based  on  Stats.  1861,  p.  567,  §  5;  Stats.  1869-70,  p.  474,  §  1)  pro- 
vided for  the  borrowing  of  money  by  land  and  building  corporations. 

§  641.  Profits  and  losses.  Profits  and  losses  shall  be  appor- 
tioned at  least  annually,  and  shall  be  apportioned  to  all  shares 
in  each  class  at  the  time  of  such  apportionment,  according  to 
the  actual  or  book  value  thereof.  If  the  guarantee  capital 
herein  provided  for,  if  any  there  be,  together  with  the  reserve 
fund,  or  if  the  reserve  fund,  where  there  be  no  guarantee 
capital,  shall  not  equal  five  per  cent  of  the  outstanding  loans 
at  the  time  of  each  apportionment  of  profits,  the  directors 
shall  set  aside,  as  a  reserve  fund,  not  less  than  five  per  cent 
of  the  net  profits  accruing  since  the  last  prior  apportionment, 
and  shall  continue  so  to  do  until  said  fund  shall  amount  to 
at  least  five  per  cent  of  the  loans  in  force,  at  which  figure  said 
fund  shall  thereafter  be  maintained.  Said  reserve  fund  shall 
at  all  times  be  available  to  meet  losses  arising  from  any  source 
not  heretofore  provided  to  be  assumed  by  the  guarantee 
capital. 

Every  such  corporation  having  a  paid-in  guarantee  capital 
stock,  may  provide  in  their  by-laws,  that  an  amount  not  ex- 
ceeding one  per  cent  per  annum  on  the  average  loans  in  force, 
shall  be  set  aside  from  and  out  of  the  net  profits,  at  each* 
annual  distribution  thereof, — or  a  proportionate  amount  at 
each  semi-annual  distribution, — from  Avhich  to  declare  divi- 
dends on  and  provide  a  reserve  fund  that  shall  be  specially 
applicable  thereto.  At  least  one  tenth  of  the  amount  so  set 
aside  shall  be  carried  to  such  reserve  fund  until  the  same  shall 
amount  to  at  least  fifty  per  cent  of  the  paid-in  guarantee  stock. 

liegislation  §  641.  1.  Added  by  Stats.  1891,  p.  252,  as  §  642,  in  re- 
pealing Title  XVI  and  substituting  a  new  Title  XVI.  and  then  read: 
"642.  Profits  and  losses  shall  be  apportioned  at  least  annually,  and 
shall  be  apportioned  to  all  the  shares  in  each  series  outstanding  at  the 


641.  Profits  and  Losses.  Profits  and  losses  shall  be  appor- 
tioned at  least  annually,  and  shall  be  apportioned  to  all  shares 
in  each  class  at  the  time  of  such  apportionment,  according-  to 
the  actual  or  book  value  thereof.  If  the  guarantee  capital  herein 
provided  for  if  any  there  be,  together  with  the  reserve  fund,  or 
if  the  reserve  fund,  where  there  be  no  guarantee  capital,  shall 
not  equal  five  per  cent  of  the  outstanding  loans  at  the  time  of 
each  apportionment  of  profits,  the  directors  shall  set  aside,  as  a 
reserve  fund,  not  less  than  five  per  cent  of  the  net  profits 
accruing  since  the  last  prior  apportionment,  and  shall  continue 
so  to  do  until  said  fund  shall  amount  to  at  least  five  per  cent  of 
the  loans  in  force,  at  which  figure  said  fund  shall  thereafter  be 
maintained.  Said  reserve  fund  shall  at  all  times  be  available  to 
meet  losses  arising  from  any  source  not  heretofore  provided  to 
be  assumed  by  the  guarantee  capital.  Every  such  corporation 
having  a  paid-in  guarantee  capital  stock,  may  provide  in  their 
by-laws,  that  an  amount  not  exceeding  one  per  cent  per  annum 
on  the  average  loans  in  force,  shall  be  set  aside  from  and  out  of 
the  net  profits,  at  each  annual  distribution  thereof,  or  a  propor- 
tionate amount  at  each  semi-annual  distribution,  from  which  to 
declare  dividends  on  and  provide  a  reserve  fund  that  shall  be 
specially  applicable  thereto.  At  least  one-tenth  of  the  amount 
so  set  aside  shall  be  carried  to  such  reserve  fund  until  the 
same  shall  amount  to  at  least  [twenty-five]  per  cent  of  the 
paid-in  guarantee  stock[;  provided,  however,  that  no  guarantee 
stocl<  association  with  stock  and  reserve  equalling  the  amount 
required  by  law  need  maintain  a  reserve  in  excess  of  fifty  thou- 
sand dollars].  (In  effect  90  days  from  and  after  April  29,  1921. 
Stats.    1921,    Chap.    778.)  Civ.  Code,  1921. 


321  LAND  AND  BUILDING  CORPORATIONS.  §  64:2a 

time    of   such   apportionment,  according   to   the   actual   value   of   such 
shares  as  distinguished  from  their  withdrawal  value." 

2.  Amendment  by  Stats.  1901,  p.  387;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted,  renumbered,  and  amended  by  the  same  act.  See  ante.  Legis- 
lation Title  XVI.  The  original  code  §  641,  which  was  based  on  Stats. 
1861,  p.  567,  §§  5-18,  related  to  the  powers  and  object  of  land  and 
building  corporations. 

§  642.  Withdrawals.  A  stockholder  or  investor,  desiring 
to  withdraw  from  any  such  corporation  or  to  surrender  a  part 
or  all  of  his  stock,  or  investment  certificate,  may  do  so  by 
giving  thirty  days'  notice,  in  writing,  of  his  intention  or  desire 
so  to  do.  On  the  expiration  of  such  notice,  he  is  entitled  to 
receive  the  full  amount  paid  in  upon  the  stock  or  investment 
certificate  surrendered,  exclusive  of  the  entrance  or  with- 
drawal fee,  together  with  such  proportion  of  the  earnings 
thereon  as  the  by-laws  may  provide,  or  as  may  be  fixed  by 
the  board  of  directors ;  but  not  more  than  one  half  of  the 
monthly  receipts  in  any  one  month  must  be  applied  to  with- 
drawals for  that  month,  without  the  consent  of  the  board  of 
directors,  and  no  stockholder  must  be  permitted  to  withdraw 
whose  stock  is  pledged  to  the  corporation  as  security  for  a 
loan,  until  such  loan  is  fully  paid.  All  withdrawals  must  be 
paid  in  succession  in  the  order  that  the  notices  of  intention 
are  given.  Whenever  the  demands  of  withdrawing  stockhold-^ 
ers  or  investors  exceed  the  money  applicable  to  their  payment, 
the  notices  of  intention  to  withdraw  must  be  registered  in  the 
order  of  filing  and  payments  thereon  must  be  made  in  suc- 
cession, in  the  order  that  such  notices  were  filed  and  regis- 
tered. The  board  of  directors  may  permit  the  withdrawal  of 
a  part  of  the  accumulations  to  the  credit  of  a  stockholder  or 
member,  on  shares  of  installment  stock  not  issued  in  serial 
form,  without  thereby  reducing  the  number  of  shares  held  by 
him. 

Legislation  §  642.  Added  by  Stats.  1907,  p.  923,  in  repealing  Title 
XVI  and  substituting  a  new  Title  XVI.  The  original  code  §  642,  which 
provided  that  land  and  building  corporations  might  insure  the  lives  of 
members  and  debtors,  was  repealed  by  Stats.  1891,  p.  252,  in  repealing 
Title  XVI  and  substituting  a  new  Title  XVI,  the  §  642  of  this  latter 
act  being  amended  in  1907  and  renumbered  §  641,  q.  v.,  supra.  See 
ante.  Legislation  Title  XVI. 

§  642a.  Receipts  to  be  applied  to  demands  unpaid  for  year. 
Demands  unpaid  for  two  years;  business  may  be  taken  over. 
Whenever  an  application  for  withdrawal  of  free  shares  or  cer- 
tificates shall  have  been  on  file,  or  the  payment  of  matured 
shares  demanded,  and  either  shall  have  remained  unpaid  for  a 
period  of  one  year,  all  the  receipts  of  the  association  from 

Civ.  Code — 21 


§  644  CIVIL  CODE.  322 

dues,  interest,  premium,  loans  repaid,  and  the  proceeds  of  all 
other  investments,  shall,  after  the  payment  of  expenses  and 
creneral  indebtedness,  be  applied  toward  the  payment  of  with- 
drawals and  maturities ;  and  the  board  of  directors  or  the  offi- 
cial vested  by  law  with  powers  of  state  supervision  and  license 
may  direct  that  such  payments  shall  be  made  upon  a  ratable 
and  proportionate  basis.  Whenever  such  applications  or  de- 
mands, whether  heretofore  or  hereafter  made,  have  been  on 
file  and  remain  unpaid  in  whole  or  in  part  for  more  than  two 
years  the  official  vested  by  law  with  poTvers  of  state  super- 
vision and  license  may,  in  his  discretion,  forthwith  take  pos- 
session of  the  property  and  business  of  such  association,  and 
retain  such  possession  until  its  affairs  be  finally  liquidated  in 
the  manner  provided  by  law  for  the  liquidation  of  associations 
by  him. 

Legislation  §  642a.     Added  by  Stats.  1915,  p.  239. 

§  643.  Membership.  Any  person  of  full  age  and  sound 
mind  may  become  a  member  of  an  association  by  taking  one 
or  more  shares  therein  and  subscribing  to  the  by-laws,  and 
annexing  to  his  signature  his  post-office  address.  A  minor 
may  hold  shares  in  the  name  of  a  parent,  guardian,  or  next 
friend,  as  trustee.  The  shares  of  stock  in  any  such  corpora- 
tion held  by  any  person,  to  the  extent  of  one  thousand  dol- 
lars, shall  be  exempt  from  execution. 

Legislation  §  643.  1.  Enacted  Mareli  21,  1872,  as  §  648  (based  on 
Stats.  1861,  p.  567,  §  6),  and  then  read:  "Married  women  and  minors 
may  be  admitted  as  members  and  may  take  and  hold  shares  in  such 
corporations,  and  may  execute  all  necessary  instruments  and  give  all 
necessary  acquittances,  and  sell  and  transfer  their  shares,  in  like 
manner  as  other  members." 

2.  Repealed  bv  Code  Amdts.  1873-74,  p.  217   (as  §  648). 

3.  Added  by  Stats.  1891,  p.  256,  as  §  643,  in  repealing  Title  XVI  and 
substituting  a  new  Title  XVI. 

4.  Amendment  by  Stats.  1901,  p.  387;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the  same  act,  (1)  in  first  sentence,  changing 
"the"  to  "an"  before  "association";  (2)  in  second  sentence,  changing 
"the"  to  "a"  before  "parent";  (3)  in  final  sentence,  changing  "value" 
to  "extent"  before  "of  one  thousand  dollars."  See  ante.  Legislation 
Title  XVI. 

§644.  State  supervision  and  control.  All  building  and 
loan  associations,  as  in  this  title  defined,  doing  business  in  this 
state,  shall  be  under  the  supervision  and  control  of  such  offi- 
cial or  officials  as  are  by  law  vested  therewith;  and  except  in 
the  manner  provided  in  this  title,  no  corporation,  firm,  or 
association  shall  conduct  or  carry  on  the  business  of  accumu- 
lating the  savings  of  its  shareholders,  members,  or  investors, 


323  LAND  AND  BUILDING  CORPORATIONS.  §  645 

and  loaning  such  accumulations  to  them,  in  the  manner  of 
building  and  loan  associations. 

Legislation  §  644.  Added  by  Stats.  1907,  p.  923,  in  repealing  Title 
XVI  and  substituting  a  new  Title  XVI.  The  original  code  §  644 
(based  on  Stats.  1861,  p.  567,  §  2;  Stats.  1861,  p.  567,  §  19;  Stats.  1867- 
68,  p.  539,  §  1),  which  provided  what  the  by-laws  of  land  and  building 
corporations  should  specify,  was  repealed  by  Stats.  1891,  p.  252,  in 
repealing  Title  XVI  and  substituting  a  new  Title  XVI,  the  §  644  of 
this  latter  act  being  amended  in  1907,  and  renumbered  §  645,  q.  v., 
infra.     See  ante,  Legislation  Title  XVI. 

§  645.  Annual  report.  Every  association  organized  under 
the  provisions  of  this  title,  and  every  other  association  doing 
a  similar  business,  shall  annually  make  a  full  report,  in  writ- 
ing, of  the  affairs  and  condition  of  such  corporation,  within 
thirty  days  after  its  annual  meeting,  to  the  of^cial  or  officials 
vested  with  powers  of  state  supervision  and  license.  Such 
reports  shall  be  verified  by  the  oath  of  the  officers  making  the 
same,  and  a  copy  of  the  same  shall  be  delivered  to  every  stock- 
holder, from  the  office  of  the  corporation,  who  may  call  for 
such  report.  Every  association  shall  make  any  further  re- 
ports Avhich  the  said  official  or  officials  may  require,  and  in  such 
form  and  as  to  such  matters  relating  to  the  conduct  of  the 
business  of  the  association  as  such  official  or  officials  may  des- 
ignate. Any  willfully  false  statement  in  making  and  verify- 
ing said  report  shall  be  perjury.  Any  such  association  which 
shall  fail  to  furnish  the  said  official  or  officials  any  such  report 
required,  within  thirty  days  after  demand,  shall  forfeit  the 
sum  of  ten  dollars  per  day  for  every  day  such  report  shall  be 
delayed  or  withheld,  which  may  be  recovered  in  an  action 
brought  by  the  attorney-general  in  the  name  of  the  people 
of  this  state ;  and  all  moneys  so  recovered  shall  be  pdid  to  the 
treasurer  of  this  state,  who  shall  pay  the  same  into  such  fund 
as  may  be  provided  by  law,  for  the  purposes  of  the  official  or 
officials  vested  with  power  of  supervision  and  license. 

Legislation  §645.  1.  Enacted  March  21,  1872  (based  on  Stats.  1861, 
p.  567,  §9),  and  then  read:  "The  secretary  of  any  such  corporation 
must,  once  in  each  year  during  the  existetice  of  the  corporation,  pre- 
pare a  full  and  explicit  statement  of  the  financial  affairs  thereof, 
comprising  a  balance-sheet,  statements  of  receipts  and  expenditures, 
profit  and  loss,  and  assets  and  liabilities,  which  must  be  audited  and 
verified  by  two  competent  persons  (not  directors),  ele'cted  by  the  gen- 
eral body  of  shareholders,  and  be  countersigned  by  the  president  and 
secretary.  A  copy  o-f  such  statement  must  be  printed  and  circulated 
among  the  members,  and  appear  immediately  after  the  annual  meeting 
of  the  corporation  daily  at  least  one  week,  or  weekly  at  least  four 
weeks,  in  one  or  more  newspapers  published  at  the  place  of  the  prin- 
cipal  business  of  the  corporation." 

2.  Repealed  by  Stats.  1891,  p.  252,  in  repealing  Title  XVI,  and  re'-- 
enacted,   amended,   and  renumbered   §  644  by  the  same   act,   and   then 
read:  "644.     Every  association  organized  under  the  provisions  of  this 


h 


§  646  CIVIL  CODE.  324 

act,  and  every  other  association  doing  a  like  business,  shall  annu- 
ally make  a  full  report,  in  writing,  of  the  affairs  and  condition  of 
such  corporation,  within  thirty  days  after  its  annual  meeting,  to  the 
bank  commissioners  of  this  state.  Such  report  shall  be  verified  by 
the  oath  of  the  officers  making  the  same,  and  a  copy  of  the  same  shall 
be  delivered  to  eveTy  stockholder,  from  the  office  of  the  corporation,  who 
may  call  for  such  report.  Every  association  shair  make  any  further 
reports  which  the  said  commissioners  may  require,  and  in  such  form 
and  as  to  such  matters  relating  to  the  condition  and  conducting  of  the 
business  of  the  association  as  such  commissioners  may  designate;  and 
said  bank  commissioners  may  at  any  time  examine  into  the  afi'airs  of 
any  and  every  of  said  associations.  Any  willful  false  swearing  in 
making  and  verifying  said  reports  shall  be  deemed  perjury.  Any  such 
association  which  shall  fail  to  furnish  the  bank  commissioners  any 
such  report  required,  within  thirty  days  after  demand,  shall  forfeit 
the  sum  of  ten  dollars  per  day  for  every  day  such  report  shall  be  de- 
layed or  witheld;  which  may  be  recovered  in  an  action  brought  by 
the  attorney-general  in  the  name  of  the  people  of  this  state;  and  all 
moaeys  so  recovered  shall  be  paid  to  the  treasurer  of  the  state,  who 
shall  pay  the  same  into  the  "bank  commissioners'  fund.'  The  state 
bank  commissioners  shall  annually  publish  a  full  report  of  the  condi- 
tion of  all  associations  formed  under  the  provisions  of  this  title,  and 
every  other  association  doing  a  like  business  in  this  state,  in  the  same 
manner  as  they  are'  now  required  to  do  in  reference  to  savings  banks." 
3.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted,  amended,  and  renumbered  §  645,  by  the  same  act.  See  ante, 
Legislation  Title  XVI. 

§  646.  Building  and  loan  associations  must  make  deposit. 
Guarantee  fund.  License.  Securities  may  be  substituted. 
Penalty  for  non-compliance.  Every  building  and  loan  associa- 
tion, and  every  other  corporation,  association  or  society  or- 
ganized under  and  by  virtue  of  the  laAvs  of  any  other  state  or 
territory  or  of  any  foreign  country,  for  the  purpose  of  con- 
ducting and  carrying  on  a  business  of  a  character  similar  to 
that  authorized  by  this  title,  or  vhose  by-laws,  rules,  pros- 
pectus, contracts  or  methods  of  business  provide  for  the  con- 
ducting or  carrying  on  the  business  of  accumulating  the 
periodical  payments  or  savings  of  its  shareholders,  members 
or  investors  in  the  manner  of  building  and  loan  associa- 
tions, or  as  authorized  and  provided  in  this  title,  desiring 
to  enter  the  state  of  California  for  the  transaction  of  busi- 
ness or  for  selling  its  bonds,  debentures,  certificates,  shares 
of  stock,  shares  of  membership,  contracts  or  other  simi- 
lar securities,  must  first  comply  with  the  requirements  of  sec- 
tions four  hundred  five  and  four  hundred  eight  of  the  Civil 
Code  and  immediately  thereafter  deposit  with  the  official 
vested  by  law  with  state  supervision  and  license  not  less  than 
fifty  thousand  dollars  in  lawful  money  of  the  United  States 
or  "in  bonds  of  the  United  States  or  of  the  state  of  California, 
or  of  any  county,  municipality  or  school  district  of  said  state, 
or  of  any  public  utility  corporation,  or  of  any  irrigation  dis- 
trict in  said  state,  the  bonds  issued  by  which  district  are  legal 


325  LAND  AND  BUILDING  CORPORATIONS.  §  646 

investments  for  savings  banks  or  any  notes  or  bonds  secured 
by  mortgage  or  deed  of  trust  payment  of  which  is  guaranteed 
by  a  policy  of  mortgage  insurance,  or  mortgage  participation 
certificates,  issued  by  a  mortgage  insurance  company  in  ac- 
cordance with  the  provisions  of  chapter  eight,  title  two,  part 
four  of  division  first  of  the  Civil  Code  or  in  lieu  thereof  prom- 
issory notes  secured  by  first  mortgages  or  deeds  of  trust  upon 
real  estate  located  within  this  state,  satisfactory  to  the  official 
vested  by  law  with  state  supervision  and  license  of  building 
and  loan  associations,  all  duly  assigned  or  indorsed  in  blank, 
to  be  held  by  the  said  official  as  a  guarantee  fund  for  the  pro- 
tection and  indemnity  of  residents  of  the  state  of  California 
who  shall  invest  in  any  of  its  bonds,  debentures,  shares,  con- 
tracts, agreements  or  other  securities,  or  Avith  whom  it  shall 
do  business. 

It  must  also  procure  from  the  official  vested  by  law  with 
state  supervision  and  license  of  building  and  loan  associations, 
the  license  provided  for  building  and  loan  and  similar  corpo- 
rations and  associations,  paying  the  statutory  fee  therefor 
before  entering  upon  the  transaction  of  business,  and  annually 
renew  the  same. 

With  the  consent  of  the  said  official  vested  by  law  with  state 
supervision  and  license  any  of  the  securities  deposited  as 
herein  provided  may  be  withdrawal!  at  any  time  upon  the  sub- 
stitution and  deposit  of  others  of  form  and  character  herein 
specified  and  of  like  or  greater  net  value,  so  long  as  the 
aggregate  net  convertible  value  of  all  equals  or  exceeds  the 
amount  named  herein.  The  fund  thus  created  is  not  to  be 
foreclosed  or  realized  upon  except  for  the  liquidation  of  a 
final  judgment  in  favor  of  residents  of  California  who  were 
investors  in  any  of  the  above-mentioned  securities  of  such 
foreign  company,  corporation  or  association,  and  then  only 
after  certified  proof  thereof  has  been  filed  with  the  cus- 
todian. 

Except  as  above  provided  securities  deposited  as  herein 
specified  shall  not  be  Avithdrawn  until  satisfactory  proof  of 
the  liquidation  of  all  liabilities  to  residents  of  California, 
approved  by  the  official  vested  by  law  with  state  supervision 
and  license,  shall  be  filed  with  the  custodian,  when  all  may 
then  be  withdrawn. 

Any  person  or  persons  who  shall  be  found  in  the  state,  as 
principal,  agent,  solicitor,  or  in  any  other  capacity,  solicit- 
ing or  conducting  the  business  of  selling,  disposing  of,  or 
taking  or  soliciting  subscriptions  for  the  sale  of  any  of  the 
forms  of  bonds,  debentures,  shares,  contracts,  agreements  or 
other  securities  of  any  such  foreign  company,  corporation 
or  association  which  has  not  complied  with  all  the  require- 


§  647  CIVIL  CODE.  326 

ments  of  this  section  shall  be  deemed  guilty  of  a  misde- 
meanor punishable,  upon  conviction,  by  a  fine  of  not  less 
than  one  hundred  nor  more  than  one  thousand  dollars  or 
by  imprisonment  in  the  county  jail  for  not  less  than  one 
nor  more  than  twelve  months,  or  by  both  such  fine  and  im- 
prisonment. [Amendment  approved  1915 ;  Stats.  1915, 
p.  573.] 

Legislation  §  646.  1.  Added  by  Stats.  1891,  p.  252,  as  §  645,  in 
repealing  Title  XVI  and  substituting  a  new  Title  XVI,  and,  besides 
the  difference  in  the  section  number,  differed  from  the  amendment 
of  1907  (see  post),  in  that  it  had  (1)  in  first  sentence,  (a)  the  word 
"mutual"  after  "No"  in  first  line,  (b)  "secretary  of  state"  instead 
of  "treasurer"  after  "controller  or,"  and  (c)  "or  United  States  or 
municipal  bonds"  instead  of  "or  in  United  States  bonds  or  municipal 
bonds";  (2)  at  end  of  second  sentence  (the  end  of  the'  first  paragraph 
of  the  present  section),  the  words  "in  lieu  thereof"  instead  of  "therefor." 

2.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted,  renumbered,  and  amended  by  the  same  act.  See  ante,  Legis- 
lation Title  XVI.  As  re-enacted  in  1907  the  section  read:  "No  build- 
ing and  loan  association,  or  company,  association,  or  corporation, 
organized  under  the  laws  of  any  other  state  or  territory,  to  carry  on 
a  business  of  a  like  character  to  that  authorized  by  this  title,  shall 
be  allowed  to  do  business,  or  to  sell  their  stock  in  this  state,  without 
first  having  deposited  with  the'  state  controller  or  treasurer  the  sum  of 
fifty  thousand  dollars  in  money,  or  in  United  States  bonds  or  municipal 
bonds  of  this  state',  or  in  mortgages  upon  real  estate  located  within 
this  state,  as  a  guarantee  fund  for  the  protection  and  indemnity  of 
residents  of  the  state  of  California,  with  whom  such  companies,  asso- 
ciations, or  corporations  shall  do  business;  the  fund  so  deposited  to 
be  paid  by  the  custodian  thereof,  to  the  residents  of  California  only, 
and  not  then  until  proof  of  claim  by  final  judgment  has  been  filed 
with  the  custodian  of  said  fund  against  such  foreign  company,  asso- 
ciation, or  corporation.  Any  of  the  securities  so  deposited  may  be 
withdrawn  at  any  time  upon  others  herein  provided  for,  of  like  amount, 
being  substituted  therefor.  Any  person  or  persons  who  shall  be  found 
in  this  state  as  agent,  or  in  any  other  capacity,  representing  such 
foreign  company,  association,  or  corporation,  which  has  not  complied 
with  the  provisions  of  this  section,  shall  be  deemed  gviilty  of  a  mis- 
demeanor, and  upon  conviction  shall  be  punished  by  a  fine  not  exceed- 
ing one  thousand  dollars,  or  by  imprisonment  in  the  county  jail,  not 
exceeding   twelve    months,   or   by   both   such   fine    and   imprisonment." 

3.  Amended  by  Stats.  1915,  p."  573. 

The  original  §646  which  related  to  the  liability  of  shareholders  in 
land  and  building  corporations  for  debts  was  repealed  in  1873-74,  page 
217. 

§  647.  Building-  and  loan  associations  may  invest  in  cer- 
tain bonds.  Approval  by  official  vested  with  power  of 
supervision.  Any  building  and  loan  association  may  invest 
in  or  loan  upon  bonds  of  the  United  States,  of  the  state  of 
California,  or  of  any  county,  municipality  or  school  district 
of  said  state,  or  of  any  public  utility  corporation,  and  may 
also  invest  in  or  loan  upon  notes  or  bonds  secured  by  mort- 
gage or  deed  of  trust,  payment  of  which  is  guaranteed  by 


647a.  [New.]  Building  and  Loan  Associations,  Merger  of. 
Any  two  or  more  building  and  loan  as.sociations  may  unite  and  be- 
come incorporated  in  one  body,  with  or  without  any  dissolution  or 
division  of  the  funds  of  either  of  them;  or  any  such  corporation,  as- 
sociation or  society  may  transfer  its  engagements,  funds  and 
property  to  any  other  like  corporation,  as>soeiation  or  society  upon 
such  terms  as  may  be  agreed  by  an  unanimous  vote  of  their  re- 
spective boards  of  directors,  ratified  by  the  written  consent  of 
the  shareholders  holding-  more  than  two-thirds  of  the  shares  in 
force  in  each  of  the  respective  contracting  associations;  provided, 
however,  that  any  such  con.sideration  or  transfer  must  also  be 
approved  by  the  official  or  officials  vested  by  law  with  powers 
of  state  supervision  and  license.  (In  effect  90  days  from  and  after 
April  22,   1919.     Stats.   1919,  Chap.   33.)  Civil   Code,  1919. 


327  LAND  AND  BUILDING  CORPORATIONS.  §  648 

a  policy  of  mortgage  insurance,  or  mortgage  participation 
certificates,  issued  by  a  mortgage  insurance  company  in  ac- 
cordance with  the  provisions  of  chapter  VIII,  of  title  II  of 
part  IV  of  division  first  of  the  Civil  Code,  the  total  of  which 
investments  at  any  time  shall  not  exceed  twenty-five  per 
centum  of  the  assets  of  such  association ;  provided,  however, 
that  any  such  loan  or  investment  made  by  such  association 
must  be  approved  by  the  official,  or  officials,  vested  with  the 
powers  of  supervision  and  license.  [Amendment  approved 
1915;  Stats.  1915,  p.  317.] 

Legislation  §  647.  1.  Added  by  Stats.  1907,  p.  923,  in  repealing  Title 
XVI  and  substituting  a  new  Title  XVI.  See  ante,  Legislation  Title 
XVI.  The  original  code  §  647  provided  for  the  consolidation  and  trans- 
fer of  corporation  business  and  property,  and  was  repealed  by  Stats. 
1891,  p.  252,  in  repealing  Title  XVI,  the  same  act  substituting  a  new 
§  647,  which  provided  that  all  building  and  loan  corporations  doing 
business  in  this  state  should  be  subject  to  the'  provisions  of  this  title 
relating  to  bank  commissioners.  As  enacted  in  1907  the  section  read: 
"Any  building  and  loan  association  may  invest  in  or  loan  upon  bonds 
of  the  United  States,  of  the  state'  of  California,  or  of  the  counties  or 
municipalities  or  school  districts  of  said  state,  but  not  to  exceed 
twenty-five  per  cent  of  its  capital." 
2,  Amended  by  Stats.  1915,  p.  317. 

§  648.     Building-   and   loan   associations,   to   include   Mrhat. 

The  name  ''building  and  loan  associations,"  as  used  in  this  title 
shall  include: 

First.  Corporations  formed  for  the  purpose  of  receiving 
money  from,  and  loaning  money  to,  their  members  only. 

Second.  Corporations,  associations,  companies,  copartner- 
ships, and  individuals  transacting  the  business  of  issuing  or 
selling  bonds,  debentures,  certificates,  shares  of  stock,  or  other 
papers,  by  whatever  names  said  instruments  may  be  desig- 
nated, whether  said  instruments  are  issued  for  money  paid  in 
advance  or  for  money  to  be  paid  in  installments,  but  with  an 
intent,  either  implied  or  expressed,  that  the  proceeds  or  accu- 
mulated installments  thereof  and  thereon  are  to  be  with- 
drawable or  repayable,  with  accumulated  profits,  at  some 
future  fixed,  or  indefinite  date  of  maturity ;  provided  always, 
that  this  section  does  not  include  persons,  copartnerships  or 
corporations  engaged  in  any  kind  of  banking  business. 
[Amendment  approved  1909 ;  Stats.  1909,  p.  609.] 

Legislation  §  648.  1.  Added  by  Stats.  1891,  p.  252,  in  repealing 
Title  XVI  and  substituting  a  new  Title  XVI,  and  then  read:  "The  name 
'building  and  loan  association,'  as  used  in  this  act,  shall  include  all  cor- 
porations, societies,  or  organizations,  or  associations  doing  a  savings  and 
loan  or  investment  business  on  the  building  society  plan,  viz.:  loaning 
its  funds  to  its  members  or  its  shareholders,  and  whether  issuing  cer- 
tificates of  stock  which  mature  at  a  time  fixed  in  advance  or  not." 

2.  Repealed  by  Stats.  1907,  p.  923,  in  repealing  Title  XVI,  and  re- 
enacted  and  amended  by  the'  same  act,  differing  from  the  amendment 


§  648a  .  CIVIL  CODE.  328 

of  1909,  in  that  it  (1)  had  in  introductory  paragraph  "association"  in- 
stead of  "associations";  (2)  in  subd.  Second,  (a)  had  "instrument" 
instead  of  "instruments"  before  "may  be  designated,"  and  (b)  did  not 
have  the  clause  beginning  "but  with  an  intent"  and  ending  "date  of 
maturity,"  before  the  proviso.     See  ante,  Legislation  Title  XVI. 

3.  Amended  by  Stats.  1909,  p.  609.  The  original  code  §  648  provided 
that  married  women  and  minors  might  become  members  and  hold 
shares  in  land  and  building  corporations,  the  present  §  643  being  an 
amendment  of  that  section,  q.  v.,  ante. 

§  6481/2.  Act  imposing  tax  on  stocks  not  applicable.  [Re- 
pealed 1905;  Stats.  1905,  p.  753.] 

Legislation  §  6481/2.  1.  Added  by  Stats.  1891,  p.  257,  in  repealing 
Title  XVI  and  substituting  a  new  title  XVI.  See  ante.  Legislation 
Title  XVI. 

2.  Repeal  by  Stats.  1901,  p.  387;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Repealed  by  Stats.  1905,  p.  753;  the  code  commissioner  saying, 
"This  section  is  no  longer  necessary;  the  statute  referred  to  therein, 
to  wit:  that  of  1877-78,  page  955,  having  been  repealed  (Stats.  1897, 
p.  243).     The  section   is,  therefore,  repealed." 

§  648a.  Formation  of  building"  and  loan  associations.  Re- 
incorporation of  existing  associations.  Building  and  loan  as- 
sociations may  be  formed  under  this  title  with  or  without 
guarantee  or  other  capital  stock,  with  all  the  rights,  powers 
and  privileges  and  subject  to  all  the  restrictions  and  liabilities 
set  forth  in  this  title.  If  formed  without  any  capital  stock  or 
with  guarantee  capital  stock  only,  the  working  capital  may 
be  accumulated  by  the  issue  of  membership  shares,  units  or 
certificates  having  a  paid-up  or  ultimate  matured  installment 
value  of  one  hundred  or  two  hundred  dollars  each,  and  en- 
titled to  all  the  rights,  powers  and  privileges  and  subject  to 
all  the  restrictions  and  liabilities  provided  in  this  title  for 
shares  of  authorized  capital  stock  of  a  similar  class.  Any 
building  and  loan  association  heretofore  formed  may  reincor- 
porate under  the  provisions  pf  this  section  and  may  substitute 
membership  shares,  units  or  certificates  of  similar  classes  for 
its  outstanding  or  authorized  shares  of  capital  stock,  other 
than  guarantee  capital  stock,  by  the  unanimous  vote  of  its 
board  of  directors  and  by  a  vote  or  written  assent  of  the  stock- 
holders representing  at  least  two  thirds  of  the  subscribed 
capital  stock  and  by  filing  amended  articles  of  incorporation 
with  the  county  clerk  of  the  county  in  which  the  corporation's 
principal  place  of  business  is  located  and  a  copy  of  said 
amended  articles,  certified  by  such  county  clerk,  in  the  office 
of  the  secretary  of  state. 

Legislation  §  648a.     Added  by  Stats.  1909,  p.  721. 


648a.  Formation  of  Building  and  Loan  Associations;  Rein- 
corporation of  Existing  Associations.  Building  and  loan  associa- 
tions may  be  formed  under  this  title  with  or  without  guarantee 
or  other  capital  stock,  with  all  the  rights,  powers  and  privileges 
and  subject  to  all  the  restrictions  and  liabilities  set  forth  in  this 
title.  If  formed  without  any  capital  stock  or  with  guarantee 
capital  stock  only,  the  working  capital  may  be  accumulated  by 
the  issue  of  membership  shares,  units  or  certificates  having  a 
paid-up  or  ultimate  matured  installment  value  of  one  hundred 
or  two  hundred  dollars  each,  and  entitled  to  all  the  rights,  powers 
and  privileges  and  subject  to  all  the  restrictions  and  liabilities 
provided  in  this  title  for  shares  of  authorized  capital  stock  of  a 
similar  class.  Any  building  and  loan  association  heretofore 
formed  may  reincorporate  under  the  provisions  of  this  section 
and  may  substitute  membership  shares,  units  or  certificates  of 
similar  classes  for  its  outstanding  or  authorized  shares  of  capital 
stock,  other  Than  guarantee  capital  stock  [by  amending  its 
articles  of  incorporation  in  the  manner  prescribed  by  section 
three  hundred  sixty-two  of  this  code,  except  that  such  amended 
articles  of  incorporation  must  be  adopted  by  a  unanimous  vote  of 
the  board  of  directors.]  (In  effect  90  days  from  and  after  April 
29.    1921.     Stats.    1921,    Chap.    134.)  Civ.  Code,  1921. 


329  COLLEGES  AND  SEMINARIES  OK  LEAKNING.  §  649 

TITLE  XVII. 
Colleges  and  Seminaries  of  Learning-. 

§  649.     Incorporation   of  colleges.     Trustees.     Capital  stock. 

§  650.     Classification  of  trustees.     Quorum.     Powers. 

§  651.     Existing  institutions  may  reincorporate  under  this  act. 

Legislation  Title  XVII.  Added  by  Stats.  1885,  p.  132,  the  title  of 
the  act  reading,  "An  act  to  amend  the  Civil  Code  by  adding  to  part 
four,  division  first,  a  new  title,  providing  for  the  incorporation  of  col- 
leges and  seminaries  of  learning,"  the  title  then  containing  §§  649-651. 

§  649.     Incorporation  of  colleges.     Trustees.     Capital  stock. 

Any  number  of  persons  who  may  desire  to  establish  a  college 
or  seminary  of  learning  may  incorporate  themselves  as  pro- 
vided in  this  part,  except  that  in  lieu  of  the  requirements  of 
section  290,  the  articles  of  incorporation  shall  contain: 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  organized. 

3.  The  place  where  the  college  or  seminary  is  to  be  con- 
ducted. 

4.  The  number  of  its  trustees,  which  shall  not  be  less  than 
five  nor  more  than  thirty  and  the  names  and  residences  of  the 
trustees.  The  term  for  whic*h  the  trustees  named  and  their 
successors  are  to  hold  office  may  also  be  stated.  If  it  is  de- 
sired that  the  trustees,  or  any  portion  of  them,  shall  belong 
to  any  organization,  society,  or  church,  such  limitation  shall  be 
stated. 

5.  If  said  corporation  is  to  have  capital  stock,  the  amount  of 
its  capital  stock  and  the  number  of  shares  into  which  it  is 
divided,  and  the  amount  actually  subscribed  and  by  whom. 
[Amendment  approved  1911;  Stats.  1911,  p.  583.] 

Legislation  §649.     1.  Added  by  Stats.  1885,  p.  133. 

2.  Amended  by  Stats.  1909,  p.  30,  in  subd.  4,  substituting  "twenty-five" 
for  "fifteen."  As  amended  in  1909  the  section  read:  "Any  number 
of  persons  who  may  desire  to  establish  a  college  or  seminary  of  learn- 
ing may  incorporate  themselves  as  provided  in  this  part,  except  that 
in  lieu  of  the  requirements  of  section  two  hundred  [and]  ninety,  the 
articles  of  incorporation  shall  contain:  1.  The  name  of  the  corporation. 
2.  The  purjiose  for  which  it  is  organized.  3.  The  place'  where  the  col- 
lege or  seminary  is  to  be  conducted.  4.  The  number  of  its  trustees, 
which  shall  not  be  less  than  five  nor  more'  tha9  twenty-five,  and  the 
names  and  residences  of  the  trustees.  The  term  for  which  the  trustees 
pamed  and  their  successors  are  to  hold  office  may  also  be  stated.  If 
it  is  desired  that  the  trustees,  or  any  portion  of  them,  shall  belong  to 
any  organization,  society,  or  church,  such  limitation  shall  be  stated. 
5.  The  names  of  those  wlio  liave  subscribed  money  or  property  to 
assist  in  founding  the  seminary  or  college,  together  witlj  tlie  amount  of 
money  and  description  of  property  subscribed." 

3.  Amended  by  Stats.  1911,  p.  583. 


§  650  CIVIL  CODE.  330 

§  650.  Classification  of  trustees.  Quorum.  Powers.  Un- 
less otherwise  provided  in  the  articles  of  incorporation  the 
board  of  trustees  shall,  as  soon  as  organized,  so  classify  them- 
selves that  one-fifth  of  their  number  shall  go  out  of  office  every 
year,  and  thereafter  the  trustees  shall  hold  office  for  five  years. 
A  ma.iority  of  the  trustees  shall  constitute  a  quorum  for  the 
transaction  of  business,  except  where  the  number  of  trustees 
exceeds  thirteen  they  may,  in  the  by-laws,  provide  that  not  less 
than  seven  shall  constitute  a  quorum.  The  office  of  the  corpo- 
ration shall  be  at  the  college  or  seminary  or  at  such  place  as 
shall  be  designated  by  the  board  of  trustees. 

The  trustees  shall  have  the  power : 

1.  To  elect,  by  ballot,  annually  one  of  their  number  as  presi- 
dent of  the  board. 

2.  Upon  the  death,  removal  out  of  the  state,  or  other  vacancy 
in  the  office,  or  expiration  of  the  term  of  any  trustee,  to  elect 
another  in  his  place  who  shall  hold  office  for  the  time  and 
under  the  conditions  prescribed  in  the  by-laws  of  the  corpora- 
tion ;  provided,  that  where  there  are  graduates  of  the  institu- 
tion, such  graduates  may,  under  such  rules  as  the  board  shall 
prescribe,  nominate  persons  to  fill  vacancies  in  the  board  of 
trustees.  Such  nominations  shall  be  considered  by  the  board, 
but  it  may  reject  any  or  all  such  nominations,  and  of  its  own 
motion  appoint  others. 

3.  To  elect  additional  trustees ;  provided,  the  Avhole  number 
elected  shall  never  exceed  thirty  at  am*  one  time. 

4.  To  declare  vacant  the  seat  of  any  trustee  who  shall  absent 
himself  from  eight  succeeding  meetings  of  the  board: 

5.  To  receive  and  hold,  by  purchase,  gift,  devise,  bequest,  or 
grant,  real  or  personal  property  for  educational  purposes 
connected  with  the  corporation,  or  for  the  benefit  of  the 
institution. 

6.  To  sell,  mortgage,  lease  and  otherwise  use  and  dispose  of 
the  property  of  the  coriDoration  in  such  manner  as  they  shall 
deem  most  conducive  to  the  prosperity  of  the  corporation. 

7.  To  direct  and  prescribe  the  course  of  study  and  discipline 
to  be  observed  in  the  college  or  seminary. 

8.  To  appoint  a  president  of  the  college  or  seminary,  who 
shall  hold  his  office  during  the  pleasure  of  the  trustees. 

9.  To  appoint  such  professors,  tutors,  and  other  officers  as 
they  shall  deem  necessary,  who  shall  hold  their  offices  during 
the  pleasure  of  the  trustees. 

10.  To  grant  such  literary  honors  as  are  usually  granted  by 
any  university,  college,  or  seminary  of  learning  in  the  United 
States  and  in  testimony  thereof  to  give  suitable  diplomas  under 
their  seal,  and  the  signature  of  such  officers  of  the  corporation 
and  the  institution  as  they  shall  deem  expedient. 


331  COLLEGES  AND  SEMINARIES  OF  LEARNING.        §  650 

11.  To  fix  salaries  of  the  president,  professors,  and  other 
officers  and  employees  of  the  college  or  seminary. 

12.  Subject  to  the  consent  and  approval  of  the  organization, 
society  or  church  to  which  it  is  required  by  the  articles  of  in- 
corporation that  said  trustees  shall  belong,  to  make  all  by-law^ 
and  ordinances  necessary  and  proper  to  carry  into  effect  the 
preceding  powers  and  necessary  to  advance  the  interests  of  the 
college  or  seminary ;  provided,  that  no  by-laws  or  ordinances 
shall  conflict  wath  the  constitution  or  laws  of  the  United  States; 
or  of  this  state.  [Amendment  approved  1913 ;  Stats.  1913, 
p.  400.] 

Legislation  §  650.     1,  Added  by  Stats.  1885,  p.  133. 

2.  Amended  by  Stats.  1909,  p.  589,  (1)  in  second  paragraph,  adding 
"the"  before  "power";  (2)  in  siibd.  3,  changing  "fiftee'n"  to  "twenty- 
five";  (3)  in  subd.  12,  changing  "ordinance"  tc  "ordinances"  in  the 
proviso.  As  amended  in  1909  the  section  read:  "Unless  otherwise  pro- 
vided in  the  articles  of  incorporation  the  board  of  trustees  shall,  as 
soon  as  organized,  so  classify  themselves  that  one  fifth  of  their  num- 
ber shall  go  out  of  office  every  year,  and  thereafter  the  trustee's  shall 
hold  office  for  five  years.  A  majority  of  the  trustees  shall  constitute" 
a  quorum  for  the  transaction  of  business,  and  the  office  of  the  cor- 
poration shall  be  at  the  college  or  seminary.  The'  trustees  shall  have 
the  power:  1.  To  elect,  by  ballot,  annually  one  of  their  number  as 
president  of  the  board.  2.  Upon  the  death,  removal  out  of  the  state', 
or  other  vacancy  in  the  office,  or  expiration  of  the  term  of  any  trustee, 
to  elect  another  in  his  place;  provided,  that  where  there  are  graduates 
of  the  institution,  such  graduates  may,  under  such  rules  as  the  board 
shall  prescribe,  nominate  persons  to  fill  vacancies  in  the  board  of 
trustees.  Such  nominations  shall  be  considered  by  the  board,  but  it 
may  reject  any  or  all  such  nominations,  and  of  its  own  motion  appoint 
others.  3.  To  elect  additional  trustees;  provided,  the  whole  number 
elected  shall  never  exceed  twenty-five  at  any  one  time.  4.  To  declare 
vacant  the  seat  of  any  trustee  who  shall  absent  himself  from  eight 
succeeding  meetings  of  the  board.  5.  To  receive  and  hold,  by  pur- 
chase, gift,  devise,  bequest,  or  grant,  real  or  personal  property  for  edu- 
cational purposes  connected  with  the  corporation,  or  for  the  benefit  of 
the  institution.  6.  To  sell,  mortgage,  lease  and  otherwise  use  and  dis- 
pose of  the  property  of  the'  corporation  in  such  manner  as  they  shall 
deem  most  conducive  to  the  prosperity  of  the  corporation.  7.  To  di- 
rect and  prescribe  the  course  of  study  and  discipline  to  be  observed  in 
the  college  or  seminary.  8.  To  appoint  a  president  of  the  college  or 
seminary,  who  shall  hold  his  office  during  the  pleasure  of  the  trustees. 
9.  To  appoint  such  professors,  tutors,  and  other  officers  as  they  shall 
deem  necessary,  who  shall  hold  their  offices  during  the'  pleasure  of  the 
trustees.  10.  To  grant  such  literary  honors  as  are  usually  granted  by 
any  university,  college,  or  seminary  of  learning  in  the  United  States 
and  in  testimony  thereof  to  give  suitable  diplomas  under  their  seal, 
and  the  signature  of  such  officers  of  the  corporation  and  the  institution 
as  they  shall  deem  expedient.  11.  To  fix  salaries  of  the  president 
professors,  and  other  officers  and  employees  of  the  college  or  seminary. 
12.  To  make  all  by-laws  and  ordinances  necessary  and  proper  to  carry 
into  effect  the  preceding  powers  and  necessary  to  advance  the  interests 
of  the  college  or  seminary;  provided,  that  no  by-laws  or  ordinances 
shall  conflict  with  the'  constitution  or  laws  of  the  United  States,  or  of 

3.  Amended  by  Stats.  1913  p.  400. 


§  652  cmL  CODE.  332 

§  651.  Existing  institutions  may  reincorporate  under  this 
act.  Any  educational  corporation,  or  body  claiming  to  be 
such,  now  existing,  may,  by  a  unanimous  vote  of  those  of  its 
trustees  present  at  a  special  meeting  called  for  that  purpose, 
and  of  which  due  notice  shall  be  given  to  each  trustee,  convey 
all  its  proi^erty,  rights,  and  franchises,  to  a  corporation  organ- 
ized under  this  title.  The  fact  that  due  notice  of  the  meeting 
was  given  to  each  trustee  shall  be  conclusively  proven  by  the 
entries  in  the  minutes  of  the  corporation  or  body  making  the 
conveyance.  Said  minutes  shall  be  certified  to  be  correct  by 
the  president  and  secretary. 

Legislation  §  651.     Added  by  Code  Amdts.  1885,  p.  134. 


TITLE  XVIII. 
Consolidation  of  Colleges  and  Institutions  of  Higher  Education. 

§  652.     Consolidation  of  colleges,  manner  of.     Trustees,  number  of. 
§  653.     Transfer    of    property.     Indebtedness.     Specific    grants.     Dissolu- 
tion. 

Legislation  Title  XVIII.  Added  by  Stats.  1893,  p.  4,  the  title  of  the 
act  reading.  "An  Act  to  amend  the  Civil  Code  by  adding  to  Part 
IV,  Division  First,  a  new  title',  providing  for  the  consolidation  of  col- 
leges and  institutions  of  higher  education,"  the  title  then  containing 
§§  652,  653. 

§  652.  Consolidation  of  colleges,  manner  of.  Trustees, 
number  of.  Whenever  any  benevolent,  religious  or  fraternal 
organization  or  society,  having  a  grand  lodge,  assembly,  con- 
ference or  other  legislative  or  representative  head  in  the  state 
of  California,  having  two  or  more  colleges  or  institutions  of 
higher  education  under  its  patronage,  shall,  for  the  purpose  of 
greater  efficiency  and  simplicity  in  the  administration  of  its 
educational  interests,  desire  to  consolidate  such  institutions 
under  one  management,  such  organization  or  society  shall  be 
and  is  hereby  authorized  to  consolidate  such  institutions  under 
one  management  by  complying  with  the  following  provisions: 

Such  grand  lodge,  assembly,  conference  or  other  legislative 
or  representative  head  having  authorized  a  consolidation  of  its 
institutions,  a  ncAv  corporation  shall  be  formed.  The  board  of 
trustees  of  the  new  corporation  shall  at  first  consist  of  the  per- 
sons constituting  the  boards  of  trustees  of  the  several  institu- 
tions, respectively  thus  consolidating,  and  others ;  provided  the 
number  of  trustees  shall  not  exceed  forty-five.  The  board  of 
trustees  shall  be  so  classified  that  the  term  of  office  of  one  third 
of  its  number  shall  expire  each  year;  the  successors  of  such 
trustees,  as  their  terms  expire,  shall  be  elected  by  such  grand 


333  CONSOLIDATION  OP  COLLEGES.  §  653 

lodge,    assembly,    conference    or    other    legislative    or    repre- 
sentative head,  at  its  annual  meeting. 

The  said  board  of  trustees  shall  report  annually  to  the  grand 
lodge,  conference,  assembly  or  other  legislative  or  repre- 
sentative head  controlling  it,  the  condition  of  affairs  of  such 
corporation,  and  the  amount  and  manner  of  its  receipts  and 
expenditures. 

After  the  two  or  more  colleges  or  institutions  of  higher 
education  under  the  patronage  of  any  benevolent,  religious  or 
fraternal  organization  or  society,  having  a  grand  lodge,  as- 
sembly, conference  or  other  legislative  or  representative  head 
in  the  state  of  California  shall  have  become  consolidated  as 
hereinabove  directed  or  specified,  the  board  of  trustees  of  .the 
new  corporation,  consisting  at  first  of  the  persons  constituting 
the  boards  of  trustees  of  the  several  institutions,  respectively 
thus  consolidated,  may  be  reduced  in  number  after  said  board 
of  trustees  shall  have  transacted  the  business  of  said  corpora- 
tion for  a  period  of  five  years  after  such  consolidation.  Said 
number  shall  be  reduced  by  the  grand  lodge,  assembly,  con- 
ference or  other  legislative  or  representative  head  of  said  col- 
leges or  institutions  of  higher  education  in  the  following 
manner,  viz. :  At  any  annual  session  of  such  grand  lodge, 
assembly,  conference  or  other  legislative  or  representative 
head,  there  shall  be  dropped  from  the  number  of  trustees  to 
be  elected  at  that  session  of  such  grand  lodge,  assembly,  con- 
ference or  other  legislative  or  representative  head  such  a  num- 
ber of  trustees  as  those  present  at  such  session  shall  determine, 
provided  however,  that  at  no  time  shall  the  number  of  trustees 
composing  such  board  be  less  than  fifteen.  [Amendment  ap- 
proved 1909  ;  Stats.  1909,  p.  385.] 

Legislation  §  652.     1.  Added  by  Stats.  1893,  p.  4. 

2.  Amended  by  Stats.  1909,  p.  385,  (1)  in  first  paragraph,  adding 
"hereby"  before  "authorized";  (2)  in  paragraph  beginning  "such  grand 
lodge,"  (a)  omitting  the  word  "First"  as  the  number  of  the  paragraph, 
and  (b)  changing  "consolidated,"  to  "consolidating"  after  "respect- 
ively thus";  (3)  in  paragraph  beginning  "The  said  board,"  (a)  omit- 
ting the  word  "Second"  as  the  number  of  the  paragraph,  and  (b) 
transposing  the  words  "conference,  assembly,"  from  "assembly,  con- 
ference"; (4)  adding  the  final  paragraph. 

§  653.  Transfer  of  property.  Indebtedness.  Specific 
grants.  Dissolution.  The  several  boards  of  trustees  of  the 
institutions  thus  consolidated  shall  be  and  are  hereby  au- 
thorized and  directed  to  transfer  all  property,  real  and  per- 
sonal, held  by  them,  to  the  new  corporation,  as  herein  con- 
stituted, together  Avith  all  powers,  privileges,  and  authority 
conferred  upon  or  enjoyed  by  them  under  their  respective 
charters  or  acts  of  incorporation.  The  new  corporation  receiv- 
ing such  property  shall  assume  all  indebtedness  and  liabilities 


§  653a  CIVIL  CODE.  334 

of  such  institutions  as  are  thus  consolidated,  but  shall  not 
transfer  such  property  from  one  location  to  another,  except 
by  an  affirmative  vote  of  not  less  than  three  fourths  of  the 
said  board  of  trustees  of  the  new  corporation,  nor  divert 
specific  grants,  donations,  or  bequests  from  the  purposes  for 
which  such  grants,  donations,  or  bequests  were  made.  That 
after  the  boards  of  trustees  have  conveyed  the  property,  real 
and  personal,  of  the  various  institutions  to  the  new  corpora- 
tion, as  hereinabove  provided,  and  the  same  has  been  ac- 
cepted by  the  said  new  corporation,  then  the  franchises  held 
by  the  corporations  thus  consolidating  shall  cease,  and  the 
said  corporations  shall  be  thereby  dissolved.  [Amendment 
approved  1895;  Stats.  1895,  p.  40.] 

Legislation  §  653.     1.  Added  by  Stats.  1893,  p.  4. 

2.  Amended  by  Stats.  1895,'  p.  40,  (1)  in  first  sentence,  inserting 
"and  directed"  after  "authorized";  (2)  in  sentence  beginning  "The 
new  corporation,"  adding  "except  by  an  affirmative  vote  of  not  less 
than  three  fourths  of  the  said  board  of  trustees  of  the  new  corpora- 
tion." 


TITLE  XIX. 
Co-operative  Business  Corporations. 

§  653a.     Purposes  for  which  may  be  formed. 

Legislation  Title  XIX.  Added  by  Stats.  1905,  p.  594,  and  then  con- 
tained the  present  §  653a,  which  was  an  unconstitutional  addition  by  the 
code  commissioners  in  1901.     See  post.  Legislation  §  653a. 

§  653a.     Purposes  for  which  may  be  formed.     Co-operative 

business  corporations  may  be  formed  for  doing  any  lawful 
business,  and  dividing  a  portion  of  their  profits  among  per- 
sons other  than  their  stockholders.  Each  of  such  corpora- 
tions may,  in  its  by-laws,  in  addition  to  the  matters  specified 
in  section  three  hundred  and  three,  provide  the  amount  of 
profits  which  must  be  divided  among  persons  other  than  its 
stockholders,  and  the  manner  in  which  and  the  persons  among 
whom  such  division  may  be  made. 

Legislation  §  653a.  1.  Addition  by  Stats.  1901,  p.  3S7;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  594;  the  code  commissioner  saying,  "This 
section  is  a  codification  of  that  part  of  the  statute  of  1877-78,  p.  883. 
defining  co-operative  corporations,  and  the  section  is  placed  in  a  new 
title  designated  'Co-operative  Business  Corporations.'  That  part  of 
the  statute'  declaring  that  the  by-laws  may  provide  for  the  number  of 
votes  to  which  each  shareholder  shall  be  entitled  is  omitted  for  the 
reason  that  it  is  special  legislation,  and  probably  unconstitutional 
within  the  decision  in  Krause  v.  Durbrow,  127  Cal.  681." 


335  CO-OPERATIVE  BUSINESS  ASSOCIATIONS.  §  653c 


TITLE  XX. 
Co-operative  Business  Associations. 

§  653b.  Formation  and  purposes  of. 

§  653c.  Eights,  interests,  and  liabilities  of  members. 

§  653d.  Articles  of  association. 

§  653e.  By-laws. 

§  653f.  Execution  against  the  association  or  its  members. 

§  653g.  Purpose  of  the  association,  how  may  be  altered. 

§  653h.  Powers  of  the  association. 

§  653ha.  Method  of  calling  meetings  of  unincorporated  societies,  etc. 

§  653i.  Consolidation   of   associations. 

§  653j.  Dissolution  and  winding  up  of  association. 

§  653k.  Quo  warranto  to  inquire  into  the  right  of  an  association  to  do 

•      business. 

§  653  1.  What  corporations  or  associations  are  not  affected  by  this  title. 

Legislation  Title  XX.  Added  by  Stats.  1905,  p.  594,  and  then  con- 
tained §  653b-6531,  all  of  these  sections,  except  §  6531  being  uncon- 
stitutional additions  by  the  code  commissioners  in  1901.  See  post,  tit. 
"Legislation,"  under  the  respective  sections  constituting  the  title. 
The  code  commissioner  says  in  his  note  to  §§  653b-6531,  "The  statute 
of  1895,  p.  221,  is  codified  in  the  above  sections,  which  are  placed  in 
a  title  designated  'Co-operative  Business  Associations.'  " 

§  653b.  Formation  and  purposes  of.  Five  or  more  per- 
sons may  form  a  co-operative  association  for  the  transaction 
of  any  lawful  business,  whether  for  profit  or  not,  or  for  the 
promotion  of  any  educational,  industrial,  benevolent,  social,  or 
political  purpose.  Such  association  must  not  have  any  capital 
stock,  but  must  issue  membership  certificates  to  each  member. 
Such  certificate  cannot  be  assigned,  so  that  the  assignee  can, 
by  its  transfer,  become  a  member  of  the  association,  but,  by  a 
resolution  of  its  board  of  directors,  such  certificate  may  be 
transferred,  and  the  transferee  made  a  member  in  lieu  of  the 
last  former  holder. 

Legislation  §  653b.  1.  Addition  by  Stats.  1901,  p.  387;  unconstitu- 
tional:  See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  595.     See  ante,  Legislation  Title  XX. 

§  653c.     Rig-hts,    interests,   and   liabilities  of  members.     In 

such  association  the  rights  and  interests  of  all  members  are 
equal,  and  no  member  can  have  or  acquire  a  greater  interest 
therein  than  any  other  member  has.  At  every  election  held 
pursuant  to  the  by-laws  each  member  must  be  entitled  to  cast 
one  vote  and  no  more.  All  persons  above  the  age  of  eighteen 
years,  regardless  of  sex,  are  eligible  to  membership,  if  other- 
wise qualified  and  elected  as  the  by-laws  may  provide.  The 
by-laws  must  provide  for  the  amount  of  the  indebtedness 
which  such  association  may  incur.     And  no  member  shall  be 


§  653e  CIVIL  C()nE.  336 

responsible  individually,  or  personally  liable,  for  any  of  the 
debts  or  liabilities  of  the  association  in  excess  of  his  propor- 
tion of  such  indel)tedness ;  but  in  case  of  the  failure  and  in- 
solvency of  such  association,  may  be  required  to  pay  any 
unpaid  dues  or  installments  which  have,  before  such  insol- 
vency, become  due  from  such  member  to  the  association,  pur- 
suant to  its  by-laws. 

Legislation  §  653c.  1.  Addition  by  Stats.  1901,  p.  387;  unconstitu- 
tional:    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  595.     See  ante,  Legislation  Title  XX. 

i?-  §  653d.  Articles  of  association.  Every  association  formed 
under  this  title  must  prepare  articles  of  association,  in  writing, 
stating :  The  name  of  the  association,  the  purpose  for  which  it 
is  formed,  the  place  where  its  principal  business  is^to  be 
transacted,  the  term  for  which  it  is  to  exist,  not  to  exceed 
fifty  years,  the  number  of  the  directors  thereof,  and  the  names 
and  residences  of  those  selected  for  the  first  year,  the  amount- 
which  each  member  is  to  pay  upon  admission  as  membership 
fee,  and  that  each  member  signing  the  articles  has  actually 
paid  in  such  sum,  and  that  the  interest  and  right  of  each  mem- 
ber therein  is  to  be  equal.  Such  articles  of  association  must 
be  subscribed  by  the  original  associates  or  members,  and  ac- 
knowledged by  each  before  some  person  competent  to  take 
an  acknowledgment  of  a  deed  in  this  state.  Such  articles  so 
subscribed  and  acknowledged  must  be  ffled  in  the  office  of 
the  clerk  of  the  county  wherein  the  principal  business  of  the 
association  is  to  be  transacted,  and  a  copy  thereof  certified 
by  such  clerk,  with  the  secretary  of  state,  who  must  thereupon 
issue  his  certificate  in  the  form,  and  having  the  effect  pre- 
scribed in  section  two  hundred  and  ninety-six. 

Legislation  §  653d.  1.  Added  by  Stats.  1901,  p.  388;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.   Added  by  Stats.  1905,  p.  595.     See  ante.  Legislation  Title  XX. 

§  653e.  By-laws.  Every  association  formed  under  this  title 
must,  within  forty  days  after  it  so  becomes  an  association, 
adopt  a  code  of  by-laws  for  the  government  and  management 
of  the  association,  not  inconsistent  with  this  title.  A  majority 
of  all  the  associates  is  necessary  to  the  adoption  of  such 
by-laws,  and  the  same  must  be  written  in  a  book,  and  sub- 
scribed by  the  members  adopting  the  same,  and  the  same  can- 
not be  amended  or  modified  except  by  the  vote  of  a  majority 
of  all  the  "members,  after  notice  of  the  proposed  amendment, 
given  as  the  by-laws  may  provide.  Such  association  may, 
by  its  by-laws,  provide  for  the  time,  place,  and  manner  of 
calling  and  conducting  its  meetings;  the  number  of  directors, 
the  time  of  their  election,  their  term  of  office,  the  mode  and 


653d.  Articles  of  Association.  Every  association  formed  un- 
der this  title  must  prepare  articles  of  association,  in  writing 
stating:  The  name  of  the  association,  the  purpose  for  which  it 
is  formed,  the  place  where  its  principal  business  is  to  be  trans- 
acted, the  term  for  which  it  is  to  exist,  not  to  exceed  fifty  years, 
■  the  number  of  the  directors  thereof,  and  the  names  and  resi- 
dences of  those  selected  for  the  first  year,  the  amount  which 
each  member  is  to  pay  upon  admission  as  membership  fee,  and 
that  each  member  signing  the  articles  has  actually  paid  in  such 
sum,  and  that  the  interest  and  right  of  each  member  therein  is 
to  be  equal.  Such  articles  of  association  must  be  subscribed  by 
the  original  associates  or  members,  and  acknowledged  by  each 
before  some  person  competent  to  take  an  acknowledgment  of  a 
deed  in  this  state.  Such  articles  so  subscribed  and  acknowl- 
edged must  be  filed  in  the  office  [of  the  secretary  of  state,  who 
shall]  thereupon  issue  his  certificate  in  the  form,  and  having 
the  effect  prescribed  in  [said]  section  two  hundred  nlnety-slx[; 
provided,  however,  that  no  corporation  shall  be  authorized  to 
transact  any  business  until  it  shall  have  filed  in  the  office  of  the 
county  clerk  of  the  county  in  which  its  principal  business  Is  to 
be  transacted,  a  copy  of  its  articles  of  incorporation  certified  by 
the  secretary  of  state.]  (In  effect  90  days  from  and  after  April 
29,  1921.     Stats.  1921,  Chap.  170.)  Civ.   Code,  1921. 


337  CO-OPERATIVE  BUSINESS  ASSOCIATIONS.  §  653e 

manner  of  their  removal,  the  mode  and  manner  of  filling  vacan- 
cies in  the  board  cansed  by  death,  resignation,  removal,  or 
otherwise,  and  the  power  and  anthority  of  such  directors, 
and  how  many  thereof  are  necessary  to  the  exercise  of  the 
powers  of  snch  directors,  which  must  he  at  least  a  majority; 
the  compensation  of  any  of  the  directors,  or  of  any  officer ; 
the  number  of  the  officers,  if  any,  other  than  the  directors, 
and  their  term  of  office ;  the  mode  of  removal,  and  the  method 
of  filling  a  vacancy ;  the  mode  and  manner  of  conducting  busi- 
ness ;  the  mode  and  manner  of  conducting  elections,  and  may 
provide  for  voting  by  ballots  forwarded  by  mail  or  otherwise, 
provided  the  method  secures  the  secrecy  of  the  ballot;  the 
mode  and  manner  of  succession  of  membership,  and  the  quali- 
fications for  membership,  and  on  what  conditions,  and  when 
membership  must  cease,  and  the  mode  and  manner  of  expul- 
sion of  a  member,  subject  to  the  right  of  an  expelled  member 
to  have  the  board  of  directors  appraise  his  interest  in  the  as- 
sociation in  either  money,  property,  or  labor,  as  the  directors 
may  deem  best,  and  to  have  the  money,  property,  or  labor  so 
awarded  him  paid,  or  delivered,  or  performed  within  forty 
days  after  expulsion ;  the  amount  of  membership  fee,  and  the 
dues,  installments,  or  labor  which  each  member  must  be  re- 
quired to  pay  or  perform,  if  any,  and  the  manner  of  collection 
or  enforcement,  and  for  forfeiting  or  selling  of  membership 
interest  for  non-payment  or  non-performance;  the  method, 
time,  and  manner  of  permitting  the  withdrawal  of  a  member, 
if  at  all,  and  how  his  interest  must  be  ascertained,  either  in 
money  or  property,  and  within  what  time  the  same  must  be 
paid  or  delivered  to  such  member ;  the  mode  and  manner  of 
ascertaining  the  interest  of  a  member  at  his  death,  if  his  legal 
.  representatives  or  none  of  them  desire  to  succeed  to  the  mem- 
i  bership,  and  whether  the  same  must  be  paid  to  his  legal  repre- 
"  sentatives  in  money,  or  property,  or  labor,  and  within  what 
time  the  same  must  be  paid,  or  delivered,  or  performed;  such 
other  things  as  may  be  proper  to  carry  out  the  purpose  for 
which  the  association  was  formed.  The  by-laws  must  provide 
for  the  time  and  manner  in  which  profits  must  be  divided 
among  the  members,  and  what  proportion  of  the  profits,  if  any, 
must  be  added  to  the  common  property  or  funds  of  the  associa- 
tion. But  the  by-laws  may  provide  that  the  directors  may 
suspend  or  pass  the  payment  of  any  such  profit,  or  installment 
of  earnings,  at  their  discretion.  The  by-laws  and  all  amend- 
ments must  be  recorded  in  a  book  and  kept  in  the  office  of  the 
association,  and  a  copy,  certified  by  the  directors,  must  be  filed 
in  the  office  of  the  county  clerk  where  the  principal  business 
is  transacted. 

Civ.  Code — 22 


§  653h  CIVIL  CODE.  338 

Legislation  §  653e.  1.  Addition  by  Stats.  1901,  p.  388;  unconstitu- 
tional.    See'  no'te,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  596.     See  ante,  Legislation  Title  XX. 

§  653f.    Execution  against  the  association  or  its  members. 

The  property  of  such  association  is  subject  to  attachment  and 
execution  for  its  lawful  debts.  The  interest  of  a  member  in 
such  association,  if  sold  upon  execution,  or  any  judicial  or  gov- 
ernmental order  whatever,  cannot  authorize  the  purchaser  to 
have  any  right,  except  to  succeed,  as  a  member  in  the  associa- 
tion, with  the  consent  of  the  directors,  to  the  rights  of  the 
member  whose  interest  is  thus  sold.  If  the  directors  choose 
to  pay  or  settle  the  matter  after  such  sale,  they  may  either 
cancel  the  membership,  and  add  the  interest  thus  sold  to  the 
assets  or  common  property  of  the  association,  or  reissue  the 
share  or  right  to  a  new  member  upon  proper  payment  there- 
for, as  the  directors  may  determine. 

Legislation  §  653f.  1.  Addition  by  Stats.  1901,  p.  389;  unconstitu- 
tional.    See  no'te,  §  4,  ante. 

2.  Added  by  Stats,  1905,  p.  597.     See  ante,  Legislation  Title  XX. 

§  653g'.     Purpose  of  the  association,  how  may  be  altered. 

The  purpose  of  the  business  may  be  altered,  changed,  modified, 
enlarged,  or  diminished  by  a  vote  of  two  thirds  of  all  the  mem- 
bers, at  a  special  election  to  be  called  for  such  purpose,  of 
which  notice  must  be  given  the  same  as  the  by-laws  provide 
for  the  election  of  directors. 

Legislation  §  653g.  1.  Addition  by  Stats.  1901,  p.  389;  unconstitu- 
tional.    See'  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  597.     See  ante',  Legislation  Title  XX. 

§  653h.  Powers  of  the  association.  Every  association 
formed  under  this  title  has  power  of  succession  by  its  asso- 
ciate name  for  fifty  years ;  in  such  name  to  sue  and  be  sued 
in  any  court;  to  make  and  use  a  common  seal,  and  alter  the 
same  at  pleasure ;  to  receive  by  gift,  devise,  or  purchase,  hold, 
and  convey  real  and  personal  property,  as  the  purposes  of  the 
association  may  require ;  to  appoint  such  subordinate  agents 
or  officers  as  the  business  may  require ;  to  admit  associates  or 
members,  and  to  sell  or  forfeit  their  interest  in  the  associa- 
tion for  default  of  installments,  or  dues,  or  work,  or  labor  re- 
quired, as  provided  by  the  by-laws ;  to  enter  into  any  and  all 
lawful  contracts  or  obligations  essential  to  the  transaction  of 
its  affairs,  for  the  purpose  for  Avhich  it  was  formed,  and  to 
borrow  money,  and  issue  all  such  notes,  bills,  or  evidences  of 
indebtedness  or  mortgage  as  its  by-laws  may  provide  for;  to 
trade,  barter,  buy,  sell,  exchange,  and  to  do  all  other  things 
proper  to  be  done  for  the  purpose  of  carrying  into  effect  the 
objects  for  which  the  association  is  formed. 


653i.  Consolidation  of  Associations.  Two  or  more  associa- 
tions formed  and  existing  under  this  title,  or  under  any  pre- 
existing law  authorizing  their  formation  for  the  same  purposes, 
may  be  consolidated,  upon  such  terms,  and  for  such  purposes, 
and  by  such  name,  as  may  be  agreed  upon,  in  writing,  signed 
by  two-thirds  of  the  members  of  each  such  association.  Such 
agreement  must  also  state  all  the  matters  necessary  to  articles 
of  association,  and  must  be  acknowledged  by  the  signers  before 
an  officer  competent  to  take  an  acknowledgment  of  deeds  in  this 
state,  and  be  filed  [in  ail  respects  In  accordance  with  the  provi- 
sions of  section  two  hundred  ninety-six  of  this  code;]  and  from 
and  after  the  filing  of  such  certified  copy  the  former  associations 
comprising  the  component  parts  cease  to  exist,  and  the  consoli- 
dated association  succeeds  to  all  the  rights,  duties  and  powers 
of  the  component  as.sociations,  and  is  possessed  of  all  the  rights, 
duties,  and  powers  prescribed  in  the  agreement  of  consolidated 
association  not  inconsistent  with  this  title,  and  is  subject  to  all 
the  liabilities  and  obligations  of  the  former  component  associa- 
tions, and  succeeds  to  all  the  property  and  interests  thereof,  and 
may  make  by-laws  and  do  all  things  permitted  by  this  title.  (In 
effect  90  days  from  and  after  April  29,  1921.  Stats.  1021,  Chap. 
170.)  Civ.  Code,  1921. 


339  CO-OPERATIVE  BUSINESS  ASSOCIATIONS.  §  6531 

Legislation  §  653h.     1.  Addition  by   Stats.   1901,   p.   390;   unconstitu- 
tional.    See'  note,  §  4,  ante. 

2.  Added  by  Stats  1905,  p.  597.     See  ante,  Legislation  Title  XX. 

§653ha.  Method  of  calling-  meetings  of  unincorporated 
societies,  etc.  In  all  cases  where  neither  the  constitution 
nor  by-laws  of  an  unincorporated  society,  organization  or 
association  fixes  the  manner  of  calling  meetings  of  such 
unincorporated  society,  organization  or  association,  or  where 
the  officer  or  officers,  or  person  or  persons  whose  duty  it 
is  under  the  said  constitution  or  by-laws  to  call  a  meeting 
thereof  fails,  neglects  and  refuses  to  call  such  meeting,  a 
meeting  thereof  may  be  called  by  twelve  members  thereof  in 
the  manner  following :  By  signing  a  call  for  such  meeting, 
in  which  call  the  time  and  place  of  such  meeting  shall  be 
stated,  and  giving  two  wrecks'  notice  of  such  meeting  by 
publication  of  such  call  in  some  newspaper  of  general  cir- 
culation published  in  the  county  or  city  and  county  where  the 
last  preceding  meeting  of  such  society,  organization  or  asso- 
ciation was  held,  or  if  no  such  newspaper  is  published  in  such 
county  or  city  and  county,  then  in  a  newspaper  of  general 
circulation  published  in  an  adjoining  county;  provided,  how- 
ever, that  in  the  event  the  by-laws  of  any  such  unincorporated 
society,  organization,  or  association  specify  a  particular 
method  or  manner  of  giving  notice  of  a  meeting,  such  provi- 
sion shall  be  followed,  in  addition  to  the  method  hereinabove 
provided,  in  a  notice  of  any  meeting  given  by  said  twelve 
members. 

Legislation  §  6531ia.     Added  by  Stats.  1915,  p.  857. 

§  653i.  Consolidation  of  associations.  Tw  o  or  more  asso- 
ciations formed  and  existing  under  this  title,  or  under  any 
pre-existing  law  authorizing  their  formation  for  the  same 
purposes,  may  be  consolidated,  upon  such  terms,  and  for  such 
purposes,  and  by  such  name,  as  may  be  agreed  upon,  in  writ- 
ing, signed  by  two  thirds  of  the  members  of  each  such  associa- 
tion. Such  agreement  must  also  state  all  the  matters  neces- 
sary to  articles  of  association,  and  must  be  acknowledged  by 
the  signers  before  an  officer  competent  to  take  an  acknowledg- 
ment of  deeds  in  this  state,  and  be  filed  in  the  office  of  the 
county  clerk  of  the  county  wherein  the  principal  business  of 
the  association  is  to  be  transacted,  and  a  certified  copy  thereof 
in  the  office  of  the  secretary  of  state,  and  pay  the  same  fees 
for  filing  and  recording  as  required  by  this  code  for  the  filing 
and  recording  of  the  certified  copy  of  the  original  articles  of 
association;  and  from  and  after  the  filing  of  such  certified 
copy,  the  former  associations  comprising  the  component  parts 
cease  to  exist,  and  the  consolidated  association  succeeds  to  all 


§  653k  CIVIL  CODE.  340 

the  rights,  duties,  and  powers  of  the  component  associations, 
and  is  possessed  of  all  the  rights,  duties,  and  powers  pre- 
scribed in  the  agreement  of  consolidated  association  not  in- 
consistent with  this  title,  and  is  subject  tcT  all  the  liabilities 
and  obligations  of  the  former  component  associations,  and 
succeeds  to  all  the  property  and  interests  thereof,  and  may 
make  by-laws  and  do  all  things  permitted  by  this  title. 

Legislation  §  653i.  1.  Addition  by  Stats.  1901,  p.  390;  unconstitu- 
tional.    See"  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  598.     See  ante,  Legislation  Title'  XX. 

§653j.     Dissolution  and  winding  up  of  association.    Any 

association  formed  or  consolidated  under  this  title  may  be 
dissolved  and  its  affairs  wound  up  voluntarily  by  the  written 
request  of  two  thirds  of  the  members.  Such  request  must  be 
addressed  to  the  directors,  and  must  specify  reasons  why  the 
Avinding  up  of  the  affairs  of  the  association  is  deemed  advis- 
able, and  must  name  three  persons  who  are  members  to  act  in 
liquidation  and  in  winding  up  the  affairs  of  the  association,  a 
majority  of  whom  must  thereupon  have  full  power  to  do  all 
things  necessary  to  liquidation;  and  upon  the  filing  of  such 
request  with  the  directors,  and  a  copy  thereof  in  the  office  of 
the  county  clerk  of  the  county  where  the  principal  business 
is  transacted,  all  power  of  the  directors  ceases  and  the  persons 
appointed  must  proceed  to  wind  up  the  association,  and  realize 
upon  its  assets,  and  pay  its  delfts,  and  divide  the  residue  of  its 
money  among  the  members,  share  and  share  alike,  within  a 
time  to  be  named  in  said  written  request,  or  such  further  time 
as  may  be  granted  them  by  two  thirds  of  the  members,  in  writ- 
ing, filed  in  the  office  of  said  county  clerk;  and  upon  the  com- 
pletion of  such  liquidation  the  said  association  must  be  deemed 
dissolved.  No  receiver  of  any  such  association,  or  of  any  prop- 
erty thereof,  or  of  any  right  therein,  can  be  appointed  by  any 
court,  upon  the  application  of  any  member,  save  after  judg- 
ment of  dissolution  for  usurping  franchises  at  the  suit  of  the 
state  of  California  by  its  attorney-general. 

Legislation  §  653j.  1.  Addition  by  Stats.  1901,  p.  390;  unconstitu- 
tional.    See'  no'te,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  598.     See  ante,  Legislation  Title  XX. 

§  653k.  Quo  warranto  to  inquire  into  the  right  of  an  asso- 
ciation to  do  business.  The  right  of  any  association  claiming 
to  be  organized  under  this  title  to  do  business  may  be  inquired 
into  by  quo  warranto,  at  the  suit  of  the  attorney-general  of 
this  state,  but  not  otherwise. 

Legislation  §  653k.  1.  Addition  by  Stats.  1901,  p.  391;  unconstitu- 
tional.    See'  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  599.     See  ante,  Legislation  Titl^  XX. 


653n.  Membership.  Such  association  shall  not  [Issue]  capital 
stock,  [but  shall  Issue  membership  certificates  to  each  member. 
Its]  business  shall  not  be  carried  on  for  profit.  Any  person  or 
any  number  of  persons,  in  addition  to  the  original  incorporators, 
may  become  members  of  such  association,  upon  such  terms  and 
conditions  as  to  membership  and  subject  to  such  rules  and  regu- 
lations as  to  their,  and  each  of  their,  contract,  and  other  rights 
and  liabilities  between  it  and  the  member,  as  the  said  associa- 
tion  shall   provide   in   its   by-laws. 

The  association  shall  issue  a  certificate  of  membership  to  each 
member,  but  the  said  membership,  or  the  said  certificate  thereof, 
shall  not  be  assigned  by  a  memljer  to  any  other  person,  nor  shall 
the  assigns  thereof  be  entitled  to  membership  in  the  association, 
or  to  any  property  rights  or  interest  therein.  Nor  shall  a  pur- 
chaser at  execution  sale,  or  any  other  person  who  may  succeed, 
by  operation  of  law  or  otherwise  to  the  property  interests  of  a 
member,  be  entitled  to  membership,  or  become  a  member  of  the 
association  by  virtue  of  such  transfer.  The  board  of  directors 
may,  however,  by  motion  duly  adopted  by  it,  consent  to  such 
■  assignment  or  transfer  and  to  the  acceptance  of  the  assignee  or 
transferee  as  a  member  of  the  association,  but  the  association 
shall  have  the  right,  by  its  by-laws,  to  provide  for  or  against 
the  transfer  of  membership  and  for  or  against  the  assignment  of 
membership  certificates,  and  also  the  terms  and  conditions  upon 
which  any  such  transfer  or  assignment  shall  be  allowed.  (In 
effect  90  days  from  and  after  April  29,  1921.  Stats.  1921,  Chap. 
341.)  Civ.  Code.  1921. 


653iii.     Formation    and    Putdospi    nf       ^u,-^^ 

tlo„  3hl,,  have  a„a  ^^reL^lr'fhl"'''"™-  ""  ="=''  ''-~»- 
.i..e.  ana  .he  PoweraTe'^eXr'.nc  enTaTSeret'TlTd*'' h',?'' 
powers  granted  to  private  corporations  hy  the  Taws  of  ,m1     ,   .'"' 

■921,  Chap.  3«  )  "^^  '""  """  »""'  April  29.  1J21.     Stats. 

Civ.  Code,  1921. 


341  CO-OPERATIVE  AGRICULTURAL    ETC.   ASSOCIATIONS        §  653n" 

§  6531.  What  corporations  or  associations  are  not  affected 
by  this  title.  This  title  is  not  applicable  to  railroads,  tele- 
graph, telephone,  banking,  insurance,  building  and  loan,  or 
any  other  corporation,  unless  the  special  provisions  of  this 
code,  applicable  thereto,  are  complied  with. 

Legislation!  6531.     Added  by  Stats.  1905,  p.  599.     See  ante,  Legisla- 
tion Title  XX. 


TITLE  XXT. 

Non-profit  Co-operative  Agricultural,  Viticultural  and  Horti- 
cultural Associations. 

§  653m.  Formation  and  purposes  of. 

§  653n.  Membership. 

§  653o.  Articles  of  incorporation. 

§  653p.  By-laws. 

§  653q.  Powers  of  association. 

§  653r.  Amendment  of  articles  of  incorporation. 

§  653s.  Quo  warranto. 

Legislation  Title  XXI.     Added  by  Stats.  1909,  p.  16,  the  title  of  the 

act  reading,  "An  Act  to  amend  an  act  entitled  'An  Act  to  establish  a 
Civil  Code,'  approved  March  21,  1872,  by  adding  thereto  title  XXT  of 
part  IV  of  division  first  of  said  act  relating  to  and  providing  for  the 
incorporation,  organization,  management,  and  co-operation  of  agricul- 
tural, viticultural  and  horticultural  non-profit  co-operative  associa- 
tions." 

§  653m.  Formation  and  purposes  of.  Three  or  more  per- 
sons engaged  in  the  production,  preserving,  drying,  packing, 
shipping,  or  marketing  of  agricultural,  viticultural  or  horti- 
cultural products,  or  all  of  them,  may  form  a  non-profit  co- 
operative association  under  the  provisions  of  this  title,  to  carry 
on  said  business,  and  such  association  shall  have,  and  may 
exercise,  the  powers  authorized  by  this  title,  and  the  poAvers 
necessarily  incidental  thereto,  and  all  other  powers  granted 
to  private  corporations  by  the  laws  of  this  state,  except  such 
powers  as  are  inconsistent  with  those  granted  by  this  title. 
Legislation  §  653m.     Added  by  Stats.  1909,  p.  16. 

§  653n.  Membership.  Such  association  shall  not  have  a 
capital  stock,  and  its  business  shall  not  be  carried  on  for 
profit.  Any  person  or  any  number  of  persons,  in  addition  to 
the  original  incorporators,  may  become  members  of  such  asso- 
ciation, upon  such  terms  and  conditions  as  to  membership, 
and  subject  to  such  rules  and  regulations  as  to  their,  and  each 
of  their,  contract  and  other  rights  and  liabilities  between  it 
and  the  member,  as  the  said  association  shall  provide  in  its 
by-laws.  The  association  shall  issue  a  certificate  of  member- 
ship to  each  member,  ])ut  the  said  membership,  or  the  said 
certificate  thereof,  shall  not  be  assigned  by  a  member  to  any 


§  653o  CIVIL  CODE.  342 

other  person,  nor  shall  the  assigns  thereof  be  entitled  to  mem- 
bership in  the  association,  or  to  any  property  rights  or  interest 
therein.  Nor  shall  a  purchaser  at  execution  sale,  or  any  other 
person  who  may  succeed,  by  operation  of  law  or  otherwise  to 
the  property  interests  of  a  member,  be  entitled  to  membership, 
or  become  a  member  of  the  association  by  Aurtue  of  such  trans- 
fer. The  board  of  directors  may,  however,  by  motion  duly 
adopted  by  it,  consent  to  such  assignment  or  transfer  and  to 
the  acceptance  of  the  assignee  or  transferee  as  a  member  of 
the  association,  but  the  association  shall  have  the  right,  by  its 
by-laws,  to  provide  for  or  against  the  transfer  of  membership 
and  for  or  against  the  assignment  of  membership  certificates, 
and  also  the  terms  and  conditions  upon  which  any  such 
transfer  or  assignment  shall  be  allowed. 

Legislation  §  653rL     Added  by  Stats.  1909,  p.  17. 

§  653o.  Articles  of  incorporation.  Each  association  formed 
under  this  title  must  prepare  and  file  articles  of  incorporation 
setting  forth : 

1.  The  name  of  the  association. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  Avill  be  transacted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty  years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year  and  until  their  successors  shall  have  been  elected,  and 
shall  have  accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if  un- 
equal the  articles  shall  set  forth  a  general  rule  or  rules  ap- 
plicable to  all  members  by  which  the  voting  power  and  the 
property  rights  and  interests,  respectively,  of  each  member 
may  and  shall  be  determined  and  fixed,  but  the  association 
shall  have  power  to  admit  new  members  who  shall  be  entitled 
to  vote  and  to  share  in  the  property  of  the  association  with 
the  old  members,  in  accordance  Avith  such  general  rule.  This 
provision  of  the  articles  of  incorporation  shall  not  be  altered, 
amended,  or  repealed  except  by  the  unanimous  written  consent 
or  the  vote  of  all  of  the  members. 

7.  Said  articles  must  be  subscribed  by  the  original  members 
and  acknowledged  by  one  of  them  before  an  officer  authorized 
by  the  law  of  this  state,  to  take  and  certify  acknowledg- 
ments of  deeds  of  conveyance,  and  shall  be  filed  in  accordance 
with  the  provisions  of  section  two  hundred  and  ninety-six  of 
this  code,  and  when  so  filed  the  said  articles  of  incorporation 
or  certified  copies  thereof  shall  be  received  in  all  the  courts  of 


653o.  Articles  of  Incorporation.  Each  association  formed  un- 
der this  title  must  prepare  and  file  articles  of  incorporation 
setting   forth: 

1.  The  name   of   the   association. 

2.  The  purpose    for    which    it    is    formed. 

3.  The  place  where   its   principal   business  will   be   transacted. 

4.  The  term   for  which  it  is  to  exist,  not  exceeding  fifty  years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof,  and 
the  names  and  residences  of  those  selected  for  the  first  year  and 
until  their  successors  shall  have  been  elected,  and  shall  have 
accepted   office. 

6.  "Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if  unequal 
the  articles  shall  set  forth  a  general  rule  or  rules  applicable  to 
all  members  by  which  the  voting  power  and  property  rights  and 
interests,  respectively,  of  each  member  may  and  shall  be  deter- 
mined and  fixed,  but  the  association  shall  have  power  to  admit 
new  members  who  shall  be  entitled  to  vote  and  to  share  in  the 
property  of  the  association  with  the  old  members,  in  accordance 
with  such  general  rule.  This  provision  of  the  articles  of  incor- 
poration shall  not  be  altered,  amended,  or  repealed  except  by  the 
unanimous  written  consent  or  the  vote  of  all  of  the  members. 

7.  Said  articles  must  be  subscribed  by  the  original  members 
and  acknowledged  by  one  of  them  before  an  officer  authorized  by 
the  law  of  this  state,  to  take  and  certify  acknowledgments  of 
deeds  of  conveyance.  [Such  articles  so  subscribed  and  acknowl- 
edged must  be  filed  In  the  office  of  the  secretary  of  state,  who 
shall  thereupon  Issue  his  certificate  In  the  form  and  having  the 
effect  prescribed  in  section  two  hundred  ninety-six:  provided, 
however,  that  no  corporation  shall  be  authorized  to  transact  any 
business  until  it  shall  have  filed  in  the  office  of  the  county  clerk 
of  the  county  in  which  its  principal  business  is  to  be  transacted, 
a  copy  of  Its  articles  of  Incorporation  certified  by  the  secretary  of 
state.  When!  so  filed,  said  articles  of  incorporation  or  certified 
copies  thereof  shall  be  received  in  all  the  courts  of  this  state, 
and  other  places  as  prima  facie  evidence  of  the  facts  contained 
therein.  (In  effect  90  days  from  and  after  April  29,  1021.  Stats. 
1921,    Chap.    170.)  Civ.  Code,  1921. 

Note:  Enacted  twice — as  Stats.  1921,  Chap.  170,  and  as  Stats. 
1921,   Chap.   341. 


setting  forth,  "•  ""    Me   articles    of   Incorporation 

1.        Th^    r»Qrv»«     ■«,#     x^^ 


2      ^k!  "!™^  ^^  *^^  association. 


iie     nurpose    for  which    it    .-c    * 

the  names  and  residences  of  thol  ""'"^^''  '"  excess  thereof  and 
until  their  successors  shaH  have  h  '*1  '"'"  *^^  "''^^t  ^'-'"^  a^d 
accepted   Office.  ^"    ^^^^    ''e^"    elected,    and    shall    have 

;nttero?e::h'tn:h:;":,,^;'7;^j;;^';  the  property  ri.hts  and 
the  articles  shall  set  forth  a  .enera  nV"'"  '""^  '"^  ""•'^-' 
all   members   by  which    the  voUn^Z  °''  """'^^    applicable   to 

^nd    mterests.    resnectivelv     of  "Lh  l"*^   ^'^^   ^''^^'^'-tv   rights 

determined    and    flved     W    tt  "member    may    and    shall    hf 

adnjH  new  n,ember:'wh'o"ya'll  bT'^^M-^r;  Z^''"  have' p^t"  to^ 
in    the    property    of    +»,«  entitled   to   vote   and    t«    „i, 

accor,.„.,  -„h^.°:h'^  ncrrr^'fTh"""  '"?  "'^  '"-^-  l" 
oMncorpora.lon  shall  not  he  a'tcrcd    a^/;"^'"™  ""  '"=  "rtl'l.. 

™.„rs°""""'°'" ""«"  'o-r,-  ^r^r;  ™"t7;rr  r,r 

17      Qj   . ,  "-"    or    the 

ana  a;^;owtd;S  bTol'oVthtT^^^^^  *'^  -■-•-'  -emben, 
the    law    of    this    state     to   t«l.        I  ""  °^^er  authorized  bv 

<3eeds  of  conveyance,  'ap.^  X^,  b^^fr''"  ^^'^'^''-'ed^ment.  of 
provisions  of  section  two  hundred  « f  '".-^ordance  with  the 
when  .so  filed  the  said  article"  of  fn.  '■'""'  "*'  *^'^'  ^"-^e.  and 
thereof  shall  be  received  n  a,,  j'  '"""'•'^'>'-«t'-«n  or  certified  copies 
Places  as  prim.  faci.  e.^d^nce  of  the'r  ^  °'  *'"  ^^^^^-  ^""^  o'^er 
•ffect  90  day.  f.om  and  after  Ip'n?/  /g^?  ^T^"^'^  *'^'^^^'"-     ^^^ 

April  29.  1921.     Stat.s.  1921,  Chap.  341  ) 

loJJ^'^^L    ^"^'^^ed   twice-as  Stats    iqsi     f,u  ^'^-  ^ode.  1921. 

1921.  Chap.  341.  "'''^''-    "21.   Chap.    170.   and  as  Stats. 


eSSp.     By-Laws.     Each     association     incorporated     under    this 

Of  byTatTf  its*"''"*'  '^"^  ^"^^  '''  incorporation,  adopt  ^  code 
with  ti!  ,  •         ^"^^'•""^^"t   and   management   not   inconsistent 

assent  of  members  representing:  a  majority  of  the  votes,  is  necea^ 
sary  to  adopt  such  by-laws.  The  provisions  of  section  hree  hun- 
dred three  and  three  hundred  four  of  this  code,  which  are  not 
inconsistent  With  the  provision,  of  this  title,  shall  apply  o  thi 
by-laws  of  the  corporations  provided  for  in  this  title.  Each  asso! 
crafon  may  al.so.  by  its  by-laws  adopted,  as  aforesaid,  provide  for 
the  followmg  matters:  p'uvme  ror 

.  !.  ,'^«„"'^""^''  °^  removal  of  any  one  or  more  of  its  directors 
and  for  fillmg  any  and  all  vacancies  in  the  board  of  directors 

2.  The  number  of  directors  and  the  number  of  members  or 
votes   thereof  constituting   a   quorum.  memoers    or 

3.  The  conditions  upon  which  and  the  time  when  member- 
ner^  r^T"?''  '"  ''''  ^-ociation  shall  cea.e:  the  mode!  man- 
the  e.n.nf;       ^^.^'^P"^^'^"   ^'  ^  '"-'"ber.   subject   to   the  ri^M  of 

praise    ^  '"""^'•*°  ^^^"  ''''  ^°^^^  °f  ''"•^^t^'--  ^<^"'t-b'y  ap- 

praise his  property  interests  in  the  association  and  to  fix  the 
amount  thereof  in  money,  and  to  have  the  money  pa  d  to  him 
withm    sixty   days    after    such    expulsion. 

wi!;  J^^  /^"'ount  of  membership  fee.  if  any.  and  the  amount 
«me  t.'t       "r'^''  "^""   ^^   ^"^"''•^'^   *°  ^^y   annually,   or   from 

and   also ThV  ""'  '?■  ^'"^  °"  ^'^  ^"^'"^^^^  "^  the  associatlo" 

and  also  the  compensation,  if  any.  to  be  paid  by  each  member 
for  any  services  rendered  by  the  a....ociation  to  him.  and  the  time 
of  payment  and  the  manner  of  collecting  the  same,  and  for  for- 
feiture of  the  interest  of  the  member  in  the  association  for  non- 
payment of  the  same. 

tinn  Z^/f^'^'^Z.'^"^  Qualifications  of  members  of  the  associa- 
tion and  the  cond.tion.s  precedent  to  membership  and   the  method 

v^in  ^f  r"""'-  °'  P^'-'"'"'"^  members  to  withdraw,  and  pro-' 
vidin^  for  the  assignment  and  transfer  of  the  interest  of  members 
and    the    manner    of   determining    the    value    of   such    interest    and 

ziTz  drth"'  -r;'"^^  °^  ^^^^  '"^^^^^^^  ^-  *^^  ^--^^tion 

upon    the    death     withdrawal,    or   expulsion    of   a    member   or   upon 

6  pTrl^-n-  ''•'  T""'"""''"-  "t  *^^  «P*'°"  ^'  th-  association, 
the  cnnT7  ^^  members  to  vote  hv  their  proxies,  and  determining 
the  condition.s,  manner,  form  and  effect  thereof.  (In  effect  90  days 
from    and    after  April    29.    1921.     Stats.    1921.    Chap.    341.) 

Civ.   Code,   1921. 


343  CO-OPERATIVE  AGRICULTURAL    ETC.  ASSOCIATIONS        §  653p 

this  state,  and  other  places,  as  prima  facie  evidence  of  the  facts 
contained  therein. 

Legislation  §  653o.     Added  by  Stats.  1909,  p.  17. 

§  653p.  By-laws.  Each  association  incorporated  under  this 
title  must,  Avithin  thirty  days  after  its  incorporation,  adopt  a 
code  of  by-laws  for  its  government  and  management  not  in- 
consistent with  the  provisions  of  this  title.  A  majority  vote 
of  the  members  or  the  written  assent  of  members  representing 
a  majority  of  the  votes,  is  necessary  to  adopt  such  by-laws. 
The  provisions  of  sections  three  hundred  and  three  and  three 
hundred  and  four  of  this  code,  which  are  not  inconsistent  with 
the  provisions  of  this  title,  shall  apply  to  the  by-laws  of  the 
corporations  provided  for  in  this  title.  Each  association  may 
also,  by  its  by-laws  adopted  as  aforesaid,  provide  for  the  fol- 
lowing matters: 

1.  The  manner  of  removal  of  any  one  or  more  of  its  directors 
and  for  filling  any  and  all  vacancies  in  the  board  of  directors. 

2.  The  number  of  directors  and  the  number  of  members  or 
votes  thereof  constituting  a  quorum. 

3.  The  conditions  upon  which  and  the  time  when  member- 
ship of  any  member  in  the  association  shall  cease ;  the  mode, 
manner  and  effect  of  expulsion  of  a^  member,  subject  to  the 
right  of  the  expelled  member  to  have  the  board  of  directors 
equitably  appraise  his  property  interests  in  the  association 
and  to  fix  the  amount  thereof  in  money,  and  to  have  the  money 
paid  to  him  within  sixty  days  after  such  expulsion. 

4.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  each  member  shall  be  required  to  pay  annually,  or  from 
time  to  time,  if  at  all,- to  carry  on  the  business  of  the  associa- 
tion, and  also  the  compensation,  if  any,  to  be  paid  by  each 
member  for  any  services  rendered  by  the  association  to  him, 
and  the  time  of  payment  and  the  manner  of  collecting  the 
same,  and  for  forfeiture  of  the  interest  of  the  member  in  the 
association  for  non-payment  of  the  same. 

5.  The  number  and  qualifications  of  members  of  the  associa- 
tion and    the    conditions   precedent    to    membership  and   the 

-method,  time  and  manner  of  permitting  members  to  withdraAv, 
and  providing  for  the  assignment  and  transfer  of  the  interest 
of  members,  and  the  manner  of  determining  the  value  of  such 
interest  and  providing  for  the  purchase  of  such  interest  by  the 
association  upon  the  death,  withdrawal  or  expulsion  of  a  mem- 
ber or  upon  the  forfeiture  of  his  membership,  at  the  option 
of  the  association. 

6.  Permitting  members  to  vote  by  their  proxies,  and  deter- 
mining the  conditions,  manner,  form  and  effect  thereof. 

Legislation  §  653p.     Added  by  Stats.  1909,  p.  18. 


§  653q  CIVIL  CODE.  344 

§  653q.  Powers  of  association.  Each  association  incorpo 
rated  under  this  title  shall  have  the  powers  granted  by  the 
provisions  of  this  code  and  other  laws  of  California  relating 
to  private  corporations,  and  shall  also  have  the  following 
powers : 

1.  To  appoint  snch  agents  and  officers  as  its  business  ma>/ 
require,  and  such  appointed  agents  may  be  either  persons  oif 
corporations ;  to  admit  persons  to  memi)ership  in  the  associa  i 
tion,  and  to  expel  any  member  pursuant  to  the  provisions  of  ita; 
by-laws ;  to  forfeit  the  membership  of  any  member  for  viola, 
tion  of  any  agreement  between  him  and  the  association,  or  foi 
his  violation,  of  its  by-laws. 

2.  To    purchase  or    otherwise    acquire,  hold,    own,  sell  anc 
otherwise  dispose  of  any  and  every  kind  or  kinds  of  real  ano 
personal  property  necessary  to  carry  on  its  business,  and  ti-- 
acquire  by  purchase  or  otherwise  the  interest  of  any  membe 
in  the  property  of  the  association. 

3.  Upon  the  written  assent  or  by  a  vote  of  members  repres 
senting  two  thirds  of  the  total  votes  of  all  members  to  co; 
operate  with  any    other  co-operative    corporation  or  corpora 
tions  for  the  co-operative  and  more  economical  carrying  on  o( 
their  respective  businesses,  by  consolidation  as  provided  in  seo 
tion  six  hundred  and  fifty-three  i  of  this  code,  whereupon  thi 
effect  of  such  consolidation  shall  be  the  same  as  declared  i. 
said  section ;  or  upon  resolution,  adopted  by  its  board  of  d:i 
rectors,  to  enter  into  all   necessary  and  proper  contracts  aii' 
agreements,  and  to  make  all  necessary  and  proper  stipulation 
and  arrangements    with  any    other    co-operative    corporatio 
or   corporations   for   the    co-operative    and   more    economic^: 
carrying  on  of  its  business,  or  any  part  or  parts  thereof;  o 
any  two  or  more  co-operative  corporations  organized  unde 
this  title,  upon  resolutions,  adopted  by  their  respective  board 
of  directors,  may,  for  the  purpose  of  more  economically  carrj 
ing  on  their  respective  businesses,  by  agreement  between  then 
unite  in  employing  and  using,  or  several  associations  may  sepe 
rately  employ  and  use,  the  same  methods,  means  and  agenciei 
for  carrying  on  and  conducting  their  respective  businesses. 

4.  Any  association  formed  or  consolidated  under  this  tit! 
may  be  dissolved  and  its  alfairs  wound  up  voluntarily  by  th 
written  request  of  members  representing  two  thirds  of  th 
total  votes,  in  the  manner  and  with  the  effect  provided  in  se< 
tion  six  hundred  and  lifty-three  j  of  this  code,  except  that  thv. 
moneys  remaining  after  liquidation  shall  be  divided  among 
the  members  in  proportion  to  their  property  interests  therein. 

Legislation  §  653q.     Added  by  Stats.  1909,  p.  19. 


.nl^fL-is'-ria"   h";;:""'"";^'^^^'^    ^^^^°^^^"°"    incorporated 
of  this  code  and  other  laws  of  cJ^  ■^"''''''^   ^^   *^^  Provisions 
Porations.   and  shall  aLoTave  the     oHo""  ''""""^  *°  ^"^^^6  cor- 
1       To   ar,T,r.,-„f  1^  following^   powers:  r 

.ukWdTuc^h  Jp^  inTe^l^er.  ^^^^^h  ^^  "^  ^"^'"^^  --— 
porations;  to  ad^ifp^e^soLfo  n^  nTbL'shi:  i^th'^  '^''■""^  ^'^  '^''^- 
to   expel   any  member   pursuant   to   ti^T  association,,  and 

to    forfeit    the    membershTn    nf  Provisions    of  its   by-laws; 

agreement  betw^eTh^^^'anZ/./^^raUor  off  ^°'"'°"  °^  ^^^ 
its   by-laws.  association,  or  for  his  violation  of 

2.     To  purchase  or  otherwise  acnnire    >,^i/i    ^ 
Wise  dispose  of  any  and  evefv  ki.  h         ,      ^'        "'  ^^"'  ^"'^  ^^her- 
Property.    fincluding    s'ock^'o  h  '  °'  '"^'  ^"'^  P"«°"«l 

convenient  in  the  carrvL  on     f      ^    f  P^-"^*'""^'!    necessary    for 

to  mortgage  or  Ve^T' anrprrpe^trre^^r:^''  'e°  'T^  "^°"^^'- 
held  by  such  association-  to  sec.re  ^nvlT  ""Y'""^''  "^"^^  or 
any    bonds,    debentures     nmm.  ^   contracts    made    by   It,   or 

it   issued  oV   l^curr     "oVZ."t°eTdTl^^^^  7  '''''''  °'"'^^*'°"*   '^ 

or  otherwise  the  interest  of  any  member  n  T""'  '''  ^"^^'"^^ 
association.  ^  member  m   the  property  of  the 

sentin?two-?hirdTofThe'trJ  ""^  ""'  ^  ^°*^  °'  "^^^^"^  -P- 
with  any  othe;  co-operatile  a?'''  ^  ""  "'"'"^  ^'^  co-operate 
co-operative  and^;oT:^:rom^  clT^  ^inrorr'he""^'    ^^^  ^'^^ 

"rrtr-'t^hr!^  r:r':srz  -  ~^-^^^-^'s:sz 

u   iiity   mree   i   of  this   code,   whereupon   the   effect   nf  =„o^ 
solidation   shall  be  the  same  as  declared   in  Ld  ?..t 

tlons  may  separately  employ  and  use.  the  Sme  methods  means 
nesseT"""'  '"  ''"^^""  °"  ^'^^  ^°"^-*'"^  ^^^^  respect!;e  busi- 
th?s   tttle"^  m\The"r    f  T'"'     f^'^'^*'"^!    o''    consolidated    under 

enect   90   days   from   and   after  April    29.    1921.     Stats.    1021.    Chap. 


Civ.    Code    1921. 


kK'^^      Amendment    of    Articles    of    Incorporation.     Any    corpo- 

fJnwhXer    stock    or    membership,     heretofore     mcorporated 

ralion.   J^^f ^^^^ ^f ,°;/;   ^,„^^   f^,.  the   purpose  of   engaging  m  and 

H°^i  -ire  ir=-.«ra -n.  r:ri  3.  r 

ri,Te  15:.  .0  the  ri.ht  of  the  «7='»"°\'°  ^f"™'  ^Z 
members.  (In  effect  90  days  from  and  after  ^Pri' ^29- J'^^ 
Stats.    1921.    Chap.    341.) 


653sc.  [New.]  Sale  of  Securities.  No  corporation  now  or 
hereafter  incorporated  under  this  title  shall  sell,  or  offer  for  sale, 
negotiate  for  the  sale  of,  or  take  subscriptions  for  any  security 
of  Its  own  issue  until  it  shall  have  first  applied  for  and  secured 
from  the  commissioner  of  corporations  a  permit  authorizing  it 
so  to  do  and  complied  with  all  the  terms  and  conditions  of  chapter 
532,  statutes  1917;  as  amended,  chapter  148,  statutes  1919  known 
as  the  corporate  securities  act.  All  the  provisions  of  said 
corporate  securities  act  are  hereby  made  applicable  to  and  bind- 
mg  upon  corporations  incorporated  under  this  title.  (In  effect 
90    days    from   and   after   April    29,    1921.     Stats.    1921,    Chap.    341.) 

Civ.    Code,    1921. 


653sb.  [New.]  Powers  of  Co-operative  Associations;  Disposi- 
tion of  Funds.  Nothing-  in  this  title  shall  be  deemed  to  prohibit 
any  co-operative  association  formed  or  existing  hereunder  from 
having  and  exercising  the  same  powers  in  carrying  out  its 
purposes  as  are  enjoyed  or  exercised  by  corporations  which  issue 
capital   stock. 

Any  association  formed  or  existing  under  this  title  shall  con- 
duct and  carry  on  its  business  without  profit  to  itself:  it 
may,  however,  conduct  its  business  for  the  profit  of  its  members: 
it  may  use  or  employ  any  of  its  facilities  for  any  purpose  except 
the  handling  for  others,  not  members,  of  products  similar  to  the 
products  handled  for  its  members:  provided,  the  proceeds  arising 
from  such  use  and  employment  shall  go  to  reduce  the  cost  of 
operation  for  its  members.  (In  effect  90  days  from  and  after 
April  29,   1921.     Stats.   1921,   Chap.   341.)  Civ.   Code,   1921. 


653sa.  [New.l  Unequal  Voting  Power.  In  the  event  the  arti- 
cles of  incorporation  shall  provide  for  unequal  voting  power,  the 
provisions  of  law  with  reference  to  a  majority,  a  two-thirds, 
or  other  vote  of  the  members  shall  not  apply,  and  in  lieu 
thereof  there  shall  be  substituted  a  majority  or  two-thirds  of 
the  votes  of  the  interests  represented  by  the  several  members, 
or  otherwise,  as  the  case  may  be.  (In  effect  90  days  from  and 
after  April   29,    1921.     Stats.    1921,    Chap.    341.)  Civ.    Code    1921. 


to^S?'^.^?""    *"'';'"'°     The    Hsht    of   M    association    claiming 


345  CO-OPERATIVE    AGRICULTURAL     ETC.    ASSOCIATIONS        §  653s 

§  653r.  Amendment  of  articles  of  incorporation.  Any  cor- 
poration, whether  stock  or  membership,  heretofore  incorpo- 
rated under  the  laws  of  this  state  for  the  purpose  of  engaging 
in  and  carrying  on  the  business  specified  in  section  six  hun- 
dred and  fifty-three  m  of  this  title,  the  stockholders  or  mem- 
bers of  which  would  be  entitled  to  incorporate  under  the  pro- 
visions of  this  title,  may,  by  the  unanimous  written  assent  or 
vote  of  all  the  stockholders  or  members,  amend  its  articles  of 
incorporation  to  conform  to  the  provisions  of  this  title  in  the 
manner  and  with  the  effect  provided  in  section  three  hundred 
and  sixty-two  of  the  Civil  Code,  and  from  the  time  of  filing 
the  amended  articles,  such  corporation  shall  have  the  same 
powers  as  if  it  had  originally  incorporated  under  the  provi- 
sions of  this  title ;  provided,  however,  that  the  debts,  obliga- 
tions, and  other  liabilities  against  such  corporation  or  against 
the  members  or  the  stockholders  thereof,  existing  at  the  time 
of  such  amendment,  shall  not  be  discharged  or  their  collection 
or  enforcement  otherwise  impaired ;  and  provided  further 
that  the  respective  property  interests  of  the  several  stock- 
holders by  virtue  of  their  ownership  of  shares  of  stock  therein, 
or  the  several  members  by  virtue  of  their  membership  therein, 
and  also  the  voting  power  of  each  of  them,  shall  be  determined 
and  fixed  by  the  amended  articles  of  incorporation  in  accord- 
ance with  the  provisions  of  subdivision  six  of  section  six  hun- 
dred and  fifty-three  o,  but  which  rights  shall  be  subject  to  the 
right  of  the  association  to  admit  new  members. 
Legislation  §  653r.     Added  by  Stats.  1909,  p.  19. 

§  653s.  Quo  warranto.  The  right  of  an  association  claim- 
ing to  be  organized  and  incorporated  and  carrying  on  its  busi- 
ness under  this  title,  to  do  and  to  continue  its  business,  may  be 
inquired  into  by  ([uo  warranto  at  the  suit  of  the  attorney- 
general,  but  not  otherwise. 

Legislation  §  653s.     Added  by  Stats.  1909,  p.  20.  _, 


§  653u  CIVIL  CODE.  •  346 

TITLE  XXII. 
Non-profit  Co-operative  Corporations. 

§  653t.     Formation  and  purposes  of. 

§  6o3u.     Membership. 

§  653v.     Articles  of  incorporation. 

§  653w.     By-laws. 

§  653x.     Powers  of  corporation. 

§  653y.     Amendment  of  articles  of  incorporation. 

§  653z.     Quo  warranto. 

§  653za.  Particular  corporations. 

§  653zb.  Voting. 

Legislation  Title  XXII.  Added  by  Stats.  1909,  p.  854,  the  title  of 
the'  act  reading,  "An  Act  to  amend  an  act  entitled  'An  Act  to  estab- 
lish a  Civil  Code,'  approved  March  21,  1872,  by  adding  thereto  title 
XXII  of  part  IV  of  division  first  of  said  act  relating  to  and  providing 
for  the  incorporation,  organization,  management,  and  co-operation  of 
non-profit  co-operative  corporations." 

§  653t.  Formation  and  purposes  of.  Non-profit  co-opera- 
tive corporations  may  be  formed  by  the  voluntary  association 
of  any  three  or  more  persons  in  the  manner  prescribed  in  this 
title.  A  majority  of  such  persons  must  be  residents  of  this 
state,  and  such  corporation  shall  have  and  may  exercise  the 
powers  authorized  by  this  title,  and  the  powers  necessarily 
incident  thereto,  and  also  all  other  powers  granted  to  private 
corporations  by  the  laws  of  this  state,  excepting  such  powers 
as  are  inconsistent  Avith  those  granted  by  this  title. 
Legislation  §  653t.     Added  by  Stats.  1909,  p.  854. 

§  653u.  Membership.  Such  corporation  shall  not  have  a 
capital  stock,  and  its  business  shall  not  be  carried  on  for  profit. 
Any  person  or  any  number  of  persons  including  and  in  addi- 
tion to  the  original  incorporators,  may  become  members  of 
such  corporation  upon  such  terms  and  conditions  as  to  mem- 
bership, and  subject  to  such  rules  and  regulations  as  to  their, 
and  each  of  their,  contract  and  other  rights  and  liabilities 
between  it  and  the  member,  as  the  said  corporation  shall  pre- 
scribe in  its  by-laws.  The  corporation  shall  issue  a  certificate 
of  membership  to  each  member,  but  the  said  membership,  or 
the  said  certificate  thereof,  shall  not,  except  as  herein  pro- 
vided, be  assigned  by  a  member  to  any  other  person,  nor  shall 
the  assigns  thereof  be  entitled  to  membership  in  the  corpora- 
tion, or  to  any  property  rights  or  interest  therein,  nor  shall 
a  purchaser  at  execution  sale,  or  any  other  person  who  may 
succeed,  by  operation  of  law  or  otherwise,  to  the  property 
interests  of  a  member,  be  entitled  to  membership,  or  become  a 
member  of  the  corporation  by  virtue  of  such  transfer.     The 


„f      Non-profit    co-operativ 
„H     purposes    of.     '^°"/^_„ociation  of  an 

from   and   after 


653n.  Membership.  Such  corporation  shall  [not  issue]  cap- 
ital stock,  [but  shall  issue  a  membership  certificate  to  each 
member.  Its]  business  shall  not  be  carried  on  for  profit.  Any 
person  or  any  number  of  persons  including  and  in  addition  to 
the  original  incorporators,  may  become  members  of  such  corpo- 
ration upon  such  terms  and  conditions  as  to  [the]  membership, 
and  subject  to  such  rules  and  regulations  at  to  their,  and  each 
of  their,  contract  and  other  rights  and  liabilities  between  it  and 
the  member,  as  the  said  corporation  shall  prescribe  in  its 
by-laws.  The  corporation  shall  issue  a  certificate  of  member- 
ship to  each  member,  but  the  said  membership,  or  the  said  cer- 
tificate thereof,  shall  not,  except  as  herein  provided,  be  assigned 
by  [any]  member  to  any  other  person,  nor  shall  the  assigns 
thereof  be  entitled  to  membership  in  the  corporation,  or  to  any 
property  rights  or  interest  therein,  nor  shall  a  purchaser  at 
execution  sale,  or  any  other  person  who  may  succeed,  by  opera- 
tion of  law  or  otherwise,  to  the  property  interests  of  [the] 
member,  be  entitled  to  membership,  or  become  a  member  of 
the  corporation  by  virtue  of  such  transfer.  The  board  of 
directors  may,  however,  by  motion  duly  adopted  by  it,  con- 
sent to  such  assignment  or  transfer,  and  to  the  acceptance  of 
the  assignee  or  transferee  as  a  member  of  the  corporation.  The 
corporation  shall  also  "have  the  right,  by  its  by-laws,  to  provide 
for  or  against  the  transfer  of  membership  and  for  or  against  the 
assignment  of  membership  certificates,  and  also  the  terms  and 
conditions  upon  which  any  such  transfer  or  assignment  shall 
be  allowed.  (In  effect  90  days  from  and  after  April  20,  1021. 
Stats.    1921,   Chap.    342.)  Civ.    Code,   1921. 


653v.  Articles  of  Incorporation.  Each  corporation  formed 
under  this  title  must  prepare  and  file  articles  of  incorporation 
in   writing   setting   forth: 

1.  The   name   of   the   corporation. 

2.  The    purpose    for    which    it    is    formed. 

3.  The   place    where    its    principal    business    will    be    transacted. 

4.  The  term  for  which  it  is  to  exist,   not  exceeding  fifty  years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year  and  until  their  successors  have  been  elected,  and  shall  have 
accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interests  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules 
applicable  to  all  members  by  which  the  voting  power  and  the 
property  rights  and  interests,  respectively,  of  each  member  may 
and  shall  be  determined  and  fixed,  but  the  corporation  shall 
have  power  to  admit  new  members  who  shall  be  entitled  to  vote 
and  to  share  in  the  property  of  the  corporation  with  the  old 
members,  in  accordance  with  such  general  rule.  [This  provision 
of  the  articles  of  incorporation  shall  not  be  altered,  amended  or 
repealed  except  by  the  unanimous  written  consent  or  the  vote 
of   all    the    members.] 

7.  Said  articles  of  incorporation  shall  be  subscribed  by  three 
or  more  of  the  original  members,  a  majority  of  whom  must  be 
residents  of  this  state,  and  acknowledged  by  each  before  some 
officer  authorized  to  take  and  certify  acknowledgments  of  con- 
veyances of  real  property,  and  shall  be  filed  in  all  respects  in 
accordance  with  the  provisions  of  section  two  hundred  ninety- 
six  of  this  code,  and  thereupon  the  secretary  of  state  shall 
issue  to  the  corporation,  over  the  great  seal  of  the  state,  a  cei- 
tiflcate  that  a  copy  of  the  articles  containing  the  required  state- 
ment of  facts  has  been  filed  in  his  office,  and  thereupon  the  per- 
son signing  the  articles  and  their  associates  and  successors  shall 
be  a  body  politic  and  corporate  by  the  name  stated  in  the  cer- 
tificate. When  so  filed,  the  said  articles  of  incorporation  or 
certified  copies  thereof  shall  be  received  in  all  the  courts  of  this 
state,  and  other  places,  as  prima  facie  evidence  of  the  facts 
contained  therein.  (In  effect  90  days  from  and  after  April  29, 
1921.     Stats.    1921,   Chap.    342.)  Civ.    Code,    1921. 

Note:  Enacted  twice— as  Stats.  1921,  Chap.  170,  and  as  Stats. 
1921,   Chap.   342. 


653v.  Articles  of  Incorporation.  Each  corporation  formed 
under  this  title  must  prepare  and  file  articles  of  incorporation  in 
writing    setting    forth: 

1.  The   name   of   the   corporation. 

2.  The   purpose   for   which   it   is    formed. 

3.  The  place  where   its  principal  business  will   be   transacted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty  years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first  year 
and  until  their  successors  shall  have  been  elected,  and  shall 
have    accepted   office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interests  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules  appli- 
cable to  all  members  by  which  the  voting  power  and  the  prop- 
erty rights  and  interests,  respectively,  of  each  member  may  and 
shall  be  determined  and  fixed,  but  the  corporation  shall  have 
power  to  admit  new  members  who  shall  be  entitled  to  vote  and 
to  share  in  the  property  of  the  corporation  with  the  old  mem- 
bers,   in   accordance   with   such   general    rule. 

,7.  Said  articles  of  incorporation  shall  be  subscribed  by  three 
or  more  of  the  original  members,  a  majority  of  whom  must  be 
residents  of  this  state,  and  acknowledged  by  each  before  some 
officer  authorized  to  take  and  certify  acknowledgments  of  con- 
veyance or  (of)  real  property.  [Such  articles  so  subscribed  and 
acVcnowIedged  must  be  filed  in  the  office  of  the  secretary  of  state 
who  shall  thereupon  issue  a  certificate  in  the  form  and  having 
the  effect  prescribed  In  section  two  hundred  ninety-six;  provided, 
however,  that  no  corporation  shall  be  authorized  to  transact 
any  business  until  it  shall  have  filed  in  the  office  of  the  county 
clerk  of  the  county  in  which  its  principal  business  is  to  be 
transacted  a  copy  of  Its  articles  of  incorporation  certified  by  the 
secretary  of  state.  When]  so  filed  the  said  articles  of  incorpo- 
ration or  certified  copies  thereof  shall  be  received  in  all  the 
courts  of  this  state  and  other  places  as  prima  facie  evidence  of 
the  facts  contained  therein.  (In  effect  90  days  from  and  after 
April   29,    1921.     Stats.    1921,    Chap.    170.)  ■     Civ.   Code,   1921. 

Note:  Enacted  twice — as  Stats.  1921,  Chap.  170,  and  as  Stats. 
1921,  Chap.  342.  % 


347  NON-PROFIT  CO-OPERATIVE  CORPORATIONS.  §  653v 

board  of  directors  may,  however,  by  motion  duly  adopted  by 
it,  consent  to  such  assignment  or  transfer,  and  to  the  accept- 
ance of  the  assignee  or  transferee  as  a  member  of  the  cor- 
poration. The  corporation  shall  also  have  the  right,  by  its 
by-laws,  to  provide  for  or  against  the  transfer  of  membership 
and  for  or  against  the  assignment  of  membership  certificates, 
and  also  the  terms  and  conditions  upon  which  any  such  trans- 
fer or  assignment  shall  be  allowed. 

Legislation  §  653u.     Added  by  Stats.  1909,  p.  854. 

§  653v.     Articles  of  incorporation.     Each  corporation  formed    *^^ 
under  this  title  must  prepare  and  file  articles  of  incorporation 
in  writing  setting  forth : 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  will  be  transacted. 

4.  The  term  for  Avhich  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year  and  until  their  successors  shall  have  been  elected,  and 
shall  have  accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules  ap- 
plicable to  all  members  by  which  the  voting  power  and  the 
property  rights  and  interests,  respectively,  of  each  member 
may  and  shall  be  determined  and  fixed,  but  the  corporation 
shall  have  power  to  admit  new  members  who  shall  be  entitled 
to  vote  and  to  share  in  the  property  of  the  corporation  with 
the  old  members,  in  accordance  with  such  general  rule. 

7.  Said  articles  of  incorporation  shall  be  subscribed  by  three 
or  more  of  the  original  members,  a  majority  of  whom  must  be 
residents  of  this  state,  and  acknowledged  by  each  before  some 
officer  authorized  to  take  and-  certify  acknowledgments  of 
conveyances  of  real  property,  and  shall  be  filed  in  all  respects 
in  accordance  with  the  provisions  of  section  two  hundred  and 
ninety-six  of  this  code,  and  thereupon  the  secretary  of  state 
shall  issue  to  the  corporation,  over  the  great  seal  of  the  state, 
a  certificate  that  a  copy  of  the  articles  containing  the  required 
statement  of  facts  has  been  filed  in  the  office,  and  thereupon 
the  persons  signing  the  articles  and  their  associates  and  suc- 
cessors shall  be  a  body  politic  and  corporate  by  the  name 
stated  in  the  certificate.  When  so  filed,  the  said  articles  of 
incorporation  or  certified  copies  thereof  shall  be  received  in 


§  653x  CIVIL  CODE.  348 

all  the  courts  of  this  state,  and  other  places,  as  prima  facie 
evidence  of  the  facts  contained  therein. 

Legislation  §  653v.     Added  by  Stats.  1909,  p.  855. 

§  653w.  By-lav\^s.  Each  corporation  incorporated  under 
this  title  must,  within  one  month  after  filing  articles  of  incor- 
poration, adopt  a  code  of  by-laws  for  its  government  and  man- 
agement not  inconsistent  with  the  provisions  of  this  title.  A 
majority  vote  of  the  members  or  the  written  assent  of  mem- 
bers representing  a  majority  of  the  votes  is  necessary  to  adopt 
such  by-laws.  The  provisions  of  section  three  hundred  and 
three  and  three  hundred  and  four  of  this  code,  which  are  not 
inconsistent  Vvith  the  provisions  of  this  title,  shall  apply  to  the 
by-laws  of  the  corporation  provided  for  in  this  title.  Each 
corporation  organized  hereunder  may  also,  by  its  by-laws 
adopted  as  aforesaid,  provide  for  the  following  matters : 

1.  The  manner  of  removal  of  any  one  or  more  of  its  directors 
and  of  filling  any  and  all  vacancies  in  the  board  of  directors. 

2:  The  conditions  upon  which  and  the  time  when  member- 
ship of  any  member  in  the  corporation  shall  cease ;  the  mode, 
manner  and  effect  of  expulsion  of  a  member,  subject  to  the 
right  of  the  expelled  member  to  have  the  board  of  directors 
equitably  appraise  his  property  interests  in  the  corporation 
and  to  fix  the  amount  thereof  in  money,  and  to  have  the  money 
paid  to  him  within  sixty  days  after  such  expulsion. 

3.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  each  member  shall  be  required  to  pay  annually,  or  from 
time  to  time,  if  at  all,  to  carry  on  the  business  of  the  corpora- 
tion, and  also  the  compensation,  if  any,  to  be  paid  by  each 
member  for  any  services  rendered  by  the  corporation  to  him, 
and  the  time  of  payment  and  the  manner  of  collecting  the  ■ 
same,  and  may  provide  for  forfeiture  of  the  interest  of  the 
member  in  the  corporation  for  non-payment  of  the  same. 

4.  The  number  and  qualifications  of  members  of  the  cor- 
poration and  the  conditions  precedent  to  membership  and  the 
method,  time  and  manner  of  permitting  members  to  withdraw, 
and  providing  for  the  assignment  and  transfer  of  the  interest 
of  members,  and  the  manner  of  determining  the  value  of  such 
interest  and  providing  for  the  purchase  of  such  interest  by  the 
corporation  upon  the  death,  Avithdrawal  or  expulsion  of  a 
member  or  upon  the  forfeiture  of  his  membership,  at  the  option 
of  the  corporation. 

Legislation  §  653w.     Added  by  Stats.  1909,  p.  855. 

§  653x.  Powers  of  corporation.  Each  corporation  incorpo- 
rated under  this  title  shall  have  the  powers  granted  by  the 
provisions  of  this  code  and  other  laws  of  California,  relating  to 


653iv.  By-Laws.  Each  corporation  incorporated  under  thi.s 
title  must,  within  one  month  after  filing  articles  of  incorporation, 
adopt  a  code  of  by-}aws  for  its  government  and  management  not 
inconsistent  with  the  provisions  of  this  title.  A  majority  [vote 
or]  the  written  assent  of  members  representing  a  majority  of 
the  votes  is  necessary  to  adopt  such  by-laws.  The  provisions 
of  section  three  hundred  three  and  three  hundred  four  of  this 
code,  which  are  not  inconsistent  with  the  provisions  of  this  title, 
shall  apply  to  the  by-laws  of  the  corporation  provided  for  in 
this  title.  Each  corporation  organized  hereunder  may  also,  by 
its  by-laws  adopted  as  aforesaid,  provide  for  the  following  mat- 
ters: 

1.  The  manner  of  removal  of  r  '  one  or  more  of  its  directors 
and  of  filling  any  and  all  vacanc'    .   in  the  board  of  directors. 

2.  The  conditions  upon  which  and  the  time  when  membership 
of  any  member  in  the  corporation  shall  cease;  the  mode,  manner 
and  effect  of  expulsion  of  a  member,  subject  to  the  right  of  the 
expelled  member  to  have  the  board  of  directors  equitably 
appraise  his  property  interests  in  the  corporation  and  to  fix  the 
amount  thereof  in  money,  and  to  have  the  money  paid  to  him 
within    sixty    days   after   such   expulsion. 

3.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  each  member  shall  be  required  to  pay  annually,  or  from 
time  to  time,  if  at  all,  to  carry  on  the  business  of  the  corpo- 
ration, and  also  the  compensation,  if  any,  to  be  paid  by  each 
member  for  any  services  rendered  by  the  corporation  to  him, 
and  the  time  of  payment  and  the  manner  of  collecting  the  same, 
and  may  provide  for  forfeiture  of  the  interest  of  the  member  in 
the    corporation    for    non-payment   of   the    same. 

4.  The  number  and  qualifications  of  members  of  the  corpo- 
ration and  the  conditions  precedent  to  membership  and  the 
method,  time  and  manner  of  permitting  members  to  withdraw, 
and  providing  for  the  assignment  and  transfer  of  the  interest  of 
members,  and  the  manner  of  determining  the  value  of  such 
interest  and  providing  for  the  purchase  of  such  interest  by  the 
corporation  upon  the  death,  withdrawal  or  expulsion  of  a  mem- 
ber or  upon  the  forfeiture  of  his  membership,  at  the  option  of 
the   corporation. 


total  votes  in  the  manner  and  with  the  effect  provided  in  sec- 
tion six  hundred  fifty-three  j  of  this  code,  except  that  any  prop- 
erty remaining  after  liquidation  shall  be  divided  among  the  mem- 
bers in  proportion  to  their  respective  property  interests  therein. 
(In  effect  90  days  from  and  after  April  29,  1921.  Stats.  1921, 
Chap.    342.)  Civ.    Code,    1921. 


653x.  Powers  of  Corporation.  Each  corporation  incoriK)rated 
under  this  title  shall  have  the  powers  granted  by  the  provisions 
of  this  code  and  other  laws  of  California,  relating  to  private 
corporations,  which  aie  not  inconsistent  with  those  granted  by 
this   title,    and   shall   also   have    the   following  powers: 

1.  To  appoint  such  agents  and  officers  as  its  business  may 
require,  and  such  appointed  agents  may  be  either  persons  or 
corporations;  to  admit  persons  and  corporations  to  membership 
in  the  corporation,  and  to  expel  any  member  pursuant  to  the 
provisions  of  its  by-laws;  to  forfeit  the  membership  of  any  mem- 
ber for  violation  of  any  agreement  between  him  and  the  corpo- 
ration   or   for   his   violation   of   its    by-laws. 

2.  To  purchase,  lease  or  otherwise  acquire,  hold,  own  and 
enjoy,  to  sell,  lease,  mortgage  and  otherwise  encumber  and  dis- 
pose of  any  and  all  and  every  kind  or  kinds  or  real  and  .personal 
property,  [including  stock  in  other  corporations,]  also  to  carry 
on  any  and  all  operations  necessary  or  convenient  in  connection 
with  the  transaction  of  any  of  its  business;  [to  borrow  money; 
to  mortgage  or  pledge  any  property  real  or  personal,  owned  or 
held  by  such  corporation;  to  secure  any  contracts  made  by  it,  or 
any  bonds,  debentures,  promissory  notes,  or  other  obligations  by 
It  issued  or  incurred  or  guaranteed;  and  to  acquire  by  purchase 
or  otherwise,  the  interest  of  any  member  in  the  property  of  the 
corporation.] 

3.  Upon  the  written  assent  of  two-thirds  of  all  the  members  or 
by  a  vote  of  members  representing  two-thirds  of  the  total  votes 
of  all  members  of  each  of  two  or  more  such  non-profit  co-opera- 
tive corporations  to  co-operate  with  each  other  for  the  more 
economical  carrying  on  of  their  respective  businesses  by  consoli- 
dation as  provided  in  section  six  hundred  fifty-three  i  of  this 
code,  such  consolidation  shall  be  effected,  and  thereupon  the 
effect  of  such  consolidation  shall  be  the  same  as  declared  in 
said  section.  Any  such  corporation  vipon  resolution,  adopted  by 
its  board  of  directors,  shall  have  the  power  to  enter  into  con- 
tracts and  agreements,  and  to  make  stipulations  and  agreements 
with  any  other  corporation  or  corporations,  for  the  co-operative 
and  more  economical  carrying  on  of  its  business,  or  any  part 
or  parts  thereof;  or  any  two  or  more  co-operative  corporations 
organized  under  this  title,  upon  resolutions  adopted  by  their 
respective  boards  of  directors,  may,  for  the  purpose  of  more 
economically  carrying  on  their  respective  businesses,  by  agree- 
ment, unite  in  adopting,  employing  and  using,  or  several  such 
corporations  may  separately  adopt,  employ  and  use  the  same 
methods,  policy,  means,  agents,  and  [agencies  for]  carrying  on 
and    conducting    their    respective    businesses. 

4.  Any  corporation  formed,  existing  or  consolidated  under  this 
title  may  be  dissolved,  and  its  affairs  wound  up  voluntarily  by 
the    written    consent    of   members    representing    two-thirds    of   the 


349  NON-PROFIT  CO-OPERATIVE  CORPORATIONS.  §  653x 

private  corporations,  which  are  not  inconsistent  Avith  those 
granted  by  this  title,  and  shall  also  have  the  following  powers : 

1.  To  appoint  such  agents  and  officers  as  its  business  may  re- 
quire, and  such  appointed  agents  may  be  either  persons  or  cor- 
porations ;  to  admit  persons  and  corporations  to  membership 
in  the  corporation,  and  to  expel  any  member  pursuant  to  the 
provisions  of  its  by-laws ;  to  forfeit  the  membership  of  any 
member  for  violation  of  any  agreement  between  him  and  the 
corporation  or  for  his  violation  of  its  by-laws. 

2.  To  purchase,  lease  or  otherwise  acquire,  hold,  own  and 
enjoy,  to  sell,  lease,  mortgage  and  otherwise  encumber  and 
dispose  of  any  and  all  and  every  kind  or  kinds  of  real  and  per- 
sonal property,  also  to  carry  on  any  and  all  operations  neces- 
sary or  convenient  in  connection  with  the  transaction  of  any  of 
its  business. 

3.  Upon  the  written  assent  of  two  thirds  of  all  the  members 
or  by  a  vote  of  members  Y-epresenting  two  thirds  of  the  total 
votes  of  all  members  of  each  of  two  or  more  such  non-profit 
co-operative  corporations  to  co-operate  with  each  other  for  the 
more  economical  carrying  on  of  their  respective  businesses  by 
consolidation  as  provided  in  section  six  hundred  and  fifty- 
three  i  of  this  code,  such  consolidation  shall  be  effected,  and 
thereupon  the  effect  of  such  consolidation  shall  be  the  same  as 
declared  in  said  section.  Any  such  corporation  upon  resolution, 
adopted  by  its  board  of  directors,  shall  have  the  power  to  enter 
into  contracts  and  agreements,  and  to  make  stipulations  and 
arrangements  with  any  other  corporation  or  corporations  for 
the  co-operative  and  more  economical  carrying  on  of  its  busi- 
ness, or  any  part  or  parts  thereof ;  or  any  two  or  more  co-oper- 
ative corporations  organized  under  this  title,  upon  resolutions 
adopted  by  their  respective  boards  of  directors,  may,  for  the 
purpose  of  more  economically  carrying  on  their  respective 
businesses,  by  agreement,  unite  in  adopting,  employing  and 
using,  or  several  such  corporations  may  separately  adopt,  em- 
ploy and  use  the  same  methods,  policy,  means,  agents,  agencies 
and  terms  of  marketing  for  carrying  on  and  conducting  their 
respective  businesses. 

4.  Any  corporation  formed  or  consolidated  under  this  title 
may  be  dissolved,  and  its  affairs  wound  up  voluntarily  by  the 
written  consent  of  members  representing  two  thirds  of  the 
total  votes,  in  the  manner  and  with  the  eft'ect  provided  in  sec- 
tion six  hundred  and  fifty-three  j  of  this  code,  except  that  any 
property  remaining  after  liquidation  shall  be  divided  among" 
the  members  in  proportion  to  their  respective  property  inter- 
ests therein. 

Legislation  §  653x.     Added  by  Stats.  1909,  p.  856. 


§  653zb  CIVIL  CODE.  350 

\  u :  §  653y.  Amendment  of  articles  of  incorporation.  Any  such 
corporation  may  amend  its  articles  of  incorporation  in  any 
manner  not  inconsistent  with  the  provisions  of  this  title,  in  the 
manner  provided  for  by  section  three  hundred  and  sixty-two 
of  the  Civil  Code  of  this  state. 

Legislation  §  653y.     Added  by  Stats.  1909,  p.  857. 

I  w  §  653z.     Quo  warranto.     The  right  of  a  corporation  claiming 

to  be  organized  and  incorporated  and  carrying  on  its  business 
under  this  title,  to  do  and  to  continue  its  business,  may  be  in- 
quired into  by  quo  warranto  proceeding  at  the  suit  of  the  at- 
torney-general, but  not  otherwise. 

Begislation  §  653z.     Added  by  Stats.  1909,  p.  857. 

§  653za.     Particular  corporations.     This  title  is  not  appli- 
cable to  railroads,  telegraph,  telephone,  banking,  insurance, 
building  and  loan,  or  any  other  corporation,  unless  the  special 
provisions  of  this  code  applicable  thereto  are  complied  with. 
Legislation  §  653za.     Added  by  Stats.  1909,  p.  857. 

§  653zb.  Voting-.  In  the  event  the  by-laws  shall  provide  for 
unequal  voting  power,  or  unequal  property  rights  of  the  sev- 
eral members,  or  both,  the  provisions  of  this  title  with  refer- 
ence to  a  majority,  a  two-thirds,  or  other  vote  of  the  members, 
shall  not  apply,  and  in  lieu  thereof,  there  shall  be  substituted 
a  majority,  or  a  two  thirds  of  the  votes  of  the  interests  repre- 
sented by  the  several  members,  or  otherwise  as  the  case  may  be. 
Legislation  §  653zb.     Added  by  Stats.  1909,  p.  857. 

^^ '''     L^bzc 


.         .    nf    Articles    of    incorporation.      Any    such 
653y.      Amendment    °      ^rti^^^"^^^   ^^  incorporation  in  any  man- 
corporation  may  amend  ^^s  articles   o  .^  ^^^  ^^^j^. 

ner  not  inconsistent  -"h  ^^^P^TSred  sixty-two  of  the  Civil 
ner  provided  for  by  section  three  ^^J^f^^^  J^^  ^j^er  April  29. 
Code   of   this    state.     (In   effect   90    days   trom  ^_^     ^^^^^  ^^^1. 

1921.     Stats.   1921,   Chap.    342.) 

T^hP  rieht  of  a  corporation  claiming  to 

653z.     QUO  warranto.  J^\"^f  ^^f^i^g  on  its  business  under 

be  organized  and  incorporated  and  ^arjy^  g  .^^^  .^,^ 

this  title,  to  do  [and  -^^""^^/f^J^"/,"  of  Se  attorney  general, 
by  quo  warranto  P^°^/«^'"^^f  gj'^davs  fiom  and  after  April  29. 
but    not   otherwise.     (In    effect    90    days  ^.^     ^^^^^    ^321. 

1921.     Stats.    1921,    Chap.    342.) 

653za.  Exemptions.  This  title  is  not  applicable  to  railroads, 
telegraph,  telephone,  banking,  insurance,  building  and  loan,  or 
any  other  corporation,  unless  the  special  provisions  of  this  code 
applicable  thereto  are  complied  with.  (In  effect  90  days  from  and 
after  April  29,   1921.     Stats.   1921,  Chap.   342.)  Civ.   Code,   1921 


653zb.     Voting.     In    the    event    the    [articles    of    Incorporation! 

shall  provide  for  unequal  voting  [power,  the]  provisions  of  [law] 
with  reference  to  a  majority,  a  two-thirds,  or  other  vote  of  the 
members  shall  not  apply,  and  in  lieu  thereof,  there  shall  be  sub- 
stituted a  majority  or  two-thirds  of  the  votes  of  the  interests  rep- 
resented by  the  several  members,  or  otherwise,  as  the  case  may 
be.  (In  effect  90  days  from  and  after  April  29,  1921.  Stats. 
1921,    Chap.    342.)  Civ.    Code,    1921. 

653zc.  [New.]  Powers  of  Co-operative  Corporations;  Dis- 
position of  Funds.  Nothing  in  this  title  shall  be  deemed  to  pro- 
hibit any  co-operative  corporation  formed  or  existing  hereunder 
from  having  and  exercising  the  same  powers  in  carrying  out_ 
its  purposes  as  are  enjoyed  or  exercised  by  corporations  which 
issue    capital    stock. 

Any  corporation  formed  or  existing  under  this  title  shall  con- 
duct and  carry  on  its  business  without  profit  to  itself;  it  may, 
however,  conduct  its  business  for  the  profit  of  its  members;  it 
may  use  or  employ  any  of  its  facilities  for  any  purpose  except 
the  handling  for  others,  not  members,  of  products  similar  to  the 
products  handled  for  its  members,  provided  the  proceeds  arising 
from  such  use  and  employment  shall  go  to  reduce  the  cost  of 
operation  for  its  members.  (In  effect  90  days  from  and  after 
April    29,    1921.      Stats.    1921,    Chap.    342.)  Civ.    Code,   1921. 

653zd.  [New.]  Sale  of  Securities.  No  corporation  now  or 
hereafter  incorporated  under  this  ti^^^le  shall  sell,  or  offer  for 
sale,  negotiate  for  the  sale  of,  or  take  subscriptions  for  arry 
security  of  its  own  issue  until  it  shall  have  first  applied  for 
and  secured  from  the  commissioner  of  corporations  a  permit 
authorizing  it  so  to  do  and  complied  with  all  the  terms  and 
conditions  of  chapter  532,  statutes  1917;  as  amended,  chapter 
148,  statutes  1919  known  as  the  corporate  securities  act.  All  the 
provisions  of  said  corporate  securities  act  are  hereby  made  appli- 
cable to  and  binding  upon  corporations  incorporated  under  this 
title.  (In  effect  90  days  from  and  after  April  29,  1921.  Stats. 
1921,   Chap.    342.)  Civ.   Code,   1921. 


DIVISION  SECOND. 

Part      I.     Property  in  General.     §§  654r-749. 

II.     Real  or  Immovable  Property.     §§  755-940. 

III.  Personal  or  Movable  Property.     §§  946-995. 

IV.  Acquisition  of  Property.     §§  1000-1426s. 

(351) 


§  655  CIVIL  CODE.  352 


PAET  I. 
PROPERTY  IN  GENERAL. 

Title       I.     Nature  of  Property.     §§  654-663. 
II.     Ownership.     §§  669-742. 
III.     General  Definitions.     §§748,   749. 

TITLE  I. 
Nature  of  Property. 

§  654.  Property,  what. 

§  655.  In  what  property  may  exist. 

§  656.  Wild  animals. 

§  657.  Real  and  personal. 

§  658.  Eeal  property. 

§  659.  Land. 

§  660.  Fixtures. 

§  661.  Fixtures  attached  to  mines. 

§  662.  Appurtenances. 

§  663.  Personal  property. 

§  654.  Property,  what.  The  ownership  of  a  thing  is  the 
right  of  one  or  more  pei'sons  to  possess  and  use  it  to  the  exclu- 
sion of  others.  In  this  code,  the  thing  of  which  there  may  be 
ownership  is  called  property. 

As  to  meaning  of  "property,"  for  purposes  of  taxation,  see  Pol.  Code, 
§  3617. 
Eeal  property:  See  post,  §  658. 
Personal  property:   See  post,  §§  663,  953  et  seq. 
Franchises  as  property:   See  ante,  §  388. 

Legislation  §  654.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  159. 

§  655.  In  what  property  may  exist.  There  may  be  owner- 
ship of  all  inanimate  things  which  are  capable  of  appropriation 
or  of  manual  delivery;. of  all  domestic  animals;  of  all  obliga- 
tions ;  of  such  products  of  labor  or  skill  as  the  composition  of 
an  author,  the  good-A\ill  of  a  business,  trade-marks  and  signs, 
and  of  rights  created  or  granted  by  statute. 

Counterfeiting  trade-niark,  a  misdemeanor:   Pen.  Code,  §  350. 

Products  of  the  mind:    See  post,  §§  9S0  et  seq. 

Trade-marks:   See  post,  §  991. 

Good-will:   See  post,  §  993. 

Title  deeds:   See  post.  §  994. 

Domestic  animals.     Larceny  of:   See  Pen.  Code,  §§  487,491. 

Legislation  §  655.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  y.  Civ.  Code,  §  160. 


353  NATURE   OP   PROPERTY.  §  661 

§  656.  Wild  animals.  Animals  wild  by  nature  are  the  sub- 
jects of  ownership,  while  living,  only  when  on  the  land  of  the 
person  claiming  them,  or  when  tamed,  or  taken  and  held  in 
possession,  or  disabled  and  immediately  pursued. 

Legislation  §  656.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
K  Y.  Civ.  Code,  §  161. 

§  657.     Real  and  personal.     Property  is  either : 

1.  Real  or  immovable ;  or, 

2.  Personal  or  movable. 

Legislation  §  657.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  162. 

§  658.  Real  property.  Real  or  immovable  property  con- 
sists of : 

1.  Land ; 

2.  That  which  is  affixed  to  land ; 

3.  That  which  is  incidental  or  appurtenant  to  land ; 

4.  That  which  is  immovable  by  law. 
Land,  defined:  See  post,  §  659. 
Fixtures:   See  post,  §§  660  et  seq. 
Appurtenances:   See  post,  §  662. 

Legislation  §  658.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  163. 

§  659.  Land.  Land  is  the  solid  material  of  the  earth,  what- 
ever may  be  the  ingredients  of  which  it  is  composed,  whether 
soil,  rock,  or  other  substance. 

Legislation  §  659.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  164. 

§  660.  Fixtures.  A  thing  is  deemed  to  be  affixed  to  land 
when  it  is  attached  to  it  by  roots,  as  in  the  case  of  trees,  vines, 
or  shrubs ;  or  imbedded  in  it,  as  in  the  case  of  walls ;  or  perma- 
nently resting  upon  it,  as  in  the  case  of  buildings;  or  perma- 
nently attached  to  what  is  thus  permanent,  as  by  means  of 
cement,  plaster,  nails,  bolts,  or  screws. 

Fixtures,  removal  of  by  tenant:  See  post,  §  1019. 

Legislation  §  660.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  165.  The  code  commissioners  say:  "By  California 
and  Nevada  decisions  this  rule  has  been  a  little  modified,  so  as  to 
make  the  question  of  fixtures  depend  somewhat  upon  the  intent  or  pur- 
poses of  the  party  in  erecting  buildings  for  temporary  use.  It  is 
thought  best,  however,  to  preserve  the'  common-law  rules  in  terms  as 
contained  in  this  section." 

§  661.     Fixtures   attached   to   mines.     Sluice-boxes,   flumes, 
hose,  pipes,  railway  tracks,  cars,  blacksmith-shops,  mills,  and 
all  other  machinery  or  tools  used  in  working  or  developing  a 
mine,  are  to  be  deemed  affixed  to  the  mine. 
Legislation  §  661.     Enacted  March  21,  1872. 
Civ.  Code — 23 


§  670  CIVIL  CODE.  354 

§  662.  Appurtenances.  A  thing  is  deemed  to  be  incidental 
or  appurtenant  to  land  when  it  is  by  right  used  with  the  land 
for  its  benefit,  as  in  the  case  of  a  Avay,  or  watercourse,  or  of  a 
passage  for  light,  air,  or  heat  from  or  across  the  land  of 
another. 

Easements  and  servitudes:   See  post,  §§  801  et  seq. 
Legislation  §  662.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  166. 

§  663.  Personal  property.  Every  kind  of  property  that  is 
not  real  is  personal. 

.   Personal  property:   See  ante,  §  14,  subd.  3;  Pol.  Code,  §  3617. 

Legislation  §  663.  Enacted  Mareli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  167. 

TITLE.  11. 
Ownership. 

Chapter  I.  Owners.     §§  669-672. 

II.  Modifications  of  Ownership.    Articles  I-IV.     §§  678-726. 

III.  Rights  of  Owners.     §§  732,  733. 

IV.  Termination    of   Ownership.     §§  739-742. 

CHAPTER  I. 

Owners. 

§  669.     Owner. 

§  670.     Property  of  the  state. 

§  671.     Who  may  own  property. 

§  672.     Aliens  inheriting  must  claim  within  five  years. 

§669,  Owner.  All  property  has  an  owner,,  whether  that 
owner  is  the  state,  and  the  property  public,  or  the  owner  an 
individual,  and  the  property  private.  The  state  may  also  hold 
property  as  a  private  j^roprietor. 

Legislation  §  669.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  168. 

§  670.  Property  of  the  state.  The  state  is  the  owner  of  all 
land  below  tide-Avater,  and  below  ordinary  high-water  mark, 
bordering  upon  tide-Avater  within  the  state ;  of  all  land  below 
the  water  of  a  navigable  lake  or  stream ;  of  all  property  law- 
fully appropriated  by  it  to  its  own  use;  of  all  property  dedi- 
cated to  the  state ;  and  of  all  property  of  which  there  is  no 
other  owner.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  217.] 

Property  of  the  state.  Pol.  Code,  §§  40-44. 

Public  lands:   See  Pol.  Code,  §§  3395  et  seq. 

Escheat:   See  post,  §§  1405, 1406. 

Legislation  §  670.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  169),  and  then  read:  "The  state  is  the  owner  of 


355  NATURE   OP    PROPERTY.  §  672 

all  land  below  high-water  mark  bordering  upon  tide-water;  of  all  land 
below  the  water  of  a  lake  or  stream  which  constitutes  an  exterior 
boundary  of  the'  state;  of  all  property  lawfully  appropriated  by  it  to 
its  own  use;  of  all  property  dedicated  to  the  state,  and  of  all  property 
of  which  there  is  no  other  owner." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  217. 

§  671.  Who  may  own  property.  Any  person,  whether  citi- 
zen or  alien,  may  take,  hold,  and  dispose  of  property,  real  or 
personal,  within  this  state.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  218.] 

Aliens.     Right  to  inherit  property:     See  post,  §§  1404  et  seq. 

Aliens.     Control  of  property  by:   Const.,  art.  i,  §  17. 

•Alien  land  law:  See  Stats.,  1913,  p.  206;  General  Laws,  Act  128. 

Legislation  §  671.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  170;  Const.  1849,  art.  i,  §  17;  Eamires  v.  Kent, 
2  Cal.  558;  Attorney-General  v.  Folsom,  5  Cal.  373;  Sumssen  v.  Bofer, 
6  Cal.  250;  Norris  v.  Hoyt,  18  Cal.  217;  Farrel  v.  Enright,  12  Cal.  450; 
State  of  California  v.  Rogers,  13  Cal.  159)  and  then  read:  "Any  per- 
son, whether  citizen  or  alien,  may  take  and  hold  property,  real  or 
personal." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  218. 

§  672.     Aliens  inheriting-  must  claim  within  five  years.    If 

a  non-resident  alien  takes  by  succession,  he  must  appear  and 
claim  the  property  within  five  years  from  the  time  of  succes- 
sion, or  be  barred.     The  property  in  such  case  is  disposed  of  as 
provided  in  title  eight,  part  three.  Code  of  Civil  Procedure. 
Escheated  estates:    See   Code   Civ.   Proc,  §§  1269-1272. 
Failure  of  alien  to  claim  succession,  and  proceedings  on:   See  post, 
§§  1404-1407. 

Legislation  §  672.  1.  Enacted  March  21,  1872;  based  on  Stats.  1856, 
p.  137;  People  v.  Rogers,  13  Cal.  159. 

2.  Repeal  by  Stats.  1901,  p.  391;  unconstitutional.  See  note,  §  4, 
ante. 


§  680  CIVIL  CODE.  356 

CHAPTER  II. 

Modifications  of  Ownership. 

Article  I.  Interests  in  Property.     §§  678-703. 

II.  Conditions  of  Ownership.     §§707-711. 

III.  Eestraints  upon  Alienation.     §§  715-718. 

IV.  Accumulations.     §§  722-726. 

AETICLE  I. 

Interests  in  Property. 

§  678.  Ownership,  absohite  or  qualified. 

§  679.  When  absolute. 

§  680.  When  qualified. 

§  681.  Several  ownership,  what. 

§  682.  Ownership  of  several  persons. 

§  683.  Joint  interest,  what. 

§  684.  Partnership  interest,  what. 

§  685.  Interest  in  common,  what. 

§  686.  What  interests  are  in  common. 

§  687.  Community  property. 

§  688.  Interests  as  to  time. 

§  689.  Present  interest,  what. 

§  690.  Future  interest,  what. 

§  691.  Perpetual  interest,  what. 

§  692.  Limited  interest,  what. 

§  693.  Kinds  of  future  interests. 

§  694.  Vested  interests. 

§  695.  Contingent  interests. 

§  696.  Two  or  more  future  interests. 

§  697.  Certain  future  interests  not  to  be  void. 

§  698.  Posthumous  children. 

§  699.  Qualities  of  expectant  estates. 

§  700.  Same. 

§  701.  Interests  in  real  property. 

§  702.  Same. 

§  703.  What  future  interests  are  recognized. 

§  678.  Ownership,  absolute  or  qualified.  The  ownership  of 
property  is  either : 

1.  Absolute ;  or, 

2.  Qualified. 

Legislation  §  678.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  171. 

§  679.  When  absolute.  The  ownership  of  property  is  abso- 
lute when  a  single  person  has  the  absolute  dominion  over  it, 
and  may  use  it  or  dispose  of  it  according  to  his  pleasure,  sub- 
ject only  to  general  laws. 

Legislation  §  679.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.   Y.   Civ.   Code,  §  172.     The   code   commissioners   say:   "Thus   the   use 

of   gunpowder   is   restricted   by   general   laws,   but   its   ownership   may 

nevertheless  be  justly  called  absolute." 

§  680.  When  qualified.  The  ownership  of  property  is  quali- 
fied: 


357  -  INTERESTS  IN  PROPERTY.  §  685 

1.  When  it  is  shared  with  one  or  more  persons; 

2.  "When  the  time  of  enjoyment  is  deferred  or  limited; 

3.  When  the  use  is  restricted. 

Legislation  §  680.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  173. 

§  681.  Several  ownership,  what.  The  ownership  of  prop- 
erty by  a  single  person  is  designated  as  a  sole  or  several 
ownership. 

Legislation  §  681.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ  Code,  §  174. 

§  682.     Ownership   of  several   persons.     The   ownership   of 

property  by  several  persons  is  either : 

1.  Of  joint  interests; 

2.  Of  partnership  interests ; 

3.  Of  interests  in  common ; 

4.  Of  community  interest  of  husband  and  wife. 

"""    Legislation  §  682.     1.  Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  175. 

2.  Amendment  by  Stats.  1901,  p.  391;  unconstitutional.  See'  note, 
§  4,  ante. 

§  683.  Joint  interest,  what.  A  joint  interest  is  one  owned 
by  several  persons  in  equal  shares,  by  a  title  created  by  a  single 
will  or  transfer,  when  expressly  declared  in  the  will  or  trans- 
fer to  be   a  joint  tenancy,   or  when   granted   or  devised  to 

executors  or  trustees  as  joint  tenants. 

Interests  in  common:   See  post,  §§  685,  686. 

Legislation  §  683.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  176;  Stats.  1855,  p.  171,  §  1;  Dewey  v.  Lambier, 
7  Cal.  347;  Bowen  v.  May,  12  Cal.  351.  The  code  commissioners  say: 
"This  provision  is  intended  to  confine  the'  right  of  survivorship  to 
cases  in  which  its  creation  was  clearly  intended." 

2.  Amendment  by  Stats.  1901,  p.  391;  unconstitutional.  See  note, 
§  4,  ante. 

§  684.  Partnership  interest,  what.  A  partnership  interest 
is  one  owned  by  several  persons,  in  partnership,  for  partnership 
purposes. 

Partnership:   See  post,  §§  2395  et  seq. 

Legislation  §  684.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  177. 

§  685.  Interest  in  common,  what.  An  interest  in  common 
is  one  owned  by  several  persons,  not  in  joint  ownership  or 
partnership. 

Tenancy  in  common:  See  ante,  §  683;  post,  §  686. 
Partition:   See  Code  Civ.  Proc,  §§  752  et  seq. 
Husband  and  wife  as  tenants  in  common:   Sec    ante,  §  161. 
Devise  or  legacy  to  two  or  more  makes  them  owners  in  common:  See 
post,  §  1350. 


§  691  CIVIL  CODE.  358 

Legislation  §  685.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  178. 

§  686.  What  interests  are  in  common.  Every  interest 
created  in  favor  of  several  persons  in  their  own  right  is  an 
interest  in  common,  unless  acquired  by  them  in  partnership,  for 
partnership  purposes,  or  unless  declared  in  its  creation  to  be 
a  joint  interest,  as  provided  in  section  six  hundred  and  eighty- 
three,  or  unless  acquired  as  community  property. 
Interests  in  common:  See  ante,  §§  683,  685. 

Legislation  §  686.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  179;  Stats.  1855,  p.  171,  §  1. 

2.  Amendment  by  Stats.  1901,  p.  391;  unconstitutional.  See  note, 
§  4,  ante. 

§  687.     Community  property.     Community  property  is  prop- 
erty acquired  by  husband  and  wife,  or  either,  during  marriage, 
when  not  acquired  as  the  separate  property  of  either. 
Community  property:  See  ante,  §  164. 

Legislation  §  687.  Enacted  March  21,  1872;  based  on  Louisiana  Civ. 
Code,  art.  ccxxxvii,  p.  370.  The  code  commissioners  say:  "The  com- 
munity property  consists  of  the  profits  of  all  the  effects  of  which  the 
husband  has  the  administration  and  enjoyment,  either  of  right  or  in 
fact,  or  the  produce  of  the  reciprocal  industry  and  labor  of  both  hus- 
band and  wife,  and  of  the  estates  which  they  may  acquire  during  the 
marriage,  either  by  donations  made  jointly  to  them  both,  or  by  pur- 
chase, or  in  any  other  similar  way,  even  although  the  purchase  be'  only 
in  the  name  of  one  of  the  two  and  not  of  both,  because  in  that  case 
the  period  of  time  when  the  purchase  is  made  is  alone  attended  to,  and 
not  the  person  who  made  the  purchase." 

§  688.     Interests  as  to  time.     In  respect  to  the  time  of  en- 
joyment, an  interest  in  property  is  either: 

1.  Present  or  future ;  and, 

2.  Perpetual  or  limited. 

Legislation  §  688.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  180. 

§  689.     Present  interest,  what.     A  present  interest  entitles 
the  owner  to  the  immediate  possession  of  the  property. 

Legislation,  §  689,  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  181. 

§  690.     Future  interest,  what,     A  future  interest  entitles  the 
owner  to  the  possession  of  the  property  only  at  a  future  period. 

Accumulations  as  future  interests:   See  post,  §§  722  et  seq.,  733. 
Conditions  upon  enjoyment  of  estates:   See  post,  §§  707  et  seq. 
Terminating  future  interests:  See  post,  §  739  et  seq. 
Legislation  §  690.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  182. 

§  691.     Perpetual  interest,  what.     A  perpetual  interest  has  a 
duration  equal  to  that  of  the  property. 


359  INTERESTS  IN  PROPERTY.  §  698 

Legislation  §  691.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  183. 

§  692.     Limited   interest,    what.     A   limited   interest  has   a 

duration  less  than  that  of  the  property. 

Legislation  §  692.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code',  §  184. 

§  693.  Kinds  of  future  interests.  A  future  interest  is 
either : 

1.  Vested ;  or, 

2.  Contingent. 

Legislation  §  693.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  185. 

§  694.  Vested  interests.  A  future  interest  is  vested  when 
there  is  a  person  in  being  who  would  have  a  right,  defeasible  or 
indefeasible,  to  the  immediate  possession  of  the  property,  upon 
the  ceasing  of  the  intermediate  or  precedent  interest. 

Legislation  §  694.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  186. 

§  695.    Conting-ent  interests.    A  future  interest  is  contingent, 

whilst  the  person  in  Avhom,  or  the  event  upon  which,  it  is  lim- 
ited to  take  effect  remains  uncertain. 

Legislation  §  695.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  187. 

§  696.  Two  or  more  future  interests.  Two  or  more  future 
interests  may  be  created  to  take  effect  in  the  alternative,  so 
that  if  the  first  in  order  fails  to  vest,  the  next  in  succession 
shall  be  substituted  for  it,  and  take  effect  accordingly. 

Legislation  §  696.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code',  §  188. 

§  697.  Certain  future  interests  not  to  be  void.  A  future 
interest  is  not  void  merely  because  of  the  improbability  of  the 
contingency  on  which  it  is  limited  to  take  effect. 

Legislation  §  697.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  189. 

§  698.  Posthumous  children.  When  a  future  interest  is 
limited  to  successors,  heirs,  issue,  or  children,  posthumous  chil- 
dren are  entitled  to  take  in  the  same  manner  as  if  living  at  the 
death  of  their  parent. 

Future  interests  defeated  by  birth  of  posthumous  chUd:  See  post, 
§739. 

Succession  by  posthumous  children:  See  post,  §§  1306,  1339,  1403. 

Legislation  §  698.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
JSr.  Y.  Civ.  Code,  §  190;  Stats.  1855,  p.  171,  §  5. 


§  707  CIVIL  CODE.  360 

§  699.  Qualities  of  expectant  estates.  Future  interests  pass 
by  succession,  will,  and  transfer,  in  the  same  manner  as  present 
interests. 

Legislation  §  699.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  191. 

§  700.     Same.     A  mere  possibility,  such  as  the  expectancy  of 

an  heir  apparent,  is  not  to  be  deemed  an  interest  of  any  kind. 

Legislation  §  700.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code',  §  192. 

§  701.  Interests  in  real  property.  In  respect  to  real  or  im- 
movable i)roperty,  the  interests  mentioned  in  this  chapter  are 
denominated  estates,  and  are  specially  named  and  classified  in 
part  two  of  this  division. 

Legislation  §  701      Enacted  March  21,  1872;   based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  193. 

§  702.  Same.  The  names  and  classification  of  interests  in 
real  property  have  only  such  application  to  interests  in  per- 
sonal property  as  is  in  this  division  of  the  code  expressly 
provided. 

Legislation  §  702.     1.  Enacted    March    21,     1872;     based    on   Field's 
Draft,  N.  Y.  Civ.  Code,  §  194. 

2.  Amendment   by  Stats.   1901,   p.   392;   unconstitutional.     See   note, 
§  4,  ante. 

§  703.  What  future  interests  are  recognized.  No  future 
interest  in  proi^erty  is  recognized  by  the  law,  except  such  as  is 
defined  in  this  division  of  the  code. 

Legislation  §  703.     1.  Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  195. 

2.  Ameudmeut   by   Stats.    1901,   p.   392;    unconstitutional.     See   note. 
§  4,  ante. 

ARTICLE  IT. 

Conditions  of  Ownership. 

§  707.  Fixing  the  time  of  enjoyment. 

§  708.  Conditions. 

§  709.  Certain  conditions  precedent  void. 

§  710.  Conditions  restraining  marriage  void. 

§  711.  Conditions  restraining  alienation  void. 

§  707.     Fixing'  the  time  of  enjoyment.     The  time  when  the 
enjoyment  of  property  is  to  begin  or  end  may  be  determined  by 
computation,  or  be  made  to  depend  on  events.     In  the  latter 
case,  the  enjciyment  is  said  to  be  upon  condition. 
Conditional  legacies:  See  post,  §§  1345  et  seq. 

Legislation  §707.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  196. 


715.  How  Long  It  May  Be  Suspended.  [Except  in  the  single 
case  mentioned  in  section  seven  hundred  seventy-two,  the  abso- 
lute power  of  alienation  can  not  be  suspended,  by  any  limitation 
or    condition    whatever,    for    a    longer    period    than    as    follows: 

[1.  During  the  continuance  of  the  lives  of  persons  in  being 
at    the    creation    of    the    limitation    or    condition;    or 

[2.  For  a  period  not  to-  exceed  twenty-five  years  from  the 
time  of  the  creation  of  the  suspension.]  (In  effect  90  day.s  from 
and  after  April   27,    1917.     Stata    1917,   Chap.   539.       Civ.   Code,    1917. 


r 


n 


361  RESTRAINTS  UPON  ALIENATION.  §  715 

§  708.  Conditions.  Conditions  are  precedent  or  subsequent. 
The  former  fix  the  beginning,  the  latter  the  ending,  of  the  right. 

Conditional  obligations:   See  post,  §§  1434-1442. 

conditional  limitation.  Remainder  operating  to  abridge  precedent 
estate:  Post,  §  778. 

Conditions  precedent,  what  are:   See  post,  §§  1346,  1436. 

Conditions  subsequent,  what  are:   See  post,  §§  1349,  1438. 

Conditions  concurrent:   See  post,  §  1437. 

Legislation  §708.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  197. 

§  709.  Certain  conditions  precedent  void.  If  a  condition 
precedent  requires  the  performance  of  an  act  wrong  of  itself, 
the  instrument  containing  it  is  so  far  void,  and  the  right  cannot 
exist.  If  it  requires  the  performance  of  an  act  not  wrong  of 
itself,  but  otherwise  unlawful,  the  instrument  takes  effect  and 
the  condition  is  void. 

Legislation  §  709.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  198. 

2.  Amendment  bj'  Stats.  1901,  p.  392;  unconstitutional.     See  note,  §  4, 

ante, 

§  710.  Conditions  restraining-  marriage  void.  Conditions 
imposing  restraints  upon  marriage,  except  upon  the  mp,rriage 
of  a  minor,  are  void ;  but  this  does  not  affect  limitations  where 
the  intent  was  not  to  forbid  marriage,  but  only  to  give  the  use 
until  marriage.  [Amendment  approved' 1874;  Code  Amdts. 
1873-74,  p.  218.] 

Contracts  in  restraint  of  marriage:  See  post,  §  1676. 

Legislation  §  710.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  199),  and  then  e'nded  with  the  words  "are  void." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  218. 

§  711.  Conditions  restraining  alienation  void.  Conditions 
restraining  alienation,  when  repugnant  to  the  interest  created, 
are  void. 

Restraints  upon  alienation:   See  post,  §§  715,  772;  tit.  IV,  "Uses  and 
■  Trusts,"  post,  §§  847  et  seq. 

Legislation  §  711.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

IN.  Y.  Civ.  Code,  §  200. 
ARTICLE  III. 
Restraints  upon  Alienation. 

§  715.  How  long  it  may  be  suspended. 

§  716.  Future  interests  void,  which  suspend  power  of  alienation. 

§  717.  Period  of  lease  of  land  for  agricultural  purposes. 

§  718.  Period  of  lease  of  city  lots.     Property  of  minor  or  incompetent. 

§  715.  How  long  it  may  be  suspended.  The  absolute  power 
of  alienation  cannot  })e  suspended,  ])y  any  limitation  or  condi- 
tion whatever,  for  a  longer  period  than  during  the  continu- 
ance of  the  lives  of  persons  in  being  at  the  creation  of  the 


§  718  CIVIL  CODE.  -  362 

limitation  or  condition,  except  in  the  single  case  mentioned  in 
section  seven  hundred  and  seventy-two. 
Suspension  by  trust:   See  post,  §  771. 

Legislation  §715.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  201. 

§  716.  Future  interests  void,  which  suspend  power  of  aliena- 
tion. Every  future  interest  is  void  in  its  creation  which,  by 
any  possibility,  may  suspend  the  absolute  power  of  alienation 
for  a  longer  period  than  is  prescribed  in  this  chapter.  Such 
power  of  alienation  is  suspended  Avhen  there  are  no  persons 
in  being  by  whom  an  absolute  interest  in  possession  can  be 
conveyed. 

Legislation  §716.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  202. 

§  717.     Period  of  lease  of  land  for  agTicultural  purposes. 

No  lease  or  grant  of  land  for  agricultural  or  horticultural  pur- 
poses for  a  longer  period  than  fifteen  years,  in  which  shall  be 
reserved  any  rent  or  service  of  any  -kind,  shall  be  valid ;  pro- 
vided, that  any  land  of-  a  municipality  used  for  agricultural 
or  horticultural  purposes  and  upon  which  is  discharged  sewage 
or  waste  water  may  be  leased  for  a  period  not  exceeding 
twenty-five  years.  [Amendment  approved  1915 ;  Stats.  1915, 
p.  349.] 

Legislation  §  717.  1.  Enacted  March  21,  1872  (based  on  Stats.  1851, 
p.  169,  §  1;  Field's  Draft,  N.  Y.  Civ.  Code,  §  203),  and  then  read:  "No 
lease  or  grant  of  agricultural  land  for  a  longer  period  than  ten  years, 
in  which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall  be 
valid." 

2.  Amended  by  Stats.  1895,  p.  75,  to  read:  "No  lease  or  grant  of  land 
for  agricultural  purposes,  for  a  longer  period  than  ten  years,  in  which 
shall  be  reserved  any  rent  or  service'  of  any  kind,  shall  be  valid." 

3.  Amended  by  Stats.  1909,  p.  1000,  to  read:  "No  lease  or  grant  of 
land  for  agricultural  or  horticultural  purposes  for  a  longer  period  than 
fifteen  years,  in  which  shall  be  reserved  any  rent  or  service  of  any 
kind,  shall  be  valid." 

4.  Amended  by  Stats.  1915,  p.  349. 

§  718.  Period  of  lease  of  city  lots.  Property  of  minor  or 
incompetent.  No  lease  or  grant  of  any  town  or  city  lot  for  a 
longer  period  than  ninety-nine  years,  in  M'hich  shall  be  re- 
served any  rent  or  service  of  any  kind,  shall  be  valid ;  pro- 
vided, that  the  property  of  any  municipality,  or  any  minor  or 
incompetent  person,  shall  not  be  leased  for  a  longer  period 
than  ten  years,  excepting  that  the  sewer  farm  of  a  municipal- 
ity and  all  waters  and  sewage  used  or  discharged  thereon  may 
be  leased  for  a  period  not  exceeding  twenty-five  years. 
[Amendment  approved  1915;  Stats.  1915,  p.  349.] 

Legislation  §718.  1.  Enacted  March  21,  1872  (based  on  Stats.  1851, 
p.  169,  §  1;  Field's  Draft,  N.  Y.  Civ.  Code,  §  203),  and  then  read:  "No 


^•^      I  ^*^-    Prnrertv    Of    Minor   or    In- 
71S.     period   of   Lease   °^  ^^'^^   ^^^f^/^own    ^    city    lot    for    a 
competent.     No    lease    °'\ S-'f^^ /'^.^^^J     -^     which     shall     he     re- 
longer    period    than    -"f^J'-^^^^S.     hall  be  valid;   provided, 
served    any   rent   or   sei-^'.ce   ot   ^m J<ma.  ,   ^^    .,^^^^. 

that  the  property  of  ^-y^^'^'^'^ZT ll'  TloTJer  period  than  ten 
petent  person.  ^^^^l-^Jl^^'l:  o'f  a  muni^eipality  and  all 
>ear9.  excepting  that  tht.  ^^''^  ^  ^  thereon  may  be  leased 
waters  and  sewage  used  or  f >^^ha^^^  ^.^^,,.  ja^d  excepting 
for    a    period    not    exceeding    twent>-ly e    ye       •  ^^ 

that  the  tidelands  and  submerged  ^"^^^.^'^'^^  .^jacent  to  such 
the    state,    or    any    lands    be.ongmg    to    s^^b    c.ty        J    ^  ^^^ 

tidelands  and  submerged  -^^'^^^^^^^^  Tue  State  of  Ca.ifornia 
exceeding    forty    years    if    the    ^^ant  ^^^^    ^^^    p^^. 

of  the  use  Of  said  tidelands  -j'^^^^^^^^'ty,;,^  said  iands  may 
Vide    specifically    for    a    term    of   y^^^lH^    ,^^,3    3,^    lands    ad- 

be  leased.  Said  ^'^^'-^^/^.'./.^d  Tor  'nd-*---'  "^^^^  *'^  ''"'■• 
jacent  thereto  can  only  be  ^l^^^^'°\  ^^  harbor  of  said  c.ty. 
iose  of  improvement  -^/^^^^.^.^^.U  of  wharves,  docks,  piers 
and  the  construction  and  --"^--^^^  ^^^  ,,,  p,,poses  con- 
or    bull<head    piers    or    for    other    P  navigation    at   said 

sistent  with  the  requirements  ^^/"'^^X/xpnl  27.  191T.  Stats, 
harbor.l      (In   effect   00  days   trom   and   after   AP        ^^^     ^^^^     ^^^^ 

1917.    Chap.    572.)  <MHHB^v 


363  ACCUMULATIONS.  §  724 

lease  or  grant  of  any  town  or  city  lot,  for  a  longer  period  than  twenty 
years,  in  which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall 
be  valid." 

2.  Amended  by  Stats.  1903,  p.  247,  to  read:  "No  lease  or  grant  of  any 
town  or  city  lot,  for  a  longer  period  than  fifty  years,  in  which  shall 
be^  reserved  any  rent  or  service  of  any  kind,  shall  be  valid;  provided, 
that  the  property  of  any  municipality,  or  any  minor  or  incompetent 
person  shall  not  be  leased  for  a  longer  period  than  ten  years." 

3.  Amended  by  Stats.  1911,  p.  1391,  to  read:  "No  lease  or  grant  of 
any  town  or  city  lot  for  a  longer  period  than  ninety-nine  years,  in 
which  shall  be  reserved  any  rent  or  service  of  any  kind,  shall  be  valid; 
provided,  that  the  property  of  any  municipality,  or  any  minor  or  incom- 
petent person,  shall  not  be  leased  for  a  longer  period  than  ten  years." 

4.  Amended  by  Stats.  1915,  p.  349. 

ARTICLE  IV. 

Accumulations. 

§  722.  Dispositions  of  income. 

§  723.  Accumulations,  when  void. 

§  724.  Accumulation  of  income. 

§  725.  Other  directions,  when  void  in  part. 

§  726.  Application  of  income  to  support,  etc.,  of  minor. 

§  722.  Dispositions  of  income.  Dispositions  of  the  income 
of  property  to  accrue  and  to  be  received  at  any  time  subse- 
quent to  the  execution  of  the  instrument  creating  such  disposi- 
tion, are  governed  by  the  rules  prescribed  in  this  title  in 
relation  to  future  interests. 

Legislation  §722.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  204. 

§  723.  Accumulations,  when  void.  All  directions  for  the 
accumulation  of  the  income  of  property,  except  such  as  are 
allowed  by  this  title,  are  void. 

Legislation  §723.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  205. 

§  724.  Accumulation  of  income.  An  accumulation  of  the 
income  of  property,  for  the  l^enefit  of  one  or  more  persons,  may 
be  directed  by  any  will  or  transfer  in  writing  sufficient  to  pass 
the  property  out  of  wliich  the  fund  is  to  arise,  as  follows : 

1.  If  such  accumulation  is  directed  to  commence  on  the  crea- 
tion of  the  interest  out  of  which  the  income  is  to  arise,  it  must 
be  made  for  the  benefit  of  one  or  more  minors  then  in  being, 
and  terminate  at  the  expiration  of  their  minority ;  or, 

2.  If  such  accumuhition  is  directed  to  commence  at  any  time 
subsequent  to  the  creation  of  the  iiiterest  out  of  which  the  in- 
come is  to  arise,  it  must  commence  Avithin  the  time  in  this  title 
permitted  for  the  vesting  of  future  interests,  and  during  the 
minority  of  the  beneficiaries,  and  terminate  at  the  expiration  of 
such  minority. 

Ownership  of  undisposed  accumulations:  See  post,  §  733. 
Accumulations  liable  for  debts:  See  post,  §  859. 


§733  CIVIL  CODE.  364 

Restraint  upon  disposition  of  beneficiary's  interest:  See  post,  §  867. 
Bequest  of  income:  See  post,  §§  1357,  subd.  3,  1366. 
Annuities:   See  post,  §§  1357,  subd.  3,  1366. 

Legislation  §  724.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  206. 

§  725.  Other  directions,  when  void  in  part.  If  in  either  of 
the  cases  mentioned  in  the  last  section  the  direction  for  an 
accumulation  is  for  a  longer  term  than  during  the  minority  of 
the  beneficiaries,  the  direction  only,  whether  separable  or  not 
from  other  provisions  of  the  instrument,  is  void  as  respects  the 
time  beyond  such  minority. 

•Legislation  §725.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  207. 

§  726.     Application  of  income  to  support,   etc.,   of  minor. 

When  a  minor  for  whose  benefit  an  accumulation  has  been 
directed  is  destitute  of  other  sufficient  means  of  support  and 
education,  the  proper  court,  upon  application,  may  direct  a 
suitable  sum  to  be  applied  thereto  out  of  the  fund. 

Maintenance  of  ward  out  of  his  own  estate:   See   Code  Civ.    Proc, 
■§§1770,   1771. 

Legislation  §726.     Enacted  March  21,"  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  208. 

CHAPTER  III. 

Rights  of  Owners. 

§  732.     Increase  of  property. 

§  733.     In  certain  cases,  who  entitled  to  income  of  property. 

§  732.  Increase  of  property.  The  owner  of  a  thing  owns 
also  all  its  products  and  accessions. 

Accessions  to  real  property:  See  post,  §§  1013  et  seq. 
Accessions  to  personal  property:   See  post,  §§  1025  et  seq. 
Legislation  §732.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  209. 

§  733.    In  certain  cases,  who  entitled  to  income  of  property. 

When,  in  consequence  of  a  ^'alid  limitation  of  a  future  interest, 
there  is  a  suspension  of  the  power  of  alienation  or  of  the  owner- 
ship during  the  continuation  of  Avhich  the  income  is  undisposed 
of,  and  no  valid  direction  for  its  accunmlation  is  given,  such 
income  belongs  to  the  persons  presumptively  entitled  to  the 
next  eventual  interest. 

Legislation  §733.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  210. 


365  TERMINATION  OF  OWNERSHIP.  §  742 

CHAPTER  IV. 

Termination  of  Ownership. 

§  739.  Future  interests,  when  defeated. 

§  740.  Same. 

§  741.  Future  interests,  when  not   defeated. 

§  742.  Same. 

§  739.  Future  interests,  when  defeated.  A  future  iuterest, 
depending  on  the  contingency  of  the  death  of  any  person  with- 
out successors,  heirs,  issue,  or  children,  is  defeated  by  the  birth 
of  a  posthumous  child  of  such  person,  capable  of  taking  by 
succession. 

Posthumous  children:   See  ante,  §  698. 

Legislation  §739.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  211;  Stats.  1855,  p.  171,  §  4. 

§  740.  Same.  A  future  interest  may  be  defeated  in  any 
manner  or  by  any  act  or  means  which  the  party  creating  such 
interest  provided  for  or  authorized  in  the  creation  thereof ;  nor 
is  a  future  interest,  thus  liable  to  be  defeated,  to  be  on  that 
ground  adjudged  void  in  its  creation. 

Legislation  §740.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  212. 

§  741.  Future  interests,  when  not  defeated.  No  future 
interest  can  be  defeated  or  ])arred  by  any  alienation  or  other 
act  of  the  owner  of  the  intermediate  or  precedent  interest,  nor 
by  any  destruction  of  such  precedent  interest  by  forfeiture,  sur- 
render, merger,  or  otherwise,  except  as  provided  by  the  next 
section,  or  where  a  forfeiture  is  imposed  by  statute  as  a  penalty 
for  the  violation  thereof. 

Future  interests:  See  post,  §  767. 

Legislation  §741.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  213. 

§  742.  Same.  No  future  interest,  valid  in  its  creation,  is  de- 
feated by  the  determination  of  the  precedent  interest  before 
the  happening  of  the  contingency  on  which  the  future  interest 
is  limited  to  take  effect;  but  should  such  contingency  after- 
wards happen,  the  future  interest  takes  effect  in  the  same 
manner  and  to  the  same  extent  as  if  the  precedent  interest  had 
continued  to  the  same  period. 

Legislation  §  742.     Enacted  March  21,  1872j  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  214. 


I 


§  749  CIVIL  cobE.  ^66 

TITLE  III. 
General  Definitions. 

§  748.     Income,  what. 

§  749.     Time  of  creation,  what.  ^ 

§  748.  Income,  what.  The  income  of  property,  as  the  term 
is  used  in  this  part  of  the  code,  includes  the  rents  and  profits  of 
real  property,  the  interest  of  money,  dividends  upon  stock,  and 
other  produce  of  personal  property. 

Legislation  §  748.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  215. 

§  749.  Time  of  creation,  what.  The  delivery  of  the  grant, 
where  a  limitation,  condition,  or  future  interest  is  created  by 
grant,  and  the  death  of  the  testator,  where  it  is  created  by  will, 
is  to  be  deemed  the  time  of  the  creation  of  the  limitation,  condi- 
tion, or  interest,  within  the  meaning  of  this  part  of  the  code. 
Legislation  §  749.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  216. 


367  ESTATES  IN   GENERAL.  §  755 

PART  II. 

REAL  OR  IMMOVABLE  PROPERTY. 

Title      I.  General  Provisions.     §  755. 

II.  Estates  in  Real  Property.     §§  761-811. 

III.  Rights  and  Obligations  of  Owners.     §§  818-843. 

IV.  Uses  and  Trusts.     §§  847-871. 

V.     Powers.     §§878-940.     [Repealed.] 

TITLE    I. 
General  Provisions. 

§  755.     Real  property,  how  governed. 

§  755.  Real  property,  how  governed.  Real  property  within 
this  state  is  governed  by  the  law  of  this  state,  except  where  the 
title  is  in  the  United  States.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  218.] 

Territorial  jurisdiction  of  state:  See  Pol.  Code,  §§  33,  34. 
Legislation  §  755.     1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  217),  and  then  read:  "Real  property  within  this  state 
is  governed  by  the  law  of  this  state." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  218,  adding  the  exception. 

TITLE  11. 

Estates  in  Real  Property. 

Chapter  I.     Estates  in  General.     §§  761-781. 

n.     Termination  of  Estates.     §§  789-793. 
III.     Servitudes.     §§801-811. 

CHAPTER  I. 

Estates  in  General. 

§  761.  Enumeration  of  estates. 

§  762.  What  estate  a  fee-simple. 

§  763.  Conditional   fees   and    estates-tail    abolished. 

§  764.  Certain  remainders  valid. 

§  765.  Freeholds.     Chattels  real.     Chattel  interests. 

§  766.  Estates  for  life  of  a  third  person,  when  a  freehold,  etc. 

§  767.  Future  estates,  limitationa  of. 

§  768.  Reversions. 

§  769.  Remainders. 

§  770.  Suspended  ownership. 


§  764  CIVIL  CODE.  368 

§  771.  Suspension  by  trust. 

§  772.  Contingent  remainder  in  fee. 

§  773.  Eemainders,  future  and  contingent  estates,  how  created. 

§  774.  Limitation  of  successive  estates  for  life. 

§  775.  Eemainders. 

§  776.  Contingent  remainder  on  a  term  of  years. 

§  777.  Remainder  of  .estates  for  life. 

§  778.  Eemainder  upon  a  contingenc5^ 

§  779.  Heirs  of  a  tenant  for  life,  wiien  to  take  as  purchasers. 

§  780.  Construction  of  certain  remainders. 

§  781.  Effect  of  power  of  appointment. 

§  761.  Enumeration  of  estates.  Estates  in  real  property,  in 
respect  to  the  duration  of  their  enjoyment,  are  either: 

1.  Estates  of  inheritance  or  perpetual  estates ; 

2.  Estates  for  life ; 

3.  Estates  for  years ;  or, 

4.  Estates  at  will. 

Freeholds,  chattels  real  and  chattel  interests:   See  post,  §  765. 
Legislation  §761.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  218. 

§  762.  What  estate  a  fee-simple.  Every  estate  of  inherit- 
ance is  a  fee,  and  every  such  estate,  when  not  defeasible  or  con- 
ditional, is  a  fee-simple  or  an  absolute  fee.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  218.] 

Transferring   fee.    Words    of   inheritance   not   essential:  See    post, 

§  1072. 

Devising  fee.     Term  "heirs"  not  essential:  Post,  §  1329. 

Legislation  §762.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  219),  and  then  read:  "Every  estate  of  inheritance, 
notwithstanding  the  abolition  of  tenures,  continues  to  be  called  a  fee- 
simple,  or  fee;  and  evpry  such  estate,  when  not  defeasible  or  condi- 
tional, is  called  a  fee-simple  absolute,  or  an  absolute  fee." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  218. 

3.  Amendment  by  Stats.  1901,  p.  392;  unconstitutional.  See  note, 
§  4,  ante. 

§  763.  Conditional  fees  and  estates-tail  abolished.  Estates- 
tail  are  abolished,  and  every  estate  which  would  be  at  common 
law  adjudged  to  be  a  fee-tail  is  a  fee-simple ;  and  if  no  valid 
remainder  is  limited  thereon,  is  a  fee-simple  absolute. 

Legislation  §  763.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  220.  The  code  commissioners  say:  "The  words  'con- 
ditional fees  at  common  law'  and  'fee-tail  by  the  statute  de  donis'  are 
substituted  for  the  words  'fee-tail,  according  to  the  law  of  this  state 
as  it  existed  on  the  twelfth  day  of  July,  1872,'  in  the  New  York  Civil 
Code.  It  is  not  certain  whether  our  act  adopting  the  common  law 
included  the  conditional  fee  at  common  law^  or  its  successor,  the  fee- 
tail,  under  the  statute  de  donis.  The  codes  supersede  both,  and  hence 
both  are  named  as  abolished." 

§  764.  Certain  remainders  valid.  Where  a  remainder  in  fee 
is  limited  upon  any  estate,  which  would  by  the  common  law  be 


369  ESTATES   IN   GENERAL.  §  770 

adjudged  a  fee-tail,  such  remainder  is  valid  as  a  contingent 
limitation  upon  a  fee,  and  vests  in  possession  on  the  death  of 
the  first  taker,  without  issue  living  at  the  time  of  his  death. 

Legislation  §  764.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  221. 

§  765.  Freeholds.  Chattels  real.  Chattel  interests.  Es- 
tates of, inheritance  and  for  life  are  called  estates  of  freehold; 
estates  for  years  are  chattels  real ;  and  estates  at  will  are 
chattel  interests,  but  are  not  liable  as  such  to  sale  on  execution. 
Legislation  §  765,     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  222. 

§  766.  Estates  for  life  of  a  third  person,  when  a  freehold, 
etc.  An  estate  during  the  life  of  a  third  person,  whether  lim- 
ited to  heirs  or  otherwise,  is  a  freehold.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  218.] 

Legislation  §  766.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  223),  and  then  read:  "An  estate  during  the  life  of 
a  third  person,  whether  limited  to  heirs  or  otherwise,  is  a  freehold 
only  during  the  life  of  the  grantee  or  devisee.  After  his  death  it  is 
a  chattel  real." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  218. 

§  767.  Future  estates,  limitations  of.  A  future  estate  may 
be  limited  by  the  act  of  the  party  to  commence  in  possession  at 
a  future  day,  either  without  the  intervention  of  a  precedent 
estate,  or  on  the  termination,  by  lapse  of  time  or  otherwise,  of 
a  precedent  estate  created  at  the  same  time. 
Future  interests:   See  ante,  §§    739  et  seq. 

Legislation  §  767.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  224. 

§  768.  Reversions.  A  reversion  is  the  residue  of  an  estate 
left  by  operation  of  law  in  the  grantor  or  his  successors,  or  in 
the  successors  of  a  testator,  commencing  in  possession  on  the 
determination  of  a  particular  estate  granted  or  devised. 

Legislation  §  768.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  225. 

§  769.  Remainders.  When  a  future  estate,  other  than  a  re- 
version, is  dependent  on  a  precedent  estate,  it  may  be  called 
a  remainder,  and  may  be  created  and  transferred  by  that  name. 
Legislation  §  769.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  226. 

§  770.  Suspended  ownership.  The  absolute  ownership  of  a 
term  of  years  cannot  be  suspended  for  a  longer  period  than  the 
absolute  poAver  of  alienation  can  be  suspended  in  respect  to 
a  fee.  [Amendment  approved  1874 ;  Code  Amdts.  1873-74, 
p.  218.] 

Civ.  Code — 24 


§  774  CIVIL  CODE.  370 

Legislation  §  770.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  227),  and  then  read:  "The  provisions  of  title  II  of 
part  I  of  this  division,  relative  to  future  estates,  apply  to  limitations 
of  chattels  real,  as  well  as  of  freehold  estates,  so  that  the  absolute 
ownership  of  a  term  of  years  cannot  be  suspended  for  a  longer  period 
than  the  absolute  power  of  alienation  can  be  suspended  in  respect  to 
a  fee."  • 

2.  Amended  by  Code  Amdts.  1873-74,  p.  218. 

§  771.  Suspension  by  trust.  The  suspension  of  all  power 
to  alienate  the  subject  of  a  trust,  other  than  a  power  to  ex- 
change it  for  other  property  to  be  held  upon  the  same  trust,  or 
to  sell  it  and  reinvest  the  proceeds  to  be  held  upon  the  same 
trust,  is  a  suspension  of  the  power  of  alienation,  within  the 
meaning  of  section  seven  hundred  and  fifteen. 

Legislation  §  771.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  228. 

§  772.  Contingent  remainder  in  fee.  A  contingent  re- 
mainder in  fee  may  be  created  on  a  prior  remainder  in  fee,  to 
take  effect  in  the  event  that  the  persons  to  whom  the  first  re- 
mainder is  limited  die  under  the  age  of  tAventy-one  years,  or 
upon  any  other  contingency  by  which  the  estate  of  such  per- 
sons may  be  determined  before  they  attain  majority. 

Legislation  §  772.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  229. 

§  773.  Remainders,  future  and  contingent  estates,  how 
created.  Subject  to  the  rules  of  this  title,  and  of  part  one  of 
this  division,  a  freehold  estate,  as  well  as  a  chattel  real,  may  be 
created  to  commence  at  a  future  day ;  an  estate  for  life  may 
be  created  in  a  term  of  years,  and  a  remainder  limited  thereon ; 
a  remainder  of  a  freehold  or  chattel  real,  either  contingent  or 
vested,  may  be  created,  expectant  on  the  determination  of  a 
term  of  years ;  and  a  fee  may  be  limited  on  a  fee,  upon  a  con- 
tingency, which,  if  it  should  occur,  must  happen  within  the 
period  prescribed  in  this  title. 

Legislation  §  773.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  230. 

§  774.  Limitation  of  successive  estates  for  life.  Successive 
estates  for  life  cannot  be  limited,  except  to  persons  in  being  at 
the  creation  thereof,  and  all  life  estates  subsequent  to  those  of 
persons  in  being  are  void ;  and  upon  the  death  of  those  persons, 
the  remainder,  if  valid  in  its  creation,  takes  effect  in  the  same 
manner  as  if  no  other  life  estate  had  been  created.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  219.] 

Legislation  §  774.     1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 

N.   Y.   Civ.   Code,  §231),   and   then   read:    •'Successive   estates  for   life 

cannot  be  limited,  except  to  persons  in  being  at  the  creation  thereof; 

and  upon   the   death  of  those  persons   the   remainder,  if  valid  in  its 


371  ESTATES  IN  .GENERAL.  §  779 

creation,  takes  effect  in  the  same  manner  as  if  no  other  life  estates 
had  been  created." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  219. 

§  775.  Remainders.  No  remainder  can  be  created  upon 
successive  estates  for  life,  provided  for  in  the  preceding  sec- 
tion, unless  such  remainder  is  in  fee;  nor  can  a  remainder  be 
created  upon  such  estate  in  a  term  for  years,  unless  it  is  for  the 
whole  residue  of  such  term.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  219.] 

Legislation  §  775.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y  Civ.  Code,  §  232),  and  then  read:  "No  remainder  can  be  created 
upon  successive  estates  for  life,  unless  such  remainder  is  in  fee;  nor 
can  a  remainder  be  created  upon  such  estates  in  a  term  for  years, 
unless  it  is  for  the  whole  residue  of  such  term." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  219. 

§  776.  Contingent  remainder  on  a  term  of  years.  A  con- 
tingent remainder  cannot  be  created  on  a  term  of  years,  unless 
the  nature  of  the  contingency  on  which  it  is  limited  is  such  that 
the  remainder  must  vest  in  interest  during  the  continuance  or 
at  the  termination  of  lives  in  being  at  the  creation  of  such 
remainder. 

Legislation  §  776.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  y.  Civ.  Code,  §  234. 

§  777.  Remainder  of  estates  for  life.  No  estate  for  life  can 
be  limited  as  a  remainder  on  a  tei'm  of  years,  except  to  a  per- 
son in  being  at  the  creation  of  such  estate. 

Legislation  §  777.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  235. 

§  778.     Remainder  upon  a  contingency.     A  remainder  may 

be  limited  on  a  contingency  which,  in  case  it  should  happen, 

will  operate  to  abridge  or  determine  the  precedent  estate ;  and 

every  such  remainder  is  to  be  deemed  a  conditional  limitation. 

Construction  of  certain  remainders:  See  post,  §  780. 

Legislation  §  778.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  236. 

§  779.     Heirs  of  a  tenant  for  life,  when  to  take  as  purchasers. 

When  a  remainder  is  limited  to  the  heirs,  or  heirs  of  the  body, 
of  a  person  to  whom  a  life  estate  in  the  same  property  is  given, 
the  persons  who,  on  the  termination  of  the  life  estate,  are  the 
successors  or  heirs  of  the  body  of  the  owner  for  life,  are  en- 
titled to  take  by  virtue  of  the  remainder  so  limited  to  them, 
and  not  as  mere  successors  of  the  owner  for  life. 

Legislation  §  779.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  237.    . 


§  791  CIVIL  CODE.  ,  372 

§  780.  Construction  of  certain  remainders.  When  a  re- 
mainder on  an  estate  for  life  or  for  years  is  not  limited  on  a 
contingency  defeating  or  avoiding  such  precedent  estate,  it  is 
to  be  deemed  intended  to  take  effect  only  on  the  death  of  the 
first  taker,  or  the  exj^iration,  by  lapse  of  time,  of  such  term  of 
years. 

Legislation  §  780.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  238. 

§  781.  Effect  of  power  of  appointment.  A  general  or 
special  power  of  appointment  does  not  prevent  the  vesting  of 
a  future  estate  limited  to  take  effect  in  case  such  power  is  not 
executed. 

Legislation  §  781.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  239. 

CHAPTER  II. 

Termination  of  Estates. 

§  789.  Termination  of  estates. 

§  790.  Effect  of  notice. 

§  791.  Ee-entry,  when  and  how  to  be  made. 

§  792.  Summary  proceedings  in  certain  cases  provided  for. 

§  793.  Notice  not  necessary  before  action. 

§  789.  Termination  of  estates.  A  tenancy  or  other  estate  at 
will,  however  created,  may  be  terminated  by  the  landlord's  giv- 
ing notice  in  writing  to  the  tenant,  in  the  manner  prescribed 
by  section  1162  of  the  Code  of  Civil  Procedure,  to  remove  from 
the  premises  within  a  period  of  not  less  than  thirty  days,  to  be 
specified  in  the  notice.  [Amendment  approved  1911 ;  Stats. 
1911,  p.  61.] 

Changing  terms  of  tenancy:  See  post,  §  827. 

Legislation  §  789.  1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  240;  Stats.  1861,  p.  514,  §  1.  As  enacted  in  1872  the 
section  read:  "A  tenancj^  or  other  estate  at  will,  however  created,  may 
be  terminated  by  the  landlord's  giving  notice  in  writing  to  the  tenant, 
in  the  manner  prescribed  by  section  eleven  hundred  and  sixty-two  of 
the  Code  of  Civil  Procedure,  to  remove  from  the  premises  within  a 
period  of  not  less  than  one  month,  to  be  specified  in  the  notice." 
2.  Amended  by  Stats.  1911,  p.  61. 

•  §  790.  Effect  of  notice.  After  such  notice  has  been  served, 
and  the  period  specified  by  such  notice  has  expired,  but  not 
before,  the  landlord  may  re-enter,  or  proceed  according  to  law 
to  recover  i^ossession. 

Legislation  §  790.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  242;  Stats.  1861,  p.  514,  §  3. 

§  791.  Re-entry,  when  and  how  to  be  made.  AVhenever  the 
right  of  re-entry  is  given  to  a  grantor  or  lessor  in  any  grant 


373  SERVITUDES.  §  801 

or  lease,  or  otherwise,  such  re-entry  may  be  made  at  any  time 
after  the  right  has  accrued,  upon  three  days'  notice,  as  pro- 
vided in  sections  eleven  hundred  and  sixty-one  and  eleven  hun- 
dred and  sixty-two.  Code  of  Civil  Procedure. 

Legislation  §  791.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  243. 

§  792.     Summary  proceedings  in  certain  cases  provided  for. 

Summary  proceedings  for  obtaining  possession  of  real  property 
forcibly  entered,  or  forcibly  and  unlawfully  detained,  are  pro- 
vided for  in  sections  eleven  hundred  and  fifty-nine  to  eleven 
hundred  and  seventy-five,  both  inclusive,  of  the  Code  of  Civil 
Procedure. 

Legislation  §  792.     Enacted  March   21,  1872. 

§  793.  Notice  not  necessary  before  action.  An  action  for 
the  possession  of  real  property  leased  or  granted,  with  a  right 
of  re-entry,  may  be  maintained  at  any  time,  after  the  right  to 
re-enter  has  accrued,  without  the  notice  prescribed  in  section 
seven  hundred  and  ninety-one.  [Amendment  approved  1905 ; 
Stats.  1905,  p.  599.] 

Legislation  §  793.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  244),  and  then  read:  "An  action  for  the  pos- 
session of  real  property  leased  or  granted,  vrith  a  right  of  re-entry, 
may  be  maintained  at  any  time,  in  the  district  court,  after  the  right 
to  re-enter  has  accrued,  without  the  notice  prescribed  in  section  791." 

2.  Amendment  by  Stats.  1901,  p.  392;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  599. 

CHAPTER  III. 

Servitudes. 

§  801.  Servitudes  attached  to  land. 

§  802.  Servitudes  not  attached  to  land. 

§  803.  Designation  of  estates. 

§  804.  By  whom  grantable. 

§  80.5.  By  whom  held. 

§  806.  Extent  of  servitudes. 

§807.  Apportioning  easements. 

§  808.  Rights  of  owner  of  future  estate. 

§  809.  Actions  by  owner  and  occupant  of  dominant  tenement. 

§  810.  Actions  by  owner  of  servient  tenement. 

§  811.  How  extinguished. 

§  801.  Servitudes  attached  to  land.  The  following  land 
burdens,  or  servitudes  upon  land,  may  be  attached  to  other 
land  as  incidents  or  appurtenances,  and  are  then  called  ease- 
ments : 

1.  The  right  of  pasture; 

2.  The  right  of  fishing; 


§  803  CIVIL  CODE.  -  374 

3.  The  right  of  taking  game  ; 

4.  The  right  of  way; 

5.  The  right  of  taking  water,  Avood,  minerals,  and  other 
things;  ,  4 

6.  The  right  of  transacting  business  upon  land ; 

7.  The  right  of  conducting  lawful  sports  upon  land ; 

8.  The  right  of  receiving  air,  light,  or  heat  from  or  over,  or 
discharging  the  same  upon  or  over  land ; 

9.  The  right  of  receiving  Avater  from  or  discharging  the  same 
upon  land ; 

10.  The  right  of  flooding  land  ; 

11.  The  right  of  having  water  flow  without  diminution  or 
disturbance  of  any  kind ; 

12.  The  right  of  using  a  wall  as  a  party-wall ; 

13.  The  right  of  receiving  more  than  natural  support  from 
adjacent  land  or  things  affixed  thereto ; 

14.  The  right  of  having  the  whole  of  a  division  fence  main- 
tained by  a  coterminous  owner ; 

15.  The  right  of  having  public  conveyances  stopped,  or  of 
stopping  the  same  on  land ; 

16.  The  right  of  a  seat  in  church ; 

17.  The  right  of  burial. 

Coterminous  owners.     Eights  and  duties:   See  post,  §§  832,  841. 

Easements  passing  with  property:  See  post,  §  1104. 

Flow  of  water:  See  ante,  §  5.52. 

Legislations  801.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  24.5. 

2.  Amendment  by  Stats.  1901,  p.  392;  unconstitutional.  See  note, 
§  4,  ante. 

§  802.  Servitudes  not  attached  to  land.  The  following  land 
burdens,"  or  servitudes  upon  land,  may  be  granted  and  held, 
though  not  attached  to  land : 

One.     The  right  to  pasture,  and  of  fishing  and  taking  game. 

Two.     The  right  of  a  seat  in  church. 

Third.     The  right  of  burial. 

Four.     The  right  of  taking  rents  and  tolls. 

Five.     The  right  of  way. 

Six.  The  right  of  taking  water,  wood,  minerals,  or  other 
things.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  219.] 

Legislation  §  802.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft. 

X.  Y.  Civ.  Code,  §  246. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  219,  (1)  in  subd.  One,  adding 

"to  pasture,  and"  after  "The  right";   (2)  adding  subd.  Six. 

§  803.  Designation  of  estates.  The  land  to  Avhich  an  ease- 
ment is  attached  is  called  the  dominant  tenement;  the  land 


375  SERVITUDES.  §  810 

upon  which  a  burden  or  servitude  is  laid  is  called  the  servient 
tenement. 

Legislation  §  803.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  247. 

§  804.     By  whom  grantable.     A  servitude  can  be  created 
only  by  one  who  has  a  vested  estate  in  the  servient  tenement. 
Legislation  §  804.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  248. 

§  805.  By  whom  held.  A  servitude  thereon  cannot  be  held 
by  the  owner  of  the  servient  tenement. 

Servitude  extinguished  lay  merger  of  estates:  See  post,  §  811. 
Legislation  §  805.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  249. 

§  806.  Extent  of  servitudes.  The  extent  of  a  servitude  is 
determined  by  the  terms  of  the  grant,  or  the  nature  of  the  en- 
joyment by  which  it  was  acquired. 

Legislation  §  806.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  250. 

§  807.  Apportioning"  easements.  In  case  of  partition  of  the 
dominant  tenement  the  burden  must  be  apportioned  according 
to  the  division  of  the  dominant  tenement,  but  not  in  such  a  way 
as  to  increase  the  burden  upon  the  servient  tenement. 

Legislation  §  807.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  251. 

§  808.  Rights  of  owner  of  future  estate.  The  OAvnei  of  a 
future  estate  in  a  dominant  tenement  may  use  easements  at- 
tached thereto  for  the  purpose  of  viewing  waste,  demanding 
rent,  or  removing  an  obstruction  to  the  enjoyment  of  such  ease- 
ments, although  such  tenement  is  occupied  by  a  tenant. 

Legislation  §  808.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  252. 

§  809.  Actions  by  owner  and  occupant  of  dominant  tene- 
ment. The  owner  of  any  estate  in  a  dominant  tenement,  or  the 
occupant  of  such  tenement,  may  maintain  an  action  for  the 
enforcement  of  an  easement  attached  thereto. 

Legislation  §  809.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  253. 

§  810.  Actions  by  owner  of  servient  tenement.  The  owner 
in  fee  of  a  sorvioiit  tenement  may  maintain  an  action  for  the 
possession  of  the  land,  against  any  one  unlawfully  possessed 
thereof,  though  a  servitude  exists  thereon  in  favor  of  the 
public. 

Legislation  §  810.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code;  §  254. 


§  819  CIVIL  CODE.  876 

§811.     How  extinguished.     A  servitude  is  extinguished: 

1.  By  the  yesting  of  the  I'ight  to  the  servitude  and  the  right 
to  the  servient  tenement  in  the  same  person;  - 

2.  By  the  destruction  of  the  servient  tenement ; 

3.  By  the  performance  of  any  act  upon  either  tenement,  by 
the  owner  of  the  servitude,  or  with  his  assent,  which  is  incom- 
patible with  its  nature  or  exercise ;  or, 

4.  When  the  servitude  was  acquired  by  enjoyment,  by  disuse 
thereof  by  the  owner  of  the  servitude  for  the  period  prescribed 
for  acquiring  title  by  enjoyment. 

Extinguishment  of  servitude.  Subd.  1.  Vesting  of  right  to  servitude 
and  right  to  servient  tenement  in  same  person:   See  §  805,  ante. 

Legislation  §  811.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,'  §  250. 

TITLE  III. 

Rights  and  Obligations  of  Owners. 

Chapter  I.     Eights  of  Owners.     Articles  I,  11.     §§  818-834. 
II.     Obligations  of  Owners.     §§  840-843. 

CHAPTER  I. 

Rights  of  Owners. 

Article  I.     Incidents   of  Ownership.     §§  818-827. 
II.     Boundaries.     §§  829-834. 

ARTICLE  I. 

Incidents  of  Ownership. 

§  818.  Rights  of  tenant  for  life. 

§  819.  Rights  of  tenant  for  years,  etc. 

■    §  820.  Same. 

§  821.  Rights  of  grantees  of  rents  and  reversion. 

§  822.  Assignee  of  lessee,  remedies  of  lessor  against. 

§  823.  Rights  of  lessees  and  their  assignees,  etc. 

§  824.  Remedy  on  leases  for  life. 

§  825.  Rent  dependent  on  life. 

§  826.  Remedy  of  reversioners,  etc. 

§  827.  Terms  of  lease  may  be  changed  by  notice. 

§  818.  Rights  of  tenant  for  life.  The  owner  of  a  life  estate 
may  use  the  land  in  the  same  manner  as  the  owner  of  a  fee- 
simple,  except  that  he  must  do  no  act  to  the  injury  of  the 
inheritance. 

Duties  of  tenants  for  life:   See  post,  §  840. 

Legislation  §  818.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  S  257. 

§  819.  Rights  of  tenant  for  years,  etc.  A  tenant  for  years 
or  at  will,  unless  he   is  a  wrong-door  by  holding  over,  may 


377  INCIDENTS   OF   OWNERSHIP.  §  823 

occupy  the  buildings,  take  the  annual  products  of  the  soil,  work 
mines  and  quarries  open  at  the  commencement  of  his  tenancy. 
Legislation  §  819.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  258. 

§  820.  Same.  A  tenant  for  years  or  at  will  has  no  other 
rights  to  the  property  than  such  as  are  given  to  him  by  the 
agreement  or  instrument  by  which  his  tenancy  is  acquired,  or 
by  the  last  section. 

Legislation  §  820.     Euacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  259. 

§  821.  Rights  of  grantees  of  rents  and  reversion.  A  person 
to  whom  any  real  property  is  transferred  or  devised,  upon 
Avhich  rent  has  been  reserved,  or  to  whom  any  such  rent  is 
transferred,  is  entitled  to  the  same  remedies  for  recovery  of 
rent,  for  nonperformance  of  any  of  the  terms  of  the  lease,  or 
for  any  waste  or  cause  of  forfeiture,  as  his  grantor  or  devisor 
might  have  had. 

Grants  of  rent  are  not  binding  upon  tenant  until  he  has  notice 
thereof:  Post,  §  1111. 

Hiring  of  real  property  generally:  See  post,  §  1941. 

Legislation  §  821.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  260. 

§  822.  Assignee  of  lessee,  remedies  of  lessor  against.  What- 
ever remedies  the  lessor  of  any  real  property  has  against  his 
immediate  lessee  for  the  breach  of  any  agreement  in  the  lease, 
or  for  recovery  of  the  possession,  he  has  against  the  assignees 
of  the  lessee,  for  any  cause  of  action  accruing  while  they  are 
such  assignees,  except  where  the  assignment  is  made  by  way 
of  security  for  a  loan,  and  is  not  accompanied  by  possession 
of  the  premises.  [Amendment  approved  1905;  Stats.  1905, 
p.  599.] 

Assignment  or  sublease,  effect  on  tenancy:  See  Code  Civ.  Proc,  §  1161. 
Legislation!  822.     1.  Enacted  March  21,  1872,  and  then  read:  "What- 
ever remedies  the  lessor  of  any  real  property  has  against  his  imme- 
diate lessee  for  the  breach  of  any  agreement  in  the  lease,  or  for  re- 
coverv  of  the  possession,  he  has  against  the  assigns  of  the  lessee." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  219,  to  read:  "Whatever 
remedies  the  lessor  of  any  real  property  [has]  against  his  immediate 
lessee  for  the  breach  of  any  agreement  in  the  lease,  or  for  recovery 
of  the  possession,  he  has  against  the  assignees  of  the  lessee,  for  any 
cause  of  action  accruing  while  they  are  such  assignees,  except  where 
the  assignment  is  made  by  way  of  security  for  a  loan,  and  is  not 
accompanied  by  possession  of  the  premises." 

3.  Amendment  by  Stats.  1901,  p.  393;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  599. 

§  823.  Rights  of  lessees  and  their  assignees,  etc.  Whatever 
remedies  the  lessee  of  any  real  pi-operty  may  have  against  his 


§  827  CIVIL  CODE.  378 

immediate  lessor,  for  the  breach  of  any  agreement  in  the  lease, 
he  may  have  against  the  assigns  of  the  lessor,  and  the  assigns 
of  the  lessee  may  have  against  the  lessor  and  his  assigns,  ex- 
cept upon  covenants  against  encumbrances  or  relating  to  the 
title  or  possession  of  the  premises. 

Legislation  §  823.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  261. 

§  824.  Remedy  on  leases  for  life.  Rent  due  upon  a  lease 
for  life  may  be  recovered  in  the  same  manner  as  upon  a  lease 
for  years. 

Legislation  §  824.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  263. 

§  825.  Rent  dependent  on  life.  Rent  dependent  on  the  life 
of  a  person  may  be  recovered  after  as  Avell  as  before  his  death. 

Legislation  §  825.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  264. 

§  826.  Remedy  of  reversioners,  etc.  A  person  having  an 
estate  in  fee,  in  remainder  or  reversion,  may  maintain  an  action 
for  any  injury  done  to  the  inheritance,  notwithstanding  an 
intervening  estate  for  life  or  years,  and  although,  after  its 
commission,  his  estate  is  transferred,  and  he  has  no  interest 
in  the  property  at  the  commencement  of  the  action. 

Waste  by  tenant  terminates  lease:  See  Code  Civ.  Proc,  §  1161, 
subd.  4. 

Legislation  §  826.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  265. 

§  827.     Terms  of  lease  may  be  changed  by  notice.     In  all 

leases  of  lands  or  tenements,  or  of  any  interest  therein,  from 
month  to  month,  the  landlord  may,  upon  giving  notice  in  writ- 
ing at  least  thirty  days  before  the  expiration  of  the  month, 
change  the  terms  of  the  lease  to  take  effect  at  the  expiration 
of  the  month.  The  notice,  when  served  upon  the  tenant,  shall 
of  itself  operate  and  be  effectual  to  create  and  establish,  as  a 
part  of  the  lease,  the  terms,  rent,  and  conditions  specified  in 
the  notice,  if  the  tenant  shall  continue  to  hold  the  premises 
after  the  expiration  of  the  month.  [Amendment  approved 
1907;  Stats.  1907,  p.  58.] 

Termination  of  tenancy  at  will:  See  ante,  §  789. 

Legislation  §  827.     1.  Added  by  Code  Amdts.  1873-74,  p.  220. 

2.  Amended  by  Stats.  1907,  p.  58,  in  first  sentence,  substituting 
•'thirty  days"  for  "fifteen  days." 


379  BOtJNDAHIES.  §  832 


BOtJNDAHIES. 

AETICLE  II. 

Boundaries. 

829. 

Eights  of  owner. 

830. 

Boundaries  by  water. 

831. 

Boundaries  by  ways. 

832. 

Lateral  and  subjacent  support. 

833. 

Trees  wliose  trunks  are  wholly  on  land  of  one, 

834. 

Line  trees. 

§  829.  Rights  of  owner.  The  owner  of  land  in  fee  has  the 
right  to  the  surface  and  to  everything  permanently  situated 
beneath  or  above  it. 

Legislation  §  829.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  266. 

§  830.  Boundaries  by  water.  Except  where  the  grant  under 
which  the  land  is  held  indicates  a  different  intent,  the  owner 
of  the  upland,  when  it  borders  on  tide-water,  takes  to  ordinary 
high-water  mark ;  when  it  borders  upon  a  navigable  lake  or 
stream,  where  there  is  no  tide,  the  owner  takes  to  the  edge  of 
the  lake  or  stream,  at  low- water  mark ;  Avhen  it  borders  upon 
any  other  water,  the  owner  takes  to  the  middle  of  the  lake  or 
stream.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  220.] 

Navigable  waters  boundaries.  Navigable  waters  enumerated:  See 
Pol.  Code,  §§  2348,  2349,  2351. 

Legislation  §  830.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  267),  and  then  read:  "When  land  borders  upon  tide- 
water, or  upon  water  which  constitutes  an  exterior  boundary  of  the 
state,  the  owner  of  the  upland  takes  to  high-water  mark;  when  it 
borders  upon  a  navigable  lake  where  there  is  no  tide,  the  owner  takes 
to  the  edge  of  the  lake  at  low-water  mark;  when  it  borders  upon  any 
other  water,  the  owner  takes  to  the  middle  of  the  lake  or  stream." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  220. 

3.  Amendment  by  Stats.  1901,  p.  393;  unconstitutional.  See  note, 
§  4,  ante. 

§  831.  Boundaries  by  ways.  An  owner  of  land  bounded  by 
a  road  or  street  is  presumed  to  own  to  the  center  of  the  way, 
but  the  contrary  may  be  shown. 

Highway  as  boundary:  See  post,  §  1112. 

Legislation  §  831.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  268;  Kittle  v.  Pfeiffer,  29  Cal.  484. 

§  832.  Lateral  and  subjacent  support.  Each  coterminous 
owner  is  entitled  to  the  lateral  and  subjacent  support  which 
his  land  receives  from  the  adjoining  land,  subject  to  the  right 
of  the  owner  of  the  adjoining  land  to  make  proper  and  usual 
excavations  on  the  same  for  purposes  of  construction,  on  using 
ordinary  care  and  skill,  and  taking  reasonable  precautions  to 
sustain  the  land  of  the  other,  and  giving  previous  reasonable 


§  841  CIVIL  CODE.  380 

notice  to  the  other  of  his  intention  to  make  such  excavations. 

[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  221.  J 
Legislation  §  832.     1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
X.   Y.   Civ.   Code,  §  269),  and  then  read:   "Each  coterminous  owner  is 
entitled  to  the  lateral  and  subjacent  support  which  his  land  by  nature 
receives  from  the  land  of  the  other." 

2.  Amended-  by  Code  Amdts.  1873-74,  p.  221. 

3.  Amendment  by   Stats.   1901,  p.   393;   unconstitutional.     See   note, 
§  4,  ante. 

§  833.  Trees  w^hose  trunks  are  wholly  on  land  of  one.  Trees 
whose  trunks  stand  wholly  upon  the  land  of  one  owner  belong 
exclusively  to  him,  although  their  roots  grow  into  the  land  of 
another. 

Legislation  §  833.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  270. 

§  834.  Line  trees.  Trees  whose  trunks  stand  partly  on  the 
land  of  two  or  more  coterminous  owners,  belong  to  them  in 
common. 

Legislation  §  834.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  271. 

CHAPTER  II. 

Obligations  of  Owners. 

§  840.  Duties  of  tenant  for  life. 

§  841.  Monuments  and  fences. 

§  842.  Owners  of  ditch,  flume,  etc.;  liability  of  one  to  the  other. 

§  843.  Neglect  to  pay  proportion  of  expense.     Liability. 

§  840.  Duties  of  tenant  for  life.  The  owner  of  a  life  estate 
must  keep  the  buildings  and  fences  in  repair  from  ordinary 
waste,  and  must  pay  the  taxes  and  other  annual  charges,  and 
a  just  proportion  of  extraordinary  assessments  benefiting  the 
whole  inheritance. 

Rights  of  tenants  for  life:  See  ante.  §  SIS. 

Decree  declaring  life  estate  terminated:  Code  Civ.  Proc,  §  1723. 
Legislation  §  840.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  272. 

§  841.  Monuments  and  fences.  Coterminous  owners  are  mu- 
tually bound  equally  to  maintain: 

1.  The  boundaries  and  monuments  between  them ; 

2.  The  fences  between  them,  unless  one  of  them  chooses  to 
let  his  land  lie  without  fencing ;  in  which  case,  if  he  afterwards 
incloses  it,  he  must  refund  to  the  other  a  just  proportion  of 
the  value,  at  that  time,  of  any  division  fence  made  by  the 
latter. 

Legislation  §  841.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  273. 


381  OBLIGATIONS  OF   OWNERS.  §  843 

§  842.  Owners  of  ditch,  flume,  etc. ;  liability  of  one  to  the 
other.  When  two  or  more  persons  are  associated  by  agree- 
ment in  the  use  of  a  ditch,  flume,  pipe  line  or  other  conduit 
for  the  conveyance  of  water,  or  Avho  are  using  such  ditch, 
flume,  pipe  line  or  other  conduit,  or  any  part  thereof,  for  the 
irrigation  of  land  or  for  any  other  lawful  purpose,  to  the  con- 
struction of  which  they  or  their  grantors  have  contributed,  he 
is  liable  to  the  others  for  the  reasonable  expenses  of  maintain- 
ing and  repairing  the  same,  and  of  distributing  such  water  in 
proportion  to  the  share  to  which  he  is  entitled  in  the  use  of  the 
water. 

Legislation  §  842.  1.  Addition  by  Stats.  1901,  p.  393;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  600;  the  code  commissioner  saying  in 
his  note  to  §§  842,  843,  "The  statute  of  1889,  page  202,  relating  to  the 
protection  of  owners  of  ditches  and  flumes,  is  codified  in  the  above 
sections.  §  3  of  the  statute  is  not  codified  for  the  reason  that  any 
matter  in  it  which  should  be  retained  is  fully  covered  by  the  general 
rules  of  law." 

§  843.     Neglect  to  pay  proportion  of  expense.     Liability.     If 

any  one  of  them  neglects,  after  demand  in  writing,  to  pay  his 
proportion  of  such  expenses,  he  is  liable  therefor  in  an  action 
for  contribution,  and  in  any  judgment  obtained  against  him 
interest  from  the  time  of  such  demand  must  be  included.  The 
action  authorized  by  this  section  must  be  brought  by  any  or 
all  of  the  parties  who  have  contributed  more  than  his  or  their 
just  proportion  of  such  expenses,  and  may  be  joint  or  several, 
and  therein  plaintiff  may  recover  as  costs,  reasonable  counsel 
fees,  to  be  fixed  by  the  court. 

Legislation  §  843.  1.  Addition  by  Stats.  1901,  p.  393;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  600.  See  ante,  Legislation  §  842,  for 
code  commissioner's  note. 


§  850  CIVIL  CODE.  382 

TITLE    IV. 
Uses  and  Trusts. 

§  847.  What  uses  and  trusts  may  exist. 

§  848.  Eight  to  possession  of  land  creates  legal  ownership.     [Kepealed.] 

§  849.  Certain  trusts  unaffected.     [Repealed.] 

§  850,  Trustees  of  estate  for  use  of  another  take  no  interest.     [Repealed.] 

§  851.  Preceding  sections  qualified.      [Repealed.] 

§  852.  Trust  must  be  in  writing. 

§  853.  Transfer  to  one  for  money  paid  by  another. 

§  854.  Rights  of  creditors.     [Repealed.]    . 

§  855.  Section  eight  hundred  and  fifty-three  qualified.     [Repealed.] 

§  856.  Purchasers  protected. 

§  857.  Purposes  of  express  trusts. 

§  858.  Vesting  of  mortgage  powers. 

§  859.  Profits  of  land  liable  to  creditors, in  certain  cases. 

§  860.  Exercise  of  vested  powers. 

§  861.  Creation  of  certain  powers  not  prohibited.     [Repealed.] 

§  862.  And  land,  etc.,  to  descend  to  persons  entitled.     [Repealed.] 

§  863.  Trustees  of  express  trusts  to  have  whole  estate. 

§  864.  Author  of  trust  may  devise,  etc. 

§  865.  Title  of  grantee  or  devisee  of  trust  property. 

§  866.  Interests  remaining  in  grantor  of  express  trust. 

§  867.  Restraining  disposition  of  trusts. 

§  868.  Powers  over  trust  of  party  interested.     [Repealed.] 

§  869.  Effect  of  omitting  trust  in  conveyance. 

§  870.  Certain  sales,  etc.,  by  trustees,  void. 

§  871.  When  estate  of  trustee  to  cease. 

§  847.  What  uses  and  trusts  may  exist.  Uses  and  trusts  in 
relation  to  real  property  are  those  only  which  are  specified  in 
this  title. 

Rules  as  to  suspending  power  of  alienation:  Ante,  §§  715,  716,  771. 
Trusts  for  accumulation  of  income:  Ante,  §§  722-726. 
Trusts  in  general:  Post,  §§  2215-2224. 
Trusts  for  third  persons:  Post,  §§  2250-2289. 

Legislation  §  847.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  274. 

§  848.     Right  to  possession  of  land  creates  legal  ownership. 

[Repealed  1874;  Code  Amdts.  1873-74,  p.  221.] 

Legislation  §  848.     1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  276. 

2.  Repealed  by  Code  Amdts.  1873-74,  p.  221. 

§849.  Certain  trusts  unaffected.  [Repealed  1874;  Code 
Amdts.  1873-74,  p.  221.] 

Legislation  §  849.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §277. 

2.  Repealed  by  Code  Amdts.  1873-74,  p.  221. 

§  850.  Trustees  of  estate  for  use  of  another  take  no  inter- 
est.     [Repealed  1874;  Code  Amdts.  1873-74,  p.  221.] 


383  USES   AND  TRUSTS.  §  856 

Legislation  §  850.  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  278. 

2.  Repealed  by  Code  Amdts.  1873-74,  p.  221. 

§  851.  Preceding  sections  qualified.  [Repealed  1874 ;  Code 
Amdts.  1873-74,  p.  221.] 

Legislation  §  851,  1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  279. 

2.  Repealed  by  Code  Amdts.  1873-74,  p.  221. 

§  852.  Trust  must  be  in  writing.  No  trust  in  relation  to 
real  property  is  valid  unless  created  or  declared : 

1.  By  a  Avritten  instrument,  subscribed  by  the  trustee,  or  by 
his  agent  thereto  authorized  by  writing; 

2.  By  the  instrument  under  which  the  trustee  claims  the 
estate  affected;  or, 

3.  By  operation  of  law. 

Legislation  §  852.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  280;  Cal.  Code  Civ.  Proc,  §  1971. 

§  853.     Transfer  to  one  for  money  paid  by  another.     When  a 

transfer  of  real  property  is  made  to  one  person,  and  the  con- 
sideration therefor  is  paid  by  or  for  another,  a  trust  is  pre- 
sumed to  result  in  favor  of  the  person  by  or  for  whom  such 
payment  is  made.  [Amendment  approved  1874 ;  Code  Amdts. 
1873-74,  p.  221.] 

Legislation  §  853.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  281),  and  then  read:  "Where  a  transfer  of  real  prop- 
erty is  made  to  one  person,  and  the  consideration  therefor  is  paid  by 
or  for  another,  no  use  or  trust  results  in  favor  of  the  person  by  or 
for  whom  such  payment  is  made;  but  the  title  vests  in  the  grantee, 
subject  only  to  the  provisions  of  the  next  two  sections." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  221. 

§854.  Rights  of  creditors.  [Repealed  1874;  Code  Amdts. 
1873-74,  p.  221.] 

Legislation  §  854.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  221. 

§  855.     Section  eight  hundred  and  fifty-three  qualified.    [Re- 
pealed 1874;  Code  Amdts.  1873-74,  p.  221.] 
Legislation  §  855.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  221. 

§  856.  Purchasers  protected.  No  implied  or  resulting  trust 
can  prejudice  the  rights  of  a  purchaser  or  encumbrancer  of 
real  property  for  value  and  without  notice  of  the  trust. 

Bona  fide  purchasers.     Rights  of:  See  post,  §  2243.     Generally:  See 

post,  §  1214. 

Legislation  §  856.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  284. 


§  858  CIVIL  CODE.  384 

§  857.     Purposes  of  express  trusts.     Express  trusts  may  be 

created  for  any  of  the  following  purposes : 

1.  To  sell  and  convey  real  property  and  to  hold  or  reinvest 
or  apply  or  dispose  of  the  proceeds  in  accordance  with  the  in- 
strument creating  the  trust. 

2.  To  mortgage  or  lease  real  property  for  the  benefit  of 
annuitants,  or  devisees  or  legatees,  or  other  beneficiaries,  or  for 
the  purpose  of  satisfying  any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  real  property,  and  pay 
them  to,  or  apply  them  to  the  use  of  any  person,  Avhether 
ascertained  at  the  time  of  the  creation  of  the  trust  or  not,  for 
himself  or  for  his  family  during  the  life  o'f  such  person,  or  for 
any  shorter  term,  subject  to  the  rules  of  title  2  of  division  2 
of  part  1  of  this  code* 

4.  To  receive  the  rents  and  profits  of  real  property  and  to 
accumulate  the  same  for  the  purposes  and  within  the  limits 
prescribed  by  the  same  title ;  or 

5.  To  convey,  partition,  divide,  distribute  or  allot  real  prop- 
erty in  accordance  with  the  instrument  creating  the  trust, 
subject  to  the  limitations  of  the  same  title.  [Amendment 
approved  1913;  Stats.  1913,  p.  438.] 

Surplus  of  rents  and  profits:  See  post,  §  859. 

Estate  of  trustee:  See  post,  §  863. 

Legislation  §  857.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §285),  and  differed  from  the  amendment  of  1873-74 
^,post),  in  that  (1)  subd.  1  read:  "To  sell  real  property  for  the  benefit 
of  creditors";  (2)  subd.  2  had  the  word  "sell"  before  "mortgage." 

2.  Amended  Ijy  Code  Amdts.  1873-74,  p.  221,  to  read:  "Express  trusts 
may  be  created  for  any  of  the  following  purposes:  One.  To  sell  real 
property,  and  apply  or  dispose  of  the  proceeds  in  accordance  with  the 
instrument  creating  the  trust.  Two.  To  mortgage  or  lease  real  prop- 
erty for  the  benefit  of  annuitants  or  other  legatees,  or  for  the  purpose 
of  satisfying  anj'  charge  thereon.  Three.  To  receive  the  rents  and 
profits  of  real  property,  and  pay  them  to  or  apply  them  to  the  use 
of  any  person,  whether  ascertained  at  the  time  of  the  creation  of  the 
trust  or  not,  for  himself  or  for  his  family,  during  the  life  of  such 
person,  or  for  any  shorter  term,  subject  to  the  rules  of  title  two  of 
this  part;  or,  Four.  To  receive  the  rents  and  profits  of  real  property, 
and  to  accumulate  the  same  for  the  purposes  and  within  the  limits 
prescribed  by  the  same  title." 

3.  Amendment  by  Stats.  1901,  p.  394;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1913,  p.  438. 

§  858.  Vesting  of  mortgage  pov^^ers.  Where  a  power  to  sell 
real  property  is  given  to  a  mortgagee,  or  other  encumbrancer, 
in  an  instrument  intended  to  secure  the  payment  of  money, 
the  power  is  to  be  deemed  a  part  of  the  security,  and  vests  in 
any  person  Avho,  by  assignment,  becomes  entitled  to  the  money 
so  secured  to  be  paid,  and  may  be  executed  by  him  whenever 
the  assignment  is  duly  acknowledged  and  recorded. 


385  USES  AND  TRUSTS.  §  862 

Legislation  §  858.  1.  Enacted  March  21,  1872,  as  §  895  (based  on 
Field's  Draft,  N.  Y.  Civ.  Code,  §  317),  and  then  read  same  as  the  amend- 
ment of  1873-74  down  to  the  words  "part  of  the  security,"  the  section 
thereafter  reading,  "and  vests  in  and  may  be  executed  by  any  person, 
who,  by  assignment  or  otherwise,  becomes  entitled  to  the  money  so  se- 
cured to  be  paid." 

2.  Eepealed  by  Code  Amdts.  1873-74,  p.  223,  in  repealing  Title  V. 
See  post,  Legislation  Title  V. 

3.  Re-enacted  and  amended  by  Code  Amdts.  1873-74,  p.  222,  the  sec- 
tion number  changed  from  895  to  858,  and  the  latter  part  of  the  section 
recast.  The  original  code  §  858  provided  that  certain  devises  in  trust 
should  be  deemed  powers,  and  was  repealed  in  1873-74,  and  the  present 
section  substituted  therefor,  as  noted  supra. 

§  859.     Profits  of  land  liable  to  creditors  in  certain  cases. 

Where  a  trust  is  created  to  receive  the  rents  and  profits  of 
real  property,  and  no  valid  direction  for  accumulation  is 
given,  the  surplus  of  such  rents  and  profits,  beyond  the  sum 
that  may  be  necessary  for  the  education  and  support  of  the 
person  for  whose  benefit  the  trust  is  created,  is  liable  to  the 
claims  of  the  creditors  of  such  person,  in  the  same  manner  as 
personal  property  which  cannot  be  reached  by  execution. 

Legislation  §  859.     1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  287. 

2.  Amendment   by   Stats.   1901,  p.  394;   unconstitutional.     See   note, 

§  4,  ante. 

§  860.  Exercise  of  vested  powers.  Where  a  power  is  vested 
in  several  persons,  all  must  unite  in  its  execution ;  but,  in  case 
any  one  or  more  of  them  is  dead,  tlie  poAver  may  be  executed 
by  the  survivor  or  survivors,  unless  otherwise  prescribed  by 
the  terms  of  the  power. 

Death  of  co-trustee.     Trust  survives  to  the  others:  Post,  §  2288. 
Exercise  of  powers  by  oo-trustees:  See  post,  §  2268. 
Legislation  §  860.     1.  Ennc-ted    March   21,   1872,    as    §900;   based    on 
Field's  Draft,  N.  Y.  Civ.  Code,  §  323. 

2.  Repealed  by  Code  Amdts.  1873-74,  p.  223,  in  repealing  Title  V. 
See  post.  Legislation  Title  V. 

3.  Re-enacted  by  Code  Amdts.  1873-74,  p.  222,  the  only  change  being 
to  change  the  section  number  from  900  to  860.  The  original  code  §  860 
provided  that  certain  express  trusts  should  be  valid  as  powers  in  trust, 
and  was  repealed  in  1873-74,  and  the  present'  section  substituted  there- 
for, as  noted  supra. 

§  861.     Creation   of  certain   powers   not   prohibited.     [Re- 
pealed 1874;  Code  Amdts.  1873-74,  p.  222.] 
Legislation  §  861.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  222. 

§  862.     And  land,  etc.,  to  descend  to  persons  entitled.     [Re- 
pealed 1874;  Code  Amdts.  1873-74,  p.  223.] 
Legislation  §  862.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  223. 
Civ.  Code — 25 


§  868  CIVIL  CODE.  386 

§  863.  Trustees  of  express  trusts  to  have  whole  estate.  Ex- 
cept as  hereinafter  otherwise  provided,  every  express  trust  in 
real  property,  valid  as  such  in  its  creation,  vests  the  whole 
estate  in  the  trustees,  subject  only  to  the  execution  of  the  trust. 
The  beneficiaries  take  no  estate  or  interest  in  the  property,  but 
may  enforce  the  performance  of  the  trust. 

Enforcing  performance  of  trust:  See  post,  "Obligation  of  Trustees," 
§§2228-2239,  and  §§2258-2263.. 

Legislation  §  863.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  291. 

§  864.  Author  of  trust  may  devise,  etc.  Notwithstanding 
anything  contained  in  the  last  section,  the  author  of  a  trust 
may,  in  its  creation,  prescribe  to  whom  the  real  property  to 
which  the  trust  relates  shall  belong,  in  the  event  of  the  failure 
or  termination  of  the  trust,  and  may  transfer  or  devise  such 
property,  subject  to  the  execution  of  the  trust. 

Legislation  §  864.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  292. 

§  865.     Title  of  grantee  or  devisee  of  trust  property.     The 

grantee  or  devisee  of  real  property  subject  to  a  trust  acquires 
a  legal  estate  in  the  property,  as  against  all  persons  except  the 
trustees  and  those  lawfully  claiming  under  them. 

Legislation  §  865.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  293. 

§  866.     Interests   remaining   in   grantor   of   express   trust. 

Where  an  express  trust  is  created  in  relation  to  real  property, 
every  estate  not  embraced  in  the  trust,  and  not  otherAvise  dis-. 
posed  of,  is  left  in  the  author  of  the  trust  or  his  successors. 

Legislation  §  866.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  294. 

§  867.  Restraining  disposition  of  trusts.  The  beneficiary  of 
a  trust  for  the  receipt  of  the  rents  and  profits  of  real  property, 
or  for  the  payment  of  an  annuity  out  of  such  rents  and  profits, 
may  be  restrained  from  disposing  of  his  interest  in  such  trust, 
during  his  life  or  for  a  term  of  years,  by  the  instrument  creat- 
ing the  trust.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  223.] 

Accumulations:    See  Ante,  §§  722  et  seq.,  859. 

Legislation  §  867.     1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  295),  and  then  read:  "The  beneficiary  of  a  trust  for 
the  receipt  of  the  rents  and  profits  of  real  property  cannot  transfer 
or  in  any  manner  dispose  of  his  interest  in  such  trust." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  223. 

§  868.  Powers  over  trust  of  party  interested.  [Repealed 
1874;  Code  Amdts.  1873-74,  p.  223.] 

Legislation  §  868.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  223. 


387  POWERS.  §  871 

§  869.  Effect  of  omitting  trust  in  conveyance.  Where  an 
express  trust  is  created  in  relation  to  real  property,  but  is 
not  contained  or  declared  in  the  grant  to  the  trustee,  or  in 
an  instrument  signed  by  him,  and  recorded  in  the  same  office 
Avith  the  grant  to  the  trustee,  such  grant  must  be  deemed 
absolute  in  favor  of  purchasers  from  such  trustee  without 
notice,  and  for  a  valjjable  consideration.  [Amendment  ap- 
proved 1874;  Code  Am'dts.  1873-74,  p.  223.] 

Bona  fide  purchaser  not  charged  with  implied  or  resulting  trusts: 

See  ante,  §  856. 

Legislation  §  869,  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  297),  and  then  read:  "Where  an  express  tnist  is 
created  in  relation  to  real  property,  but  is  not  contained  or  declared 
in  the  grant  to  the  trustee,  such  gra,nt  must  be  deemed  absolute  in 
favor  of  the  subsequent  creditors  of  the  trustees,  not  having  notice  of 
the  trust,  and  in  favor  of  purchasers  from  such  trustees  without  notice, 
and  for  a  valuable  consideration." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  223. 

§  870,  Certain  sales,  etc.,  by  trustees,  void.  Where  a  trust 
in  relation  to  real  property  is  expressed  in  the  instrument 
creating  the  estate  every  transfer  or  other  act  of  the  trustees, 
in  contravention  of  the  trust,  is  absolutely  void. 

Legislation  §  870.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  298. 

§  871.  When  estate  of  trustee  to  cease.  When  the  purpose 
for  which  an  express  trust  was  created  ceases,  the  estate  of  the 
trustee  also  ceases. 

Extinguishment  of  trust:  See  post,  §  2279. 

Legislation  §  871,  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  299. 


TITLE    V. 
Powers, 

[This  chapter,  containing  §§  878-940,  was  repealed  in  1874.  Stats. 
1873-74,  p.  223.] 

Legislation  Title  V.  1.  Enacted  March  21,  1872,  and  then  contained 
§§  878-940. 

2.  Kepealed  by  Code  Amdts.  1873-74,  p.  223,  the  repealing  clause 
reading,  "Title  Five,  of  Part  Two,  of  Division  Two,  on  Powers,  of 
the  Civil  Code,  embracing  sections  of  said  code  from  section  eight  hun- 
dred and  seventy-eight  to  nine  hundred  and  forty-six,  inclusive,  is  re- 
pealed." Two  sections  of  this  repealed  title  (§§  895,  900)  were  re- 
enacted  at  the  same  session  of  the  legislature,  §  895  as  §  858,  and  §  900 
as  §  860.  See  ante,  Legislation  §  858,  and  Legislation  §  860.  See  post. 
Legislation  §  946,  for  re-enactment  of  that  section,  which,  through  a 
clerical  error,  was  repealed  in  repealing  Title  V.  See  the  repealing 
clause,  quoted  supra,  which  includes  this  section,  although  it  is  in 
another  title  and  part. 


§  953  CIVIL  CODE.  388 

PAET  III. 
PERSONAL  OR  MOVABLE  PROPERTY. 

Title  I.     Personal  Property  in  General.     §§  946,  947. 

II.     Particular  Kinds  of  Personal  Property.     §§953- 
995. 

TITLE  I. 

Personal  Property  in  General. 

§  946.     By  what  law  governed. 

§  947.     Future    interests    in    perishable    property,    how    protected.     [Ke- 
pealed.] 

§  946.  By  what  law  governed.  If  there  is  no  law  to  the  con- 
trary, in  the  place  where  personal  property  is  situated,  it  is 
deemed  to  follow  the  person  of  its  owner,  and  is  governed  by 
the  law  of  his  domicile. 

Legislation  §  946.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  364. 

2.  Eepealed  by  Code  Amdts.  1873-74,  p.  22Z.  in  repealing  Title  V, 
Part  II,  through  a  clerical  error.  Quaere  as  to  the  constitutionality 
of  the  repeal.     See  ante.  Legislation  Title  V,  Part  II. 

3.  Re-enacted  by  Code  Amdts.  1875-76,  p.  78,  the  only  diflference 
being  the  insertion  of  a  comma  after  "contrarj-,"  evidently  a  typo- 
graphical or  clerical  error,  the  restrictive  meaning  being  lost. 

§  947.     Future  interests  in  perishable  property,  how  pro- 
tected.     [Repealed  1874;  Code  Amdts.  1873-74,  p.  223.] 
Legislation  §  947.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  223. 

TITLE  11. 
Particular  Kinds  of  Personal  Property. 

Chapter  I.  Things  in  Action.     §§  953-955. 

II.  Shipping.     Articles  I,  II.     §  960-973. 

III.  Products  of  the  Mind.     §§  980-985. 

IV.  Other  Kinds  of  Personal  Property.     §§  991-995. 

CHAPTER  I. 

Things  in  Action.  • 

§  953.     Things  in  action  defined. 

§  954.     Transfer  and  survivorship. 

§  955.     Assignment  of  wages.     Power  of  attorney  revocable. 

§  953.  Things  in  action  defined.  A  thing  in  action  is  a 
right  to  recover  money  or  other  personal  property  by  a  judi- 


\ 


389  THINGS  IN  ACTION.  §  955 

cial  proceeding.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  223.] 

Legislation  §  953.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  366),  and  then  read:  "A  thing  in  action  is  a  right  to 
recover  something  by  a  judicial  proceeding." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  223. 

§  954.  Transfer  and  survivorship.  A  thing  in  action,  aris- 
ing out  of  tlie  violation  of  a  right  of  property,  or  out  of  an 
obligation,  may  be  transferred  by  the  owner.  Upon  the  death 
of  the  owner  it  passes  to  his  personal  representatives,  except 
where,  in  the  cases  provided  in  the  Code  of  Civil  Procedure, 
it  passes  to  his  devisees  or  successor  in  office. 

Transfer  of  obligations:  Post,  §  1458. 

Suing  on  choses  in  action:  See  Code  Civ.  Proc,  §§  367-369,  1582,  1583. 
Legislation  §  954.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  367. 

§  955.     Assignment  of  wages.     Power  of  attorney  revocable. 

No  assignment  of,  or  order  for  wages  or  salary  shall  be  valid 
unless  made  in  writing  by  the  person  by  whom  the  said  wages 
or  salary  are  earned  and  no  assignment  of,  or  order  for,  wages 
or  salary  made  by  a  married  person  shall  be  valid  unless  the 
written  consent  of  the  husband  or  wife  of  the  person  making 
such  assignment  or  order  is  attached  to  such  assignment  or 
order;  and  no  assignment  or  order  for  wages  or  salary  of  a 
minor  shall  be  valid  unless  the  written  consent  of  a  parent 
or  the  guardian  of  such  minor  is  attached  to  such  order  or 
assignment.  No  assignment  of,  or  order  for,  wages  or  salary 
shall  be  valid  unless  at  the  time  of  the  making  thereof,  such 
wages  or  salary  have  been  earned,  except  for  the  necessities 
of  life  and  then  only  to  the  person  or  persons  furnishing  such 
necessities  of  life  directly  and  then  only  for  the  amount 
needed  to  furnish  such  necessities.  Any  power  of  attorney 
to  assign  or  collect  wages  or  salary  shall  be  revocable  at  any 
time  by  the  maker  thereof. 

Legislation  §  955.     Added  by  Stats.  1913,  p.  537. 


§  964  CIVIL  CODE.  390 

CHAPTER  II. 

Shipping. 

Article  I.     General  Provisions.     §§  960-966. 
II.     Eules  of  Navigation.     §§  970-973. 

AETICLE  I. 

General  Provisions. 

§  960.  Definition  of  a  ship. 

§  961.  Appurtenances  and  equipments. 

§  962.  Foreign  and  domestic  navigation. 

§  963.  Foreign    and    domestic    ships    distinguished. 

§  964.  Several  owners. 

§  965.  Owner  for  voyage. 

§  966.  Eegistry,  etc. 

§  960.  Definition  of  a  ship.  The  term  "ship  or  shipping," 
when  used  in  this  code,  includes  steamboats,  sailing  vessels, 
canal-boats,  barges,  and  every  structure  adapted  to  be  navi- 
gated from  place  to  place  for  the  transportation  of  merchan- 
dise or  persons.  [Amendment  approved  1874 ;  Code  Amdts. 
1873-74,  p.  224.] 

Legislation  §  960.  1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  368),  and  then  read:  "A  ship  is  any  structure  fitted 
for  navigation.     Every  kind  of  ship  is  included  in  the  term  'shipping.'  " 

2.  Amended  by  Code  Amdts.  1873-74,  p.  224. 

§  961.  Appurtenances  and  equipments.  All  things,  belong- 
ing to  the  owners,  which  are  on  board  a  ship,  and  are  con- 
nected with  its  proper  use,  for  the  objects  of  the  voyage  and 
adventure  in  which  the  ship  is  engaged,  are  deemed  its  appur- 
tenances. 

Legislation  §  961.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  369. 

§  962.  Foreign  and  domestic  navigation.  Ships  are  engaged 
either  in  foreign  or  domestic  navigation,  or  in  the  fisheries. 
Ships  are  engaged  in  foreign  navigation  when  passing  to  or 
from  a  foreign  country ;  and  in  domestic  navigation,  when 
passing  from  place  to  place  within  the  United  States. 

Legislation  §  962.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  370. 

§  963.  Foreign  and  domestic  ships  distinguished.  A  ship 
in  a  port  of  the  state  to  which  it  belongs  is  called  a  domestic 
ship ;  in  another  port  it  is  called  a  foreign  ship. 

Legislation  §  963.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  371. 

§  964.  Several  ov^ners.  If  a  ship  belongs  to  several  per- 
sons, not  partners,  and  they  differ  as  to  its  use  or  repair,  the 


391  RULES  OF  NAVIGATION.  §  970 

controversy  may  be  determined  by  any  court  of  competent 
jurisdiction. 

Legislation  §  964.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  372. 

§  965.     Owner  for  voyage.     If  the  owner  of  a  ship  commits 
its  possession  and  navigation  to  another,  that  other,  and  not 
the  owner,  is  responsible  for  its  repairs  and  supplies. 
Charter-party,  defined:  See  post,  §  1959. 

Legislation  §  965.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  373. 

§  966.  Registry,  etc.  The  registry,  enrollment,  and  license 
of  ships  are  regulated  by  acts  of  Congress. 

Legislation  §  966.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  374. 

AETICLE  II. 

Rules  of  Navigation. 

§  970.  Eules  of  navigation. 

§  971.  Collision  from  breach  of  rules. 

§  972.  Breaches  of  such  rules  to  imply  willful  default. 

§  973.  Loss,   how   apportioned. 

§  970.  Rules  of  navigation.  In  the  ease  of  ships  meeting, 
the  following  rules  must  be  observed,  in  addition  to  those  pre- 
scribed by  that  part  of  the  Political  Code  which  relates  to 
navigation : 

1.  Whenever  any  ship,  whether  a  steamer  or  sailing  ship, 
proceeding  in  one  direction,  meets  another  ship,  whether  a 
steamer  or  sailing  ship,  proceeding  in  another  direction,  so 
that  if  both  ships  Avere  to  continue  their  respective  courses 
they  would  pass  so  near  as  to  involve  the  risk  of  a  collision, 
the  helms  of  both  ships  must  be  put  to  port  so  as  to  pass  on 
the  port  side  of  each  other ;  and  this  rule  applies  to  all  steam- 
ers and  all  sailing  ships,  whether  on  the  port  or  starboard 
tack,  and  whether  close-hauled  or  not,  except  where  the  cir- 
cumstances of  the  case  are  such  as  to  render  a  departure  from 
the  rule  necessary  in  order  to  avoid  immediate  danger,  and 
subject  also  to  a  due  regard  to  the  dangers  of  navigation,  and, 
as  regards  sailing  ships  on  the  starboard  tack  close-hauled,  to 
the  keeping  such  ships  under  command ; 

2.  In  the  case  of  sailing  vessels,  those  having  the  wind  fair 
must  give  way  to  those  on  a  wind.  "When  both  are  going 
by  the  wind,  the  vessel  on  the  starboard  tack  must  keep  her 
wind,  and  the  one  on  the  larboard  tack  bear  up  strongly, 
passing  each  other  on  the  larboard  hand.     When  both  vessels 

khave  the  wind  large  or  abeam,  and  meet,  they  must  pass  each 
other  in  the  same  way  on  the  larboard  hand,  to  effect  which 
1 


§  972  CIVIL  CODE.  392 

Uvo  last-mentioned  objects  the  helm  must  be  put  to  port. 
Steam-vessels  must  be  regarded  as  vessels  navigating  with  a 
fair  wind,  and  should  give  way  to  sailing  vessels  on  a  wind 
of  either  tack; 

3.  A  steamer  navigating  a  narrow  channel  must,  whenever 
it  is  safe  and  practicable  keep  to  that  side  of  the  fairway  or 
mid-channel  Avhich  lies  on  the  starboard  side  of  the  steamer ; 

4.  A  steamer  when  passing  another  steamer  in  such  channel, 
must  always  leave  the  other  upon  the  larboard  side; 

5.  When  steamers  must  inevitably  or  necessarily  cross  so 
near  that  by  continuing  their  respective  courses,  there  would 
be  a  risk  of  collision,  each  vessel  must  put  her  helm  to  port, 
so  as  always  to  pass  on  the  larboard  side  of  each  other ; 

6.  The  rules  of  this  section  do  not  apply  to  an}'  case  for 
which  a  different  rule  is  provided  by  the  regulations  for  the 
government  of  pilots  of  steamers  approaching  each  other 
within  the  sound  of  the  steam- whistle,  or  by  the  regulations 
concerning  lights  upon  steamers,  prescribed  by  or  under  au- 
thoritv  of  the  laws  of  the  United  States.  [Amendment  ap- 
proved 1905;  Stats.  1905,  p.  600.] 

For  rules  of  navigation,  etc.:  See  Pol.  Code,  §§  2360-2379. 

Legislation  §  970.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  375),  the  only  difference  from  the  present  section 
being  in  subd.  6,  which,  after  the  words  "approaching  each  other," 
read,  "within  sound  of  the  steam-whistle,  or  by  the  regulations  con- 
cerning lights  upon  steamers,  prescribed  under  authority  of  the  acts 
of  Congress  approved  August  thirtieth,  eighteen  hundred  and  fifty- 
two,  and  April  twenty-ninth,  eighteen  hundred  and  sixty-four." 

2.  Amendment  by  Stats.  1901,  p.  394;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  600. 

§  971.  Collision  from  breach  of  rules.  If  it  appears  that  a 
collision  was  occasioned  by  failure  to  observe  any  rule  of  the 
foregoing  section,  the  owner  of  the  ship  by  which  such  rule 
is  infringed  cannot  recover  compensation  for  damages  sus- 
tained by  the  ship  in  such  collision,  unless  it  appears  that  the 
circumstances  of  the  case  made  a  departure  from  the  rule 
necessary. 

Legislation  §  971.     Enacted  March  21.  1872;   based  on  Field's  Draft. 

X.  Y.  Civ.  Code,  §  376. 

§  972.  Breaches  of  such  rules  to  imply  willful  default.  Dam- 
age to  person  or  property  arising  from  the  failure  of  a  ship 
to  observe  any  rule  of  section  nine  hundred  and  seventy,  must 
be  deemed  to  have  been  occasioned  by  the  willful  default  of 
the  person  in  charge  of  the  deck  of  such  ship  at  the  time,  unless 
it  appears  that  the  circumstances  of  the  case  made  a  departure 
from  the    rule  necessary. 


393  PRODUCTS  OF  THE  MIND.  §  982 

Legislation  §  972.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  377. 

§  973.  Loss,  how  apportioned.  Losses  caused  by  collision 
are  to  be  borne  as  follows : 

1.  If  either  party  was  exclusively  in  fault  he  must  bear  his 
own  loss,  and  compensate  the  other  for  any  loss  he  has  sus- 
tained ; 

2.  If  neither  was  in  fault,  the  loss  must  be  borne  by  him  on 
whom  it  falls ; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally  divided, 
unless  it  appears  that  there  was  a  great  disparity  in  fault,  in 
Avhich  case  the  loss  must  be  equitably  apportioned ; 

4.  If  it  cannot  be  ascertained  Avhere  the  fault  lies,  the  loss 
must  be  equally  divided. 

Legislation  §  973.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  378. 

CHAPTER  III. 

Products  of  the  Mind, 

§  980.  How  far  the  subject  of  ownership. 

§  981.  Joint  authorship. 

§  982.  Transfer. 

§  983.  Effect  of  publication. 

§  984.  Subsequent  inventor,  author,  etc. 

§  985.  Private  writings. 

§  980.  How  far  the  subject  of  ownership.  The  author 
of  any  product  of  the  mind,  w^hether  it  is  an  invention,  or  a 
composition  in  letters  or  art,  or  a  design,  w4th  or  without  de- 
lineation, or  other  graphical  representation,  has  an  exclusive 
ownership  therein,  and  in  the  representation  or  expression 
thereof,  which  continues  so  long  as  the  product  and  the  repre- 
sentations or  expressions  thereof  made  by  him  remain  in  his 
possession. 

Trade-marks:  See  Pol.  Code,  §§  3196  et  seq.,  and  post,  §  991. 

Legislation  §  980.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  429. 

§  981.  Joint  authorship.  Unless  otherwise  agreed,  a  prod- 
uct of  the  mind  in  the  production  of  which  several  persons 
are  jointly  concerned,  is  owned  by  them  as  follows : 

1.  If  the  product  is  single,  in  equal  proportions ; 

2.  If  it  is  not  single,  in  proportion  to  the  contribution  of  each. 
Legislation  §  981.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  430. 

§  982.  Transfer.  The  owner  of  any  product  of  the  mind,  or 
of  any  representation  or  expression  thereof,  may  transfer  liis 
property  in  the  same, 


§  991  CIVIL  CODE.  394 

Legislation  §  982.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  431. 

§  983.  Effect  of  publication.  If  the  owner  of  a  product  of 
the  mind  intentionally  makes  it  public,  a  copy  or  reproduc- 
tion may  be  made  public  by  any  person,  without  responsibility 
to  the  owner,  so  far  as  the  law  of  this  state  is  concerned. 

Legislation  §  983.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  432.  The  code  commissioners  say:  "The  protection 
afforded  by  act  of  Congress  is  a  matter  of  Federal  legislation,  with 
which  the  state  cannot  interfere." 

§  984.  Subsequent  inventor,  author,  etc.  If  the  owner  of  a 
product  of  the  mind  does  not  make  it  public,  any  other  person 
subsequently  and  originally  producing  the  same  thing  has  the 
same  right  therein  as  the  prior  author,  which  is  exclusive  to 
the  same  extent  against  all  persons  except  the  prior  author, 
or  those  claiming  under  him. 

Legislation  §  984.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  433. 

§  985.  Private  writing's.  Letters  and  other  private  commu- 
nications in  Avriting  belong  to  the  person  to  whom  they  are 
addressed  and  delivered ;  but  they  cannot  be  published  against 
the  will  of  the  Avriter,  except  by  authority  of  law. 

Legislation  §  985.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  434. 

CHAPTER  IV. 

Other  Kinds  of  Personal  Property. 

§  991.  Trade-marks. 

§  992.  Good-will  of  business. 

§  993.  Good-will  and  name,  transfer  of. 

§  994.  Title  deeds. 

§  995.  "Tare"  on  baled  hops. 

§  991.  Trade-marks.  One  who  produces  or  deals  in  a  par- 
ticular thing,  or  conducts  a  particular  business,  may  appro- 
priate to  his  exclusive  use,  as  a  trade-mark,  any  form,  .symbol, 
or  name  which  has  not  been  so  appropriated  by  another,  to 
designate  the  origin  or  ownership  thereof;  but  he  cannot 
exclusively  appropriate  any  designation,  or  part  of  a  designa- 
tion, which  relates  only  to  the  name,  quality,  or  the  description 
of  the  thing  or  business,  or  the  place  M'here  the  thing  is  pro- 
duced, or  the  business  is  carried  on.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  224.] 

As  to  trade-marks,  see  Pol.  Code,  §§  3196-319S;  Pen.  Code,  §§  350-354. 

Property  in  trade-marks:   See  ante,  §  655. 

Legislation  §  991.  1.  Enacted  March  21, 1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  435. 


395  TRADE   MARKS.      GOOD-WILL.      TITLE.      DEEDS.      TARE.       §  995 

2.  Amended  by  Code  Amdts.  1873-74,  p.  224,  at  end  of  section,  add- 
ing (1)  "the"  before  "description,"  and  (2)  "or  the  place  where  the 
thing  is  produced,  or  the  business  is  carried  on." 

§  992.  Good-will  of  business.  The  good-will  of  a  business 
is  the  expectation  of  continued  public  patronage,  but  it  does 
not  include  a  right  to  use  the  name  of  any  person  from  whom 
it  was  acquired. 

Good-will:    See  ante,  §  655;   post,  §  1674. 

Legislation  §  992.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  436. 

§  993.  Good-will  and  name,  transfer  of.  The  good-will  of  a 
business  is  property,  transferable  like  any  other,  and  the  person 
transferring  it  may  transfer  Avith  it  the  right  of  using  the 
name  under  Avhich  the  business  is  conducted.  [Amendment 
approved  1905;  Stats.  1905,  p.  602.] 

Good-will.     Is  property:    See   ante,  §  655.     Sale  of:    See  post,  §  1674. 
Legislation  §  993.     1.  Enacted  March  21, 1872  (based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  437),  and  then  read:  "The  good-will  of  a  business  is 
property,  transferable  like  any  other." 

2.  Amendment  by  Stats.  1901,  p.  395;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  602;  the  code  commissioner  saying  of 
the  addition,  "The  purpose  of  the  amendment  is  to  authorize  the  trans- 
fer of  the  right  of  using  the  name  with  the  transfer  of  the  good-will  of 
the  business." 

§  994.  Title  deeds.  Instruments  essential  to  the  title  of 
real  property,  and  which  are  not  kept  in  a  public  office  as  a 
record,  pursuant  to  law,  belong  to  the  person  in  whom,  for 
the  time  being,  such  title  may  be  vested,  and  pass  with  the 
title. 

Legislation  §  994.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  438. 

§995.  "Tare"  on  baled  hops.  There  shall  be  allowed  on 
baled  hops  a  tare  at  the  rate  of  two  per  centum  of  the  weight 
of  the  bale  for  the  cloth  and  other  material  used  in  baling; 
that  is,  the  tare  shall  be  at  the  rate  of  two  pounds  per  hundred 
on  the  Aveight  of  the  bale. 

Legislation  §  995.     Added  by  Stats.  1907,  p.  845. 


1001  CIVIL  CODE.  396 


PAKT  IV. 

ACQUISITION  OF  PROPERTY. 

Title  I.     Modes    in    Which    Property    may    be    Acquired. 
§§  1000,  1001. 
II.     Occupancy.     §§  1006,  1007. 

III.  Accession.     §§1013-1033. 

IV.  Transfer.     §^039-1231. 

V.  Homesteads.     §§  1237-1269c. 

VI.  WmLS.     §§  1270-1377. 

VII.  Succession.     §§  1383-1409. 

VIII.  Water  Eights.     §§  1410-1422. 

IX.  Hydraulic  ^Mining.     §§  1424,  1425. 

X.  Mining   Claois,   Tunnel  Rights,  and  Mill   Sites. 
§§  1426-1 426s. 

Legislation  Part  IV.  Enacted  March  21,  1872,  and  then  contained 
Titles  I- VIII.  Title  IX  was  added  by  Stats.  1893,  p.  337.  and  Title  X 
by  Stats.  1909,  p.  313.  See  post,  tit.  "Legislation,"  under  the  respective 
titles,  chapters,  articles,  and  sections  constituting  the  part. 

TITLE    I. 
Modes  in  Which  Property  may  be  Acquired. 

§   1000.     Property,  how  acquired. 

§   1001.     Acquisition  of  property  by  exercise  of  eminent  domain. 

§  1000.     Property,  how  acquired.     Property  is  acquired  by : 

1.  Occupancy; 

2.  Accession; 

3.  Transfer; 

4.  Will;  or, 

5.  Succession. 

Legislation  §  1000.     Enacted  March  21,  1872. 

§  1001.  Acquisition  of  property  by  exercise  of  eminent 
domain.  Any  person  may,  without  further  lesrislative  action, 
acquire  private  property  for  any  use  specified  in  section  twelve 
hundred  and  thirty-eight  of  the  Code  of  Civil  Procedure  either 
by  consent  of  the  owner  or  by  proceedings  had  under  the  pro- 
visions of  title  seven,  part  three,  of  the  Code  of  Civil  Pro- 
cedure ;  and  any  person  seeking  to  acquire  property  for  any 
of  the  uses  mentioned  in  such  title  is  "an  agent  of  the  state," 


397  OCCUPANCY.  §  1007 

or  a  "person  in  charge  of  such  use,"  Avithin  the  meaning  of 
those  terms  as  used  in  such  title.  This  section  shall  be  in  force 
from  and  after  the  fourth  day  of  April,  eighteen  hundred  and 
seventy-two. 

Eminent  domain:   See  Code  Civ.  Proc,  §§  1237-1264. 

Legislation  §  1001.     Enacted  March  21,  1872. 


TITLE.  II. 
Occupancy. 

§  1006.     Occupancy  confers  certain  title. 
§  1007.     Prescription. 

§  1006.  Occupancy  confers  certain  title.  Occupancy  for 
any  period  confers  a  title  sufficient  against  all  except  the  state 
and  those  who  have  title  by  prescription,  accession,  transfer, 
will  or  succession ;  provided,  however,  that  the  title  conferred 
by  such  occupancy  shall  not  be  a  sufficient  interest  in  real 
property  to  enable  the  occupant  or  his  privies  to  commence  or 
maintain  an  action  to  quiet  title  under  the  provisions  of  section 
seven  hundred  thirty-eight  of  the  Code  of  Civil  Procedure  of 
this  state,  unless  such  occupancy  shall  have  ripened  into  title 
by  prescription.  [Amendment  approved  1915 ;  Stats.  1915, 
p.  933.] 

Legislation  §  1006.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  440.  As  enacted  in  1872  it  read:  "Occupancy 
for  any  period  confers  a  title  sufficient  against  all  except  the  state  and 
those  who  have  title  by  prescription,  accession,  transfer,  will,  or  suc- 
cession." 

2.  Amended  by  Stats.  1915,  p.  933. 

§  1007.  Prescription.  Occupancy  for  the  period  prescribed 
by  the  Code  of  Civil  Procedure  as  sufficient  to  bar  an  action 
for  the  recovery  of  the  property  confers  a  title  thereto,  de- 
nominated a  title  by  prescription,  which  is  sufficient  against 
all. 

Adverse  possession  passing  title;  See  Code  Civ.  Proc,  §§  321  et  seq. 
Legislation  §  1007.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  441. 


§  1015  CIVIL  CODE.  398 

TITLE    III. 
Accession. 

Chapter     I.     To   Keal  Property.     §§  1013-1019. 

II.     To   Personal  Property.     §§1025-1033. 

CHAPTER  I. 

Accession  to  Real  Property. 

§  1013.  Fixtures. 

§  1014.  Alluvion. 

§  1015.  Sudden  removal  of  bank. 

§  1016.  Islands,  in  navigable  streams. 

§  1017.  In  unnavigable  streams. 

§  1018.  Islands  formed  by  division  of  stream. 

§  1019.  What  fixtures  tenant  may  remove. 

§  1013.  Fixtures.  When  a  person  affixes  his  property  to 
the  land  of  another,  without  an  agreement  permitting  him  to 
remove  it,  the  thing  affixed,  except  as  provided  in  section  ten 
hundred  and  nineteen,  belongs  to  the  owner  of  the  land,  unless 
he  chooses  to  require  the  former  to  remove  it.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  224.] 
Fixtures:  See  ante,  §  660. 

Legislation  §  1013.  1,  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §4-12),  and  then  read:  "When  a  person  affixes 
his  property  to  the  land  of  another,  without  an  agreement  permitting 
him  to  remove  it,  the  thing  affixed  belongs  to  the  owner  of  the  land, 
unless  he  chooses  to  require  the  former  to  remove  it." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  224,  adding  the  exception. 

§  1014.  Alluvion.  Where,  from  natural  causes,  land  forms 
by  imperceptible  degrees  upon  the  bank  of  a  river  or  stream, 
navigable  or  not  navigable,  either  by  accumulation  of  material 
or  by  the  recession  of  the  stream,  such  land  belongs  to  the 
owner  of  the  bank,  subject  to  any  existing  right  of  way  over 
the  bank. 

Legislation  §  1014.     1.    Enacted    March    21,    1872;    based  ,«n   Field's 

Draft,  N.  Y.  Civ.  Code,  §  443. 

2.  Amendment   by   Stats.   1901,   p.   395;   unconstitutional.     See   note, 

§  4,  ante. 

§  1015.  Sudden  removal  of  bank.  If  a  river  or  stream, 
navigable  or  not  navigable,  carries  away,  by  sudden  violence, 
a  considerable  and  distinguishable  part  of  a  bank,  and  bears 
it  to  the  opposite  bank,  or  to  another  part  of  the  same  bank, 
the  owner  of  the  part  carried  aAvay  may  reclaim  it  within  a 
year  after  the  owner  of  the  land  to  which  it  has  been  united 
takes  possession  thereof. 


399  ACCESSION   TO   REAL  PROPERTY.  §  1019 

Legislation  §  1015.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  444. 

§  1016.  Islands,  in  navig-able  streams.  Islands  and  accumu- 
lations of  land,  formed  in  the  beds  of  streams  which  are  navi- 
gable, belong  to  the  state,  if  there  is  no  title  or  prescription 
to  the  contrary. 

Legislation  §  1016.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  445. 

§  1017.  In  unnavigable  streams.  An  island,  or  an  accumu- 
lation of  land,  formed  in  a  stream  which  is  not  navigable, 
belongs  to  the  owner  of  the  shore  on  that  side  where  the  island 
or  accumulation  is  formed;  or,  if  not  formed  on  one  side  only, 
to  the  OAvners  of  the  shore  on  the  two  sides,  divided  by  an 
imaginary  line  drawn  through  the  middle  of  the  river. 

Legislation  §  1017.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  446. 

2.  Amendment  by  Stats.  1901,  p.  395;  unconstitutional.  See  note, 
§  4,  ante. 

§  1018.  Islands  formed  by  division  of  stream.  If  a  stream, 
navigable  or  not  navigable,  in  forming  itself  a  new  arm,  di- 
vides itself  and  surrounds  land  belonging  to  the  owner  of  the 
shore,  and  thereby  forms  an  island,  the  island  belongs  to  such 
owner. 

Legislation  §  1018.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  447. 

§  1019.  What  fixtures  tenant  may  remove.  A  tenant  may 
remove  from  the  demised  premises,  any  time  during  the  con- 
tinuance of  his  term,  anything  affixed  thereto  for  purposes  of 
trade,  manufacture,  ornament,  or  domestic  use,  if  the  removal 
can  be  effected  without  injury  to  the  premises,  unless  the 
thing  has,  by  the  manner  in  which  it  is  affixed,  become  an  in- 
tegral part  of  the  premises. 

Legislation  §  1019.  Added  by  Code  Amdts.  1873-74,  p.  224,  being  a 
substitution  for  original  code  §  1019,  which  was  repealed  by  the  act 
making  the  substitution,  the  latter  section  reading:  "If  a  stream,  navi- 
gable or  not  navigable,  forms  a  new  course,  abandoning  its  ancient 
bed,  the  owners  of  the  land  newly  occupied  take,  by  way  of  indemnity, 
the  ancient  bed  abandoned,  each  in  proportion  to  the  land  of  which  he 
has  been  deprived." 


§  1029  CIVIL  CODE.  400 

CHAPTER  II. 

Accession  to  Personal  Property. 

§   1(125.  Aocession  by  uniting  several  things. 

§  102(3.  Principal  part,  what. 

§   1027.  Same. 

§   1028.  Uniting  materials  and  workmanship. 

§   1029.  Inseparable   materials. 

§   1030.  Materials  of  several  owners. 

§   1031.  Willful  trespassers. 

§  1032.  Owner  may  elect  between  the  thing  and  its  value. 

§   1033.  Wrong-doer  liable  in  damages. 

§  1025.  Accession  by  uniting'  several  things.  When  things 
belonging-  to  different  owners  haA^e  been  united  so  as  to  form 
a  single  thing,  and  cannot  be  separated  without  injury,  the 
whole  belongs  to  the  owner  of  the  thing  which  forms  the  prin- 
cipal part;  Avho  must,  however,  reimburse  the  value  of  the 
residue  to  the  other  owner,  or  surrender  the  whole  to  him. 

Legislation  §  1025.     Enacted  March  21.  1872;  based  on  Field's.  Draft, 

N.  Y.  Civ.  Code,  §  449. 

§  1026.  Principal  part,  what.  That  part  is  to  be  deemed 
the  principal  to  Avhieh  the  other  has  been  united  only  for 
the  use,  ornament,  or  completion  of  the  former,  unless  the  lat- 
ter is  the  more  valuable,  and  has  been  united  without  the 
knowledge  of  its  owner,  who  may,  in  the  latter  case,  require 
it  to  be  separated  and  returned  to  him,  although  some  injury 
should  result  to  the  thing  to  which  it  has  been  united. 

Legislation  §  1026.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  450. 

§  1027.  Same.  If  neither  part  can  be  considered  the  prin- 
cipal, Avithin  the  rule  prescribed  by  the  last  section,  the  more 
A^aluable,  or,  if  the  values  are  nearly  equal,  the  more  consid- 
erable in  bulk,  is  to  be  deemed  the  principal  part. 

Legislation  §  1027.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  451. 

§  1028.  Uniting  materials  and  workmanship.  If  one  makes 
a  thing  from  materials  belonging  to  another,  the  latter  may 
claim  the  thing  on  reimbursing  the  value  of  the  workmanship, 
unless  the  value  of  the  workmanship  exceeds  the  value  of  the 
materials,  in  which  case  the  thing  belongs  to  the  maker,  on 
reimbursing  the  value  of  the  materials. 

Legislation  §  1028.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  452. 

§  1029.  Inseparable  materials.  Where  one  has  made  use 
of  materials  which  in  part  belong  to  him  and  in  part  to  another. 


401  ACCESSION  TO  PERSONAL  PROPERTY.         §  1033 

in  order  to  form  a  thing  of  a  new  description,  without  having 
destroyed  any  of  the  materials,  but  in  such  a  way  that  they 
cannot  be  separated  without  inconvenience,  the  thing  formed 
is  common  to  both  proprietors;  in  proportion,  as  respects  the 
one,  of  the  materials  belonging  to  him,  and  as  respects  the 
other,  of  the  materials  belonging  to  him  aiid  the  price  of  his 
workmanship. 

Legislation  §  1029.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  453. 

§  1030.  Materials  of  several  owners.  When  a  thing  has 
been  formed  by  the  admixture  of  several  materials  of  different 
owners,  and  neither  can  be  considered  the  principal  substance, 
an  owner  without  whose  consent  the  admixture  was  made 
may  require  a  separation,  if  the  materials  can  be  separated 
without  inconvenience.  If  they  cannot  be  thus  separated,  the 
owners  acquire  the  thing  in  common,  in  proportion  to  the 
quantity,  quality,  and  value  of  their  materials;  but  if  the  mate- 
rials of  one  were  far  superior  to  those  of  the  others,  both  in 
quantity  and  value,  he  may  claim  the  thing  on  reimbursing 
to  the  others  the  value  of  their  materials. 

Legislation  §  1030.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  454. 

§  1031.  Willful  trespassers.  The  foregoing  sections  of  this 
article  are  not  applicable  to  eases  in  Avhich  one  willfully  uses 
the  materials  of  another  without  his  consent ;  but,  in  such 
cases,  the  product  belongs  to  the  owner  of  the  material,  if  its 
identity  can  be  traced. 

Legislation!  1031.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  455. 

§  1032.  Owner  may  elect  between  the  thing-  and  its  value. 
In  all  cases  where  one  whose  material  has  been  used  without 
his  knowledge,  in  order  to  form  a  product  of  a  different  de- 
scription, can  claim  an  interest  in  such  product,  he  has  an 
option  to  demand  either  restitution  of  his  material  in  kind,  in 
the  same  quantity,  weight,  measure,  and  quality,  or  the  value 
thereof;  or  where  he  is  entitled  to  the  product,  the  value 
thereof  in  place  of  the  product. 

Legislation  §  1032.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  456. 

§  1033.  Wrong-doer  liable  in  damages.  One  who  wrong- 
fully employs  materials  belonging  to  another  is  liable  to  him 
in  damages,  as  well  as  under  the  foregoing  provisions  of  this 
chapter. 

Legislation  §  1033.     Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  457. 
Civ.  Code — 26 


§  1040  CIVIL  CODE.  402 

TITLE    IV. 
Transfer. 

Chapter  I.     Transfer-  in    General.     Articles   I-V.     §§  1039-1085. 

II.     Transfer  of  Eeal  Property.     Articles  I,  II.     §§  1091-1115. 
III.     Transfer  of  Personal  Property.    Articles  I-III.     §§  1135-1153. 
IV.     Eeeording     Transfers     of     Eeal     Property.     Articles     I-IV, 

§§  1158-1218. 
V.     Unlawful  Transfers.     §§  1227-1231. 

Code  commissioners'  note.  "The  obligations  of  the  parties  to  a 
transfer  for  consideration,  or  to  a  contract  of  hiring,  are  regulated  by 
the  titles  on  sales,  on  exchange,  and  on  hiring.  Transfers  in  trust  for 
the  benefit  of  creditors  are  regulated  by  the  part  on  debtor  and 
creditor." 

CHAPTER  I. 

Transfer  in  General. 

Article  I.  Definition  of  Transfer.     §§1039,  1040. 

II.  What  may  be  Transferred.     §§  1044-1047. 

III.  Mode  of  Transfer.     §§  1052-1060. 

IV,  Interpretation   of   Grants.     §§  1066-1072. 

V.  Effect  of  Transfer.     §§1083-1085. 

AETICLE  I. 

Definition  of  Transfer. 

§  1039.     Transfer,  what. 

§  1040.     Voluntary  transfer. 

§  1039.     Transfer,  what.     Transfer  is  an  act  of  the  parties, 
or  of  the  law,  by  which  the  title  to  property  is  conveyed  from 
one  living  person  to  another. 
Transfer:  See  post,  §§  1040,  1053. 

Legislation  §  1039.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  458. 

§  1040.  Voluntary  transfer.  A  voluntary  transfer  is  an 
executed  contract,  subject  to  all  rules  of  law  concerning  con- 
tracts in  general;  except  that  a  consideration  is  not  necessary 
to  its  validity. 

Gifts:  See  post,  §§  1146  et  seq. 
Transfer:  See  ante,  §  1039;  post,  §  1053. 
Voluntary  conveyances:  See  post,  §  3442. 

Legislation  §  1040.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  459. 


403  WHAT  MAY  BE  TRANSFERRED.       MODE  OF  TRANSFER.      §  1052 

ARTICLE  II. 

What   may   be    Transferred. 

§  1044.  What  may  be  transferred. 

§  1045.  Possibility. 

§  1046.  Eight  of  re-entry  can  be  transferred. 

§  1047.  Owner  ousted  of  possession  may  transfer. 

§  1044.  What  may  be  transferred.  Property  of  any  kind 
may  be  transferred,  except  as  otherwise  provided  by  this 
article. 

Legislation  §  1044.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  460. 

§  1045.  Possibility.  A  mere  possibility,  not  coupled  with 
an  interest,  cannot  be  transferred. 

Legislation  §  1045.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  461. 

§  1046.     Right  of  re-entry  can  be  transferred.    A  right  of 

re-entry,  or  of  repossession  for  breach  of  condition  subsequent, 

can  be  transferred. 

Legislation  §  1046.  Enacted  March  21,  1872.  The  code  commission- 
ers say:  "This  reverses  the  rule  in  §  462  (N.  Y.  Civ.  Code).  It  har- 
monizes analogically  with  the  following  section,  which  is  based  on  our 
statute." 

§  1047.     Owner   ousted  of  possession  may  transfer.    Any 

person  claiming  title  to  real  property  in  the  adverse  possession 
of  another  may  transfer  it  with  the  same  effect  as  if  in  actual 
possession. 

Mortgage  upon  property  held  adversely:  See  post,  §  2921. 

Legislation  §  1047.  Enacted  March  21,  1872;  based  on  Conveyance 
Act    1850,  p.  249,  §  34. 

ARTICLE  III. 

Mode  of  Transfer. 

§  1052.  When  oral. 

§  1053.  Grant,  what. 

§  1054.  Delivery  necessary. 

§  1055.  Date. 

§  1056.  Delivery  to  grantee  is  necessarily  absolute. 

§  1057.  Delivery  in  escrow. 

§  1058.  Surrendering  or  canceling  grant  does  not  reconvey. 

§  1059.  Constructive  delivery. 

§  1060,  Gratuitous  grants  take  effect  immediately;  exception.    [Eepealed.] 

§  1052.  When  oral.  A  transfer  may  be  made  without  writ- 
ing, in  every  case  in  which  a  writing  is  not  expressly  required 
by  statute. 

WHat  contracts  must  be  in  writing:  See  post,  §  1624. 

Unlawful  transfers:  See  post,  §§  1227  et  seq. 

Fraudulent  instruments  and  transfers:  See  post,  §§  3439  et  seq. 


§  1057  CIVIL  CODE.  404 

Legislation  §  1052.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  464. 

§  1053.  Grant,  what.  A  transfer  in  Avriting  is  called  a 
grant,  or  conveyance,  or  bill  of  sale.  The  term  "grant,"  in 
this  and  the  next  two  articles,  includes  all  these  instruments, 
unless  it  is  specially  applied  to  real  property.  [Amendment 
approved  1874 ;  Code  Amdts.  1873-74,  p.  225.] 

Covenants  implied  from  a  "grant"  of  realty:  See  post,  §  1113. 

Transfer:  See  ante,  §§  1039,  1040. 

Legislation  §  1053.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  464),  and  then  read:  "A  transfer  in  writing 
is  called  a  grant." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  225. 

§  1054.  Delivery  necessary.  A  grant  takes  effect,  so  as  to 
vest  the  interest  intended  to  be  transferred,  only  upon  its  de- 
livery by  the  grantor. 

Constructive  delivery:  See  post,  §  1059. 

Contract  in  writing  takes  effect  only  from  delivery:  See  post,  §  1626. 

Legislation  §  1054.     Enacted  March  21,  1872;  the  code  commissioners 

say  in   relation   to  this   section,   "N.  Y.  Civ.  Code,   §   465;   Hastings   v. 

Vaughan,  5  Cal.  315;  Bar  v.  Schroeder,  32  Cal.  610.     As  to  delivery, 

see  cases  cited  to  the  next  section;  also,  §  1059,  on  'Escrows.'" 

§  1055.  Date.  A  grant  duly  executed  is  presumed  to  have 
been  delivered  at  its  date. 

Legislation  §  1055.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  466;  Bagley  v.  McMickle,  9  Cal.  430;  Bensley 
V.  Atwill,  12  Cal.  231;  Bar  v.  Schroeder,  32  Cal.  610;  Fitch  v.  Bunch, 
30  Cal.  208. 

2.  Amendment  by  Stats.  1901,  p.  395;  unconstitutional.  See  note, 
§  4,  ante. 

§  1056.     Delivery    to    grantee    is    necessarily    absolute.    A 

grant  cannot  be  delivered  to  the  grantee  conditionally.  De- 
livery to  him,  or  to  his  agent  as  such,  is  necessarily  absolute, 
and  the  instrument  takes  effect  thereupon,  discharged  of  any 
condition  on  which  the  delivery  was  made. 

Legislation  §  1056.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  467. 

§  1057.  Delivery  in  escrow.  A  grant  may  be  deposited  by 
the  grantor  with  a  third  person,  to  be  delivered  on  perform- 
ance of  a  condition,  and,  on  delivery  by  the  depositary,  it  will 
take  effect.  While  in  the  possession  of  the  third  person,  and 
subject  to  condition,  it  is  called  an  escrow. 

Legislation  §  1057.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  468;  Beem  v.  McKusick,  10  Cal.  538;  Fitch  v.  Bunch, 

30  Cal.  208;  Byron  v.  Bradshaw,  23  Cal.  528. 


405  INTERPRETATION    OF    GRANTS.  §  1067 

§  1058.    Surrendering  or  canceling-  grant  does  not  reconvey. 

Redelivering  a  grant  of  real  property  to  the  grantor,  or  cancel- 
ing it,  does  not  operate  to  retransfer  the  title. 

Legislation  §  1058.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  469;  Snodgrass  v.  Picketts,  13  Cal.  359;  Kearsing  v. 
Kilian,  18  Cal.  491;  Bowman  v.  Ciidworth,  31  Cal.  148;  Killey  v.  Wil- 
son, 33  Cal.  691;  Lawton  v.  Gordon,  34  Cal.  36;  Byron  v.  Bradshaw,  23 
Cal.  528, 

§  1059.  Constructive  delivery.  Though  a  grant  be  not  actu- 
ally delivered  into  the  possession  of  the  grantee,  it  is  yet  to 
be  deemed  constructively  delivered  in  the  following  cases : 

1.  Where  the  instrument  is,  by  the  agreement  of  the  parties 
at  the  time  of  execution,  understood  to  be  delivered,  and  under 
such  circumstances  that  the  grantee  is  entitled  to  immediate 
delivery ;  or, 

2.  Where  it  is  delivered  to  a  stranger  for  the  benefit  of  the 
grantee,  and  his  assent  is  shoAvn,  or  may  be  presumed. 

Legislation  §  1059.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  470;  Hastings  v.  Vaughan,  5  Cal.  315. 

§  1060,  Gratuitous  grants  take  effect  immediately ;  excep- 
tion,     [Repealed  1874;  Code  Amdts.  1873-74,  p.  225.] 

Legislation  §  1060.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  225. 

ARTICLE  nr. 

Interpretation  of  Grants. 

§  1066.  Grants,  how  interpreted. 

§  1067.  Limitations,  how  controlled. 

§  1068.  Recitals,  when  resorted  to. 

§  1069.  Interpretation  against  grantor. 

§  1070.  Irreconcilable  provisions. 

§  1071.  Meaning  of  "heirs"  and  "issue,"  in  certain  remainders. 

§  1072.  Words  of  inheritance  unnecessary. 

§  1066.  Grants,  how  interpreted.  Grants  are  to  be  inter- 
preted in  like  manner  with  contracts  in  general,  except  so 
far  as  is  otherwise  provided  in  this  article. 

Interpretation  of  contracts:   See  post,  §§  1636,  1641. 
Legislation  §  1066.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  472. 

§  1067.  Limitations,  how  controlled,  A  clear  and  distinct 
limitation  in  a  grant  is  not  conti'ollod  l)y  other  words  less  clear 
and  distinct. 

Legislation  §  1067.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  473. 

2.  Amendment  by  Stats.  1901,  p.  396;  unconstitutional.  See  note, 
§  4,  ante. 


§  1083  CIVIL  CODE.  406 

§  1068.  Recitals,  when  resorted  to.  If  the  operative  words 
of  a  grant  are  doubtful,  recourse  may  be  had  to  its  recitals 
to  assist  the  construction. 

Interpretation  of  dou'btful  words:  See  post,  §  1654. 
Legislation  §  1068.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  474. 

§  1069.  Interpretation  against  grantor.  A  grant  is  to  be  in- 
terpreted in  favor  of  the  grantee,  except  that  a  reservation 
in  any  grant,  and  every  grant  by  a  public  officer  or  body,  as 
such,  to  a  private  party,  is  to  be  interpreted  in  favor  of  the 
grantor. 

Legislation!  1069.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  475;  Muller  v.  Boggs.  25  Cal.  175;  Dodge  v.  Walley, 
22  Cal.  224;  Vance  v.  Fore,  24  Cal.  435. 

§  1070.  Irreconcilable  provisions.  If  several  parts  of  a 
grant  are  absolutely  irreconcilable,  the  former  part  prevails. 

Legislations  1070.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  476;  Havens  v.  Dale,  18  Cal.  359. 

§  1071.  Meaning  of  ' '  heirs ' '  and  ' '  issue, ' '  in  certain  remain- 
ders. "Where  a  future  interest  is  limited  by  a  grant  to  take 
effect  on  the  death  of  any  person  -without  heirs,  or  heirs  of  his 
body,  or  without  issue,  or  in  equivalent  words,  such  words 
must  be  taken  to  mean  successors,  or  issue  living  at  the  death 
of  the  person  named  as  ancestor. 

"Heirs,"  interpretation  of:  See  post,  §  1334. 
"Issue,"  interpretation  of:  See  post,  §  1334. 

Legislation  §  1071.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.   Civ.  Code,  §477;  Stats.  1855,  p.  171,  §  2. 

§  1072.  Words  of  inheritance  unnecessary.  Words  of  in- 
heritance or  succession  are  not  requisite  to  transfer  a  fee  in 
real  property. 

A  fee-simple  is  presumed  to  be  intended  to  be  conveyed,  unless  the 
contrary  appears  from  the  grant:  See  post,  §  1105. 

Devise  of  fee.     Word  "heirs"  not  necessary:   See  post,  §  1329. 

What  estate  a  fee:  See  ante,  §  762. 

Legislation  §  1072.  Enacted. March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  478;  Stats.  1855,  p.  171,  §  3. 

AKTICLE  V. 

Effect  of  Transfer. 

§  1083.     What  title  passes. 

§  1084.     Incidents. 

§  1085.     Grant  may  inure  to  benefit  of  stranger. 

§  1083.  What  title  passes.  A  transfer  vests  in  the  trans- 
feree all  the  actual  title  to  the  thing  transferred  which  the 


407  MODE  OF   TRANSFER  OF  REAL  PROPERTY.  §  1091 

transferrer  then  has,  unless  a  different  intention  is  expressed 
or  is  necessarily  implied. 

Legislation  §  1083.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  479. 

§  1084.  Incidents.  The  transfer  of  a  thing  transfers  also 
all  its  incidents,  unless  expressly  excepted ;  but  the  transfer 
of  an  incident  to  a  thing  does  not  transfer  the  thing  itself. 

What  passes:  See  post,  §§  1104,  3540. 
Appurtenances:  See  ante,  §  476. 

Legislation  §  1084.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  481. 

§  1085.  Grant  may  inure  to  benefit  of  stranger.  A  present 
interest,  and  the  benefit  of  a  condition  or  covenant  respecting 
property,  may  be  taken  by  any  natural  person  under  a  grant, 
although  not  named  a  party  thereto. 

Legislation  §  1085.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  482. 

CHAPTER  II. 
Transfer  of  Real  Property. 

Article  I.     Mode    of   Transfer.     §§1091-1096. 
II.     Effect  of  Transfer.     §§  1104-1115. 

ARTICLE  I. 

Mode  of  Transfer. 

§  1091.  Eequisites  for  transfer  of  certain  estates. 

§  1092.  Form  of  grant. 

§  1093.  Grant  by  married  women,  how  acknowledged. 

§  1094.  Power  of  attorney  of  married  women,  how  acknowledged. 

§  1095.  Attorney  in  fact,  how  must  execute  for  principal. 

§  1096.  Conveyance  when  name  of  person  has  been  changed. 

§  1091.  Requisites  for  transfer  of  certain  estates.  An  es- 
tate in  real  property,  other  than  an  estate  at  will  or  for  a  term 
not  exceeding  one  year,  can  be  transferred  only  by  operation 
of  law,  or  by  an  instrument  in  writing,  subscribed  by  the 
party  disposing  of  the  same,  or  by  his  agent  thereunto  author- 
ized by  writing. 

Transfer  of  realty:  Code  Civ.  Proc,  §§  1971-1973. 

Requisites  of  transfer  of  real  property:  See  corresponding  section  in 
Code  Civ.  proc,  §  1971.     See  further,  post,  §  1624,  subd.  5. 

Conveyances  by  person  whose  name  is  changed:  See  post,  §  1096. 

Legislation  §  1091.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §483;  Fraudulent  Conveyance  and  Contract  Act  1850, 
Stats.  1850,  p.  266,  §  6.  The  code  commissioners  say:  "  'Thereunto  au- 
thorized by  writing,  is  an  addition  to  our  statute  of  'Conveyances'  (§1), 
but  is  required  by  §  6,  'Fraudulent  Conveyances,'  and  by  Videau  v. 
GriflSn,  21  Cal.  389.     A  transfer  of  real  property  is  called  a  grant.     At 


§  1094  CIVIL  CODE.  408 

first  it  seemed  of  rloubtful  propriety  to  change  from  'deed'  to  'grant.' 
Either  word  is  legally  sulfieient.  The  ear  is  more  accustomed  to  'deed' 
or  'conveyance,'  though  'grant'  is  familiar  to  common-law  lawyers.  The 
New  York  revisers  adopt  'grant.'  Considering  its  derivatives,  it  is  great 
economy  in  time  and  space — 'grantor'  and  'grantee' — which  can  be  so 
often  used  in  a  conveyance  in  place  of  'party  of  the  first  part'  and  'party 
of  the  second  part'  (see  form  of  grant).  These,  we  think,  are  suflScient 
reasons  for  the  change  from  'deed'  to  'grant.'  Besides,  'deed'  more 
especially  implies  a  seal,  which  has  been  abolished." 

§  1092.  Form  of  grant.  A  grant  of  an  estate  in  real  prop- 
erty may  be  made  in  substance  as  follows : 

"I,  A  B,  grant  to  C  D  all  that  real  property  situated  in  (in- 
sert name  of  county)  county,  state  of  California,  bounded  (or 
described)  as  follows:  (here  insert  description,  or  if  the  land 
sought  to  be  conveyed  has  a  descriptive  name,  it  may  be  de- 
scribed by  the  name,  as  for  instance,  'The  Norris  Ranch.') 

"Witness  mv  hand  this  (insert  day)  dav  of  (insert  month), 
18—.  ■  '  "A  B." 

As  to  conveyances  by  person  who  has  changed  his  or  her  name,  see 
post,  §  1096. 

Legislation  §  1092.     Enacted  March  21,  1872. 

§  1093.     Grant  by  married  women,  how  acknowledgfed.     A 

grant  or  conveyance  of  real  property  made  by  a  married 
woman  may  be  made,  executed,  and  acknowledged  in  the  same 
manner  and  has  the  same  effect  as  if  she  were  unmarried. 
[Amendment  approved  1895 ;  Stats.  1895,  p.  53.] 

Conveyance  and  acknowledgment  by  married  women:  See  post, 
§  1187. 

Legislation  §  1093.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  X.  Y.  Civ.  Code.  §  486;  Husband  and  Wife.  §  6;  Conveyance  Act 
1850,  Stats.  1850,  p.  249,  §§19-23  (inclusive);  Morrison  v.  Wilson,  13 
Cal.  494;  Landers  v.  Bolton,  26  Cal.  393),  and  then  read:  "No  estate  in 
the  real  property  of  a  married  woman  passes  by  any  grant  purporting  to 
be  executed  or  acknowledged  by  her,  unless  the  grant  or  instrument  is 
acknowledged  bv  lier  in  the  manner  prescribed  bv  sections  1186  and 
1191." 

2.  Amended  by  Stats.  1895,  p.  53. 

§  1094.  Power  of  attorney  of  married  women,  how  acknowl- 
edged. A  married  Avoman  may  make,  execute,  and  revoke 
poAvers  of  attorney  for  the  sale,  conveyance,  or  encumbrance 
of  her  real  or  personal  estate,  Avhich  shall  have  the  same  effect 
as  if  she  Avere  unmarried,  and  may  be  acknoAvledged  in  the 
same  manner  as  a  grant  of  real  propertv.  [Amendment  ap- 
proved 1895;  Stats.  1895,  p.  39.] 

Legislation  §  1094.  1.  Enacted  March  21,  1872  (based  on  Stats.  1863. 
p.  165;  the  code  commissioners  giving  as  general  references  to  the  sub- 
ject: Mott  V.  Smith,  16  Cal.  533;  Dentzel  v.  Waldie,  30  Cal.  138;  Dow 
V.  Gould  and  Curry  S.  M.  Co.,  31  Cal.  629;  Eaceouillat  v.  Sansevain. 
32  Cal.  376),  and  then  read:  "A  power  of  attorney  of  a  married  Avoman. 
authorizing  the  execution   of  an  instrument  transferring  an  estate  in 


409  EFFECT  OF  TRANSFER  OF  REAL  PROPERTY.  §  1104 

her  separate  real  property,  has  no  validity  for  that  purpose  until 
acknowledged  by  her  in  the  manner  provided  in  sections  1186  and 
1191." 

2.  Amended  by  Stats.  1895,  p.  39. 

§  1095.     Attorney  in  fact,  how  must  execute  for  principaL 

When  an  attorney  in  fact  executes  an  instrument  transferring 
an  estate  in  real  property,  he  must  subscribe  the  name  of  his 
principal  to  it,  and  his  own  name  as  attorney  in  fact. 

Legislation  §  1095.  Enacted  March  21,  1872;  based  on  Fisher  v. 
Salmon,  1  Cal.  413;  Salmon  v.  Hoffmann,  2  Cal.  138;  Videau  v.  Griffin, 
21  Cal.  389;  Dupont  v.  Wertheman,  10  Cal.  354;  Hunter  v.  Watson,  12 
Cal.  363;  Morrison  v.  Bowman,  29  Cal.  337. 

§  1096.  Conveyance  when  name  of  person  has  been  changed. 
Any  person  in  whom  the  title  of  real  estate  is  vested,  who  shall 
afterwards,  from  any  cause,  have  his  or  her  name  changed, 
must,  in  any  conveyance  of  said  real  estate  so  held,  set  forth 
the  name  in  which  he  or  she  derived  title. to  said  real  estate. 
Legislation  §  1096.  1.  Addition  by  Stats.  1901,  p.  396;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  602;  the  code  commissioner  saying,  "§  1 
of  the  statute  of  1873-74,  p.  345,  relating  to  conveyances  of  real  estate, 
is  codified  in  the  above  section.  The  rest  of  the  statute  should  be 
added  to  the  Political  Code." 

AETICLE  11. 

Effect  of  Transfer. 

§  1104.  What  easements  pass  with  property. 

§  1105.  When  fee-simple  title  is  presumed  to  pass. 

§  1106.  Subsequently  acquired  title  passes  by  operation  of  law. 

§  1107.  Grant,  how  far  conclusive  on  purchaser. 

§  1108.  Conveyances  by  owner  for  life  or  for  years. 

§  1109.  Grant  made  on  condition  subsequent. 

§  1110.  Grants  on  condition,  when  absolute. 

§  1111.  Grant  of  rents,  reversions,  and  remainders. 

§  1112.  Boundary  by  highway,  what  passes. 

§  1113.  Implied  covenants. 

§  1114.  What  the  term  "encumbrances"  embraces. 

§  1115.  Lineal  and  collateral  warranties  abolished. 

§  1104.  What  easements  pass  with  property.  A  transfer 
of  real  property  passes  all  easements  attached  thereto, 
and  creates  in  favor  thereof  an  easement  to  use  other  real 
property  of  the  person  whose  estate  is  transferred  in  the 
same  manner  and  to  the  same  extent  as  such  property  was 
obviously  and  permanently  used  by  the  person  whose  estate 
is  transferred,  for  the  benefit  thereof,  at  the  time  when  the 
transfer  was  agreed  upon  or  completed. 

Transfer  carries  easements:    See  the  general   subject   of  easements 

ante,  §  801.  ' 

Transfer  of  a  thing  carries  its  incidents:  Ante,  §  1084;  post,  §  3540. 


§  1110  CIVIL  CODE.  410 

Legislation  §  1104.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  488. 

§  1105.  When  fee-simple  title  is  presumed  to  pass.  A  fee- 
simple  title  is  presumed  to  be  intended  to  pass  by  a  grant  of 
real  property,  unless  it  appears  from  the  grant  that  a  lesser 
estate  was  intended. 

Legislation  §  1105.     Enacted  March  21,  1872. 

§  1106.  Subsequently  acquired  title  passes  by  operation  of 
law.  Where  a  person  purports  by  proper  instrument  to  grant 
real  property  in  fee-simple,  and  subsequently  acquires  any 
title,  or  claim  of  title  thereto,  the  same  passes  by  operation 
of  law  to  the  grantee,  or  his  successors. 

Legislation  §  1106.     1.   Enacted   March   21,   1872;    based   on   Convey- 
ance Act  1S50,  Stats.  1850,  p.  249,  §  33. 

2.  Amendment  by   Stats.   1901,  p.   396;   unconstitutional.     See   note, 
§  4,  ante. 

§  1107.  Grant,  how  far  conclusive  on  purchaser.  Every 
grant  of  an  estate  in  real  property  is  conclusive  against  the 
grantor,  also  against  every  one  subsequently  claiming  under 
him,  except  a  purchaser  or  encumbrancer  who  in  good  faith 
and  for  a  valuable  consideration  acquires  a  title  or  lien  by  an 
instrument  that  is  first  duly  recorded. 

Rights  against  unrecorded  instruments:   See  post,  §  1214. 
Legislation  §  1107.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  490. 

§  1108.     Conveyances  by   owner  for  life  or  for  years.     A 

grant  made  by  the  owner  of  an  estate  for  life  or  years,  pur- 
porting to  transfer  a  greater  estate  than  he  could  lawfully 
transfer,  does  not  work  a  forfeiture  of  his  estate,  but  passes 
to  the  grantee  all  the  estate  which  the  grantor  could  lawfully 
transfer. 

Legislation  §  1108.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  491. 

§  1109.  Grant  made  on  condition  subsequent.  Where  a 
grant  is  made  upon  condition  subsequent,  and  is  subsequently 
defeated  bj^  the  non-performance  of  the  condition,  the  person 
otherwise  entitled  to  hold  under  the  grant  must  reconvey  the 
property  to  the  grantor  or  his  successors,  by  grant,  duly  ac- 
knowledged for  record. 

Conditions:  See  ante,  §§  708  et  seq. 
Legislation  §  1109.     Enacted  March  21,  1872. 

§  1110.  Grants  on  condition,  when  absolute.  An  instru- 
ment purporting  to  be  a  grant  of  real  property,  to  take  effect 
upon  condition  precedent,  passes  the  estate  upon  the  perform- 


411         EFFECT  OF  TRANSFER  OF  REAL  PROPERTY.       §  1113 

ance  of  the  condition.     [Amendment    approved    1874;    Code 

Amdts.  1873-74,  p.  225.] 

Legislation  §  1110.  1.  Enacted  March  21,  1872,  and  then  read:  "An 
instrument  purporting  to  be  a  grant  of  real  property,  to  take  effect 
upon  condition  precedent,  does  not  pass  the  estate  upon  the  perform- 
ance of  the  condition.  Such  instrument  is  an  executory  contract  for 
the  conveyance  of  the  property.  Upon  the  performance  of  the  condi- 
tion, the  grantee  is  entitled  to  a  grant  from  the  grantor  or  his  suc- 
cessors for  the  property,  duly  acknowledged  for  record." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  225. 

§  1111,  Grant  of  rents,  reversions,  and  remainders.  Grants 
of  rents  or  of  reversions  or  of  remainders  are  good  and  effec- 
tual without  attornments  of  the  tenants;  but  no  tenant  who, 
before  notice  of  the  grant,  shall  have  paid  rent  to  the  grantor, 
must  suffer  any  damage  thereby. 

Grantee's  or  devisee's  right  to  rents:  See  ante,  §  821. 
Legislation  §  1111.     Enacted  March  21,   1872;   based  on  Stats.   1855, 
p.  171,  §  6. 

§  1112.  Boundary  by  highway,  what  passes.  A  transfer  of 
land,  bounded  by  a  highway,  passes  the  title  of  the  person 
whose  estate  is  transferred  to  the  soil  of  the  highway  in  front 
to  the  center  thereof,  unless  a  different  intent  appears  from 
the  grant.  [Amendment  approved  1874;  Code  Amdts.  1873- 
74,  p.  225.] 

Highway  as  boundary:   See  ante,  §  831. 

Legislation  §  1112.     1.    Enacted    March    21,    1872    (based    on   Field's 

Draft,  N.   Y.   Civ.   Code,  §  492),   and  then  read:    "A   transfer  of  land, 

bounded  by  a  highway,  passes  the  title  of  the  person  whose  estate  is 

transferred  to  the  soil  of  the  highway  in  front  to  the  center  thereof." 

2.  Amended  by  Oode  Amdts.  1873-74,  p.  225. 

§  1113.     Implied  covenants.     From    the    use    of   the    word 

"grant"  in  any  conveyance  by  which  an  estate  of  inheritance 
or  fee-simple  is  to  be  passed,  the  following  covenants,  and 
none  other,  on  the  part  of  the  grantor  for  himself  and  his 
heirs  to  the  grantee,  his  heirs,  and  assigns,  are  implied,  unless 
restrained  by  express  terms  contained  in  such  conveyance : 

1.  That  previous  to  the  time  of  the  execution  of  such  con- 
veyance, the  grantor  has  not  conveyed  the  same  estate,  or  any 
right,  title,  or  interest  therein,  to  any  person  other  than  the 
grantee ; 

2.  That  such  estate  is  at  the  time  of  the  execution  of  such 
conveyance  free  from  encumbrances  done,  made,  or  suffered 
by  the  grantor,  or  any  person  claiming  under  him. 

Such  covenants  may  be  sued  upon  in  the  same  manner  as 
if  they  had  been  expressly  inserted  in  the  conveyance. 

Covenants  running  with  land:  See  post,  §§  1460-1468. 
The  "usual  covenants":  See  post,  §  1733. 


§  1136  CIVIL  CODE.  412 

Legislation  §  1113.  Enacted  March  21,  1872;  based  on  Stats.  1855, 
p.  172,  §9. 

§1114.     What  the  term   "encumbrances"   embraces.     The 

term  "encumbrances"  includes  taxes,  assessments,  and  all 
liens*  upon  real  property.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  225-1 

Legislation  §  1114.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
term  'encumbrances'  includes  taxes  and  assessments;  also,  attachment, 
judgment,  and  execution  liens;  also,  vendors',  mechanics',  and  mort- 
gage liens;  also,  all  other  debts  or  demands  which  are  liens  upon  real 
property." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  225. 

§  1115.  Lineal  and  collateral  warranties  abolished.  Lineal 
and  collateral  Avarranties,  Avitli  all  their  incidents,  are  abol- 
ished; but  the  heirs  and  devisees  of  every  person  who  has 
made  any  covenant  or  agreement  in  reference  to  the  title  of, 
in,  or  to  any  real  property,  are  answerable  upon  such  cove- 
nant or  agreement  to  the  extent  of  the  land  descended  or  de- 
vised to  them,  in  the  cases  and  in  the  manner  prescribed  by 
law. 

Legislation  §  1115.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  494;  Conveyance  Act  1855,  Stats.  1855,  p.  171,  §  8. 


CHAPTER  III. 

Transfer  of  Personal  Property. 

Article  I.     Mode  of  Transfer.     §§1135,1136. 

11.     What  Operates  as  a  Transfer.     §§  1140-1142, 
III.     Gifts.     §§  1146-1153. 

AETICLE  I. 

Mode  of  Transfer. 

§  1135.     When  must  be  in  writing. 
§  1136.     Transfer  by  sale,  etc. 

§  1135.     When  must  be  in  writing'.     An  interest  in  a  ship, 
or  in  an  existing  trust,  can  be  transferred  only  by  operation 
of  law,  or  by  a  written  instrument,  subscribed  by  the  person 
making  the  transfer,  or  by  his  agent. 
Transfer  of  ship:  See  post,  §  3440. 

Legislation  §  1135.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  495.  The  code  commissioners  say:  "This  provision 
is  intended  to  settle  a  doubtful  question.  The  uniform  language  of  the 
authorities  is,  that  a  bill  of  sale  is  the  customary  and  proper  mode  of 
transfer.     Agreements  for  sale  are  regulated  by  the  title  on  sale." 

§  1136.  Transfer  by  sale,  etc.  The  mode  of  transferring 
other  personal  property  by  sale  is  regulated  by  the  title  on 
that  subject,  in  division  third  of  this  code. 


413  WHAT  OPERATES   AS  TRANSFER   OP   PERSONALTY.         §  1142 

Transfer  of  obligations:  See  post,  §§  1457  et  seq.  ' 

Sales  of  property.     Generally:  See  post,  §§  1721  et  seq. 
Legislation  §  1136.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  496. 

ARTICLE  II. 

What  Operates  as  a  Transfer. 

§  1140.     Transfer  of  title  under  sale. 

§  1141.     Transfer  of   title  under  executory  agreement   for   sale. 

§  1142.     When  buyer  acquires  better  title  than  seller  has. 

§  1140.  Transfer  of  title  under  sale.  The  title  to  personal 
property,  sold  or  exchanged,  passes  to  the  buyer  Avhenever  the 
parties  agree  upon  a  present  transfer,  and  the  thing  itself  is 
identified,  whether  it  is  separated  from  other  things  or  not. 

Validity  of  sale  of  personal  property:  See  post,  §§  1624,  1739  et  seq. 
Delivery:  See  post,  §§  1753  et  seq.;  ante,  §  1054. 
Agreement  to  sell  and  buy,  defined:  See  post,  §  1729. 
Legislation  §  1140.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  497. 

§  1141.  Transfer  of  title  under  executory  agreement  for 
sale.  Title  is  transferred  by  an  executory  agreement  for  the 
sale  or  exchange  of  personal  property  only  w^hen  the  buyer 
has  accepted  the  thing,  or  when  the  seller  has  completed  it, 
prepared  it  for  delivery,  and  offered  it  to  the  buyer,  Avith  in- 
tent to  transfer  the  title  thereto,  in  the  manner  prescribed  by 
the  chapter  upon  offer  of  performance. 

Offer  of  performance:  See  post,  §§  1485  et  seq. 

Legislation  §  1141.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  498. 

§  1142.     When  buyer  acquires  better  title  than  seller  has. 

Where  the  possession  of  personal  property,  together  with  a 
power  to  dispose  thereof,  is  transferred  by  its  owner  to  another 
person,  an  executed  sale  by  the  latter,  while  in  possession,  to 
a  buyer  in  good  faith  and  in  the  ordinary  course  of  business, 
for  value,  transfers  to  such  buyer  the  title  of  the  former  owner, 
though  he  may  be  entitled  to  rescind,  and  does  rescind  the 
transfer  made  by  him. 

Salea  by  factor:  See  post,  §  2368. 

Legislation  §  1142.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  499. 


§  1151  -  CIVIL  CODE,  414 

ARTICLE  III. 

Gifts. 

§  1146.  Gifts  defined. 

§  1147.  Gift,  how  made. 

§  1148.  Gift  not  revocable. 

§  1149.  Gift  in  view  of  death,  what. 

§  1150.  When  gift  presumed  to  be  in  view  of  death. 

§  1151.  Eevocation  of  gift  in  view  of  death. 

§  1152.  Effect  of  will  upon  gift. 

§  1153.  When  treated  as  legacy. 

§  1146.     Gifts  defined.     A  gift  is  a  transfer  of  personal  prop- 
erty, made  voluntarily,  and  without  consideration. 
Voluntary  transfers:  See  ante,  §  1040;  post,  §  3439. 
Legislation  §  1146.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  500. 

§  1147.  Gift,  how  made.  A  verbal  gift  is  not  valid,  unless 
the  means  of  obtaining  possession  and  control  of  the  thing 
are  given,  nar,  if  it  is  capable  of  delivery,  unless  there  is  an 
actual  or  symbolical  delivery  of  the  thing  to  the  donee. 

Legislation  §  1147.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  501. 

§  1148.     Gift  not  revocable.     A  gift,  other  than  a  gift  in 
view  of  death,  cannot  be  revoked  by  the  giver. 
Revoking  gifts  mortis  causa:  Post,  §  1151. 

Legislation  §1148.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  502. 

§  1149.  Gift  in  view  of  death,  what.  A  gift  in  view  of 
death  is  one  which  is  made  in  contemplation,  fear,  or  peril 
of  death,  and  with  intent  that  it  shall  take  effect  only  in  case  of 
the  death  of  the  giver. 

Revoking  gift  In  view  of  death:  See  post,  §  1151. 
Legislation  §  1149.     1.    Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  503. 

2.  Amendment  by   Stats.   1901,   p.   396;   unconstitutional.     See   note, 
§  4,  ante. 

§  1150.    When  gift  presumed  to  be  in  view  of  death.     A 

gift  made  during  the  last  illness  of  the  giver,  or  under  circum- 
stances which  Avould  naturally  impress  him  with  an  expecta- 
tion of  speedy  death,  is  presumed  to  be  a  gift  in  view  of  death. 
Legislation  §  1150.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  504. 

§  1151.  Revocation  of  gift  in  view  of  death.  A  gift  in  view 
of  death  may  be  revoked  by  the  giver  at  any  time,  and  is 
revoked  by  his  recovery  from  the  illness,  or  escape  from  the 
peril,  under  the  presence  of  which  it  was  made,  or  by  the  oc- 


«fF^  f^  .^  ,  ^^  ^^  Recorded.  Any  instrument  or  judgment 
affectmg  the  title  to  or  possession  of  real  property  may  be 
recorded  under  this  chapter:  tprovided,  however,  thai  deeds  or 
grants  conveying  to  a  political  corporation  or  governmental  agency 
real  estate,  or  any  interest  therein,  or  easements  thereon,  for 
public  purposes  shall  not  be  accepted  for  recordation  without  the 
Ttt^chL°L'^\^"rT  "^'^^""d  by  Its  resolution  of  acceptance 
Apnl  29,    1921.     Stats.    1921,   Chap.    143.)  Civ.    Code     1921 


415  WHAT  INSTRUMENTS   MAY   BE  RECORDED.  §  1158 

curreiice  of  any  event  which  would  operate  as  a  revocation 
of  a  will  made  at  the  same  time,  but  M'hen  the  gift  has  been 
delivered  to  the  donee,  the  rights  of  a  bona  fide  purchaser 
from  the  donee  before  the  revocation,  shall  not  be  affected  by 
the  revocation.  [Amendment  approved  1874 ;  Code  Amdts. 
1873-74,  p.  226.] 

G-ift  inter  vivos  not  revocable:  See  ante,  §  1148. 

Legislation  §  1151.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  505),  and  then  ended  with  the  words  "a  will 
made  at  the  same  time." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  226. 

§  1152.  Effect  of  will  upon  g-ift.  A  gift  in  view  of  death 
is  not  affected  by  a  previous  will;  nor  by  a  subsequent  will, 
unless  it  expresses  an  intention  to  revoke  the  gift. 

Legislation  §  1152.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §506. 

§  1153.  When  treated  as  legacy.  A  gift  in  view  of  death 
must  be  treated  as  a  legacy,  so  far  as  relates  only  to  the  cred- 
itors of  the  giver. 

Legislation  §  1153.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  507. 

CHAPTER  IV. 

Recording  Transfers  of  Real  Property. 

Article  I.  What  may  be  Recorded.     §§1158-1165. 

II.  Mode  of  Recording.     §§  1169-1173. 

III.  Proof  and  Acknowledgment   of  Instruments.     §§  1180-1207. 

IV.  Effect  of  Recording  or  of  the   Want  Thereof.     §§  1213-1218. 

ARTICLE  I. 

What  may  be  Recorded. 

§  1158.  What  may  be  recorded. 

§  1159.  Judgments  may  be  recorded  without  acknowledgment. 

§  1160.  Letters  patent  may  be  recorded  without  acknowledgment. 

§  1161.  Acknowledgment  of  instrument  by  a  person;  by  a  corporation. 

§  1162.  Same. 

§  1163.  Certificate  of  residence  filed  with  recorder,  showing  where  ser- 
vice of  summons  may  be  made;  fee;  index. 

§  1164.  Transfers  in  trust,  etc. 

§  1165.  Fees  of  recorder  to  be  indorsed. 

§  1158.     What  may  be  recorded.     Any  instrument  or  judg- 
ment affecting  the  title  to  or  possession  of  real  property  may      '^ 
be  recorded  under  this  chapter. 

Recording  of  conveyance  by  one  whose  name  is  changed:  See  ante, 
§  1096. 
As  indicating  what  may  be  recorded:  Compare  with  §  1215. 
Place  of  recording:  See  post,  §  1169. 


§  1160  CIVIL  CODE.  416 

Execution  of  instrument  and  acknowledgment  to  entitle  to  be  re- 
corded:  See  post,  §§  1161,  1180  et  seq. 

Bona  fide  purchasers  without  notice,  whose  deeds  are  first  recorded, 
take  precedence  over  prior  grantee:  Ante,  §  1107;  post,  §  1214. 

Recorders.     What  to  he  recorded:  See  Pol.  Code,  §§  4131  et  seq. 

Instrument,  when  deemed  recorded:  See  post,  §  1170. 

Effect  of  recording,  or  want  thereof:   See  post,  §§  1213  et  seq. 

Legislation  §  1158.     Enacted  March  21,  1872. 

§  1159.  Judgments  may  be  recorded  without  acknowledg:- 
ment.  Judgments  affecting  the  title  to  or  possession  of  real 
property,  authenticated  by  the  certificate  of  the  clerk  of 
the  court  in  which  such  judgments  were  rendered  (and 
notices  of  location  of  mining  claims),  may  be  recorded 
without  acknowledgment,  certificate  of  acknowledgment,  or 
further  proof.  The  record  of  all  notices  of  location  of  min- 
ing claims  heretofore  made  in  the  proper  office  without  ac- 
knowledgment, or  certificate  of  acknowledgment,  or  other 
proof,  shall  have  the  same  force  and  effect  for  all  purposes  as 
if  the  same  had  been  duly  acknowledged,  or  proved  and  cer- 
tified as  required  by  law.  Affidavits  showing  work  or  post- 
ing of  notices  upon  mining  claims  may  also  be  recorded  in 
the  recorder's  office  of  the  county  where  such  mining 
claims  are  situated.  [Amendment  approved  1897 ;  Stats.  1897, 
p.  97.] 

Recorder  must  record  judgments:  See  Pol.  Code,  §  4134. 
Legislation  §  1159.  1.  Enacted  March  21,  1872,  and  then  read: 
"Judgments  affecting  the  title  to  or  possession  of  real  property,  au- 
thenticated by  the  certificate  of  the  clerk  of  the  court  in  which  such 
judgments  were  rendered,  may  be  recorded  without  acknowledgment 
or  further  proof." 

2.  Amended  by  Stats.  1897,  p.  97. 

§  1160.  Letters  patent  may  be  recorded  without  acknowl- 
edgment. Letters  patent  from  the  United  States,  or  from  the 
state  of  California,  executed  and  authenticated  pursuant  to 
existing  law,  may  be  recorded  without  acknowledgment  or 
further  proof,  and  where  letters  patent  have  been  lost,  or  are 
beyond  the  control  of  any  party  deraigning  title  therefrom, 
or  for  any  reason  they  remain  unrecorded,  any  person  claim- 
ing title  thereunder  may  cause  a  transcript  of  the  copy  of 
such  letters  patent  kept  by  the  government  issuing  the  same, 
duly  certified  by  the  officer  or  individual  having  lawful  custody 
of  such  copy,  to  be  recorded  in  lieu  of  the  original ;  and  such 
recorded  copy  shall  have,  prima  facie,  the  same  force  and  effect- 
as  the  original,  for  title  or  for  evidence,  until  said  original 
letters  patent  be  recorded.  [Amendment  approved  1878 ;  Code 
Amdts.  1877-78,  p.  85.] 

Legislation  §  1160.  1.  Enacted  March  21,  1872  (based  on  Convey- 
ance Act,   1864,  Stats.  1863-64,  p.   85,   §  18),  and   then  read:    "Letters 


417  WHAT  INSTRUMENTS    MAY   BE  RECORDED.  §  1163 

patent  from  the  United  States  or  from  the  state  of  California,  executed 
and  authenticated  pursuant  to  existing  law,  may  be  recorded  without 
acknowledgment  or  further  proof." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  85. 

§  1161.  Acknowledgment  of  instrument  by  a  person;  by  a 
corporation.  Before  an  instrument  can  he  recorded,  unless 
it  belongs  to  the  class  provided  for  in  either  section  eleven 
hundred  and  fifty-nine,  eleven  hundred  and  sixty,  twelve  hun- 
dred and  two,  or  twelve  hundred  and  three,  its  execution  must 
be  acknowledged  by  the  person  executing  it,  or  if  executed  by 
a  corporation,  by  its  president  or  secretary,  or  other  person 
executing  the  same  on  behalf  of  the  corporation,  or  proved  by 
a  subscribing  witness,  or  as  provided  in  sections  eleven  hun- 
dred and  ninety-eight  and  eleven  hundred  and  ninety-nine,  and 
the  acknowledgment  or  proof  certified  in  the  manner  pre- 
scribed by  article  three  of  this  chapter.  [Amendment  ap- 
proved 1905 ;  Stats.  1905,  p.  602.] 

Legislation  §  1161.  1.  Enacted  Marcli  21,  1872,  and  then  read:  "Be- 
fore an  instrument  may  be  recorded,  unless  it  belongs  to  the  class  pro- 
vided for  in  either  sections  1159,  1160,  1202,  or  1203,  its  execution 
_  must  be  acknowledged  by  the  person  executing  it,  or  if  executed  by 
a  corporation,  by  its  president  or  secretary,  or  proved  by  a  subscribing 
witness,  and  the  acknowledgment  or  proof  certified  in  the  manner  pre- 
scribed by  article  III  of  this  chapter." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  226,  (1)  in  first  line,  chan- 
ging "may"  to  "can"  before  "be  recorded";  (2)  after  "or  proved  by  a 
subscribing  witness,"  adding  "or  as  provided  in  sections  eleven  hun- 
dred and  ninety-eight  and  eleven  hundred  and  ninety-nine." 

3.  Amendment  by  Stats.  1901,  p.  396;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  602,  adding,  after  "by  its  president 
or  secretary,"  the  words  "or  other  person  executing  the  same  on  behalf 
of  the  corporation";  the  code  commissioner  saying,  "The  reason  for 
the  amendment  is  that  an  instrument  may  be  executed  on  behalf  of  a 
corporation  by  an  officer  or  person  other  than  its  president  or  secre- 
tary, when  authorized  by  its  board  of  directors.  The  section  as  it 
heretofore  stood  appeared  to  sanction  its  execution  by  those  officers 
only." 

§  1162.  Same.  An  instrument  proved  and  certified  pur- 
suant to  sections  eleven  hundred  and  ninety-eight  and  eleven 
hundred  and  ninety-nine  may  be  recorded  in  the  proper  office 
if  the  original  is  at  the  same  time  deposited  therein  to  remain 
for  public  inspection,  but  not  otherwise. 
Legislation  §  1162.     Enacted  March  21,  1872. 

§  1163.  Certificate  of  residence  filed  with  recorder,  showings 
where  service  of  summons  may  be  made ;  fee ;  index.  Any  per- 
son, firm,  or  corporation,  may  record  in  the  office  of  the  county 
recorder  of  any  county  in  the  state  of  California  a  certificate 

Oiv.  Code — 27 


§  1169  CIVIL  CODE.  418 

setting  forth  the  name  of  said  person,  firm,  or  corporation,  and 
the  place  of  residence  of  said  person,  firm,  or  corporation,  and 
the  place  where  service  of  summons  may  be  made  upon  said 
person,  firm,  or  corporation.  The  said  certificate  must  be 
verified  by  the  oath  of  the  person,  or  of  a  member  of  the  firm, 
or  officer  of  the  corporation  making  the  same,  and  may  be 
recorded  Avithout  acknowledgment.  Such  person,  firm  or  cor- 
poration may  upon  a  change  of  place  of  residence  file  affidavit  as 
herein  provided  and  such  last  affidavit  filed  shall  be  the  place 
designated  as  the  place  where  service  of  summons  may  be  made 
as  herein  provided.  The  fee  of  the  recorder  for  recording  said 
certificate  shall  be  fifty  cents;  and  the  recorder  shall  keep  in 
his  office  an  index  entitled  ''Index  to  Certificates  of  Eesi- 
dence,"  in  which  must  be  entered  the  name  of  the  person, 
firm,  or  corporation  in  Avhose  behalf  said  certificate  was  filed. 

Designation  by  foreign  corporation  of  person  upon  whom  summons 
may  be  served:  See  ante,  §§  405,  406. 

Legislation  §  1163,  Added  by  Stats.  1905,  p.  139.  The  original  code 
§  1163  was  repealed  by  Code  Amdts.  1873-74,  p.  226,  and,  as  enacted 
in  1872,  read:  "An  instrument  executed  by  an  attorney  in  fact  must 
not  be  recorded  until  the  power  of  attorney  authorizing  the  execution 
of  the  instrument  is  filed  for  record  in  the  same  office." 

§  1164.  Transfers  in  trust,  etc.  Transfers  of  property  in 
trust  for  the  benefit  of  creditors,  and  transfers  or  liens  on  prop- 
erty by  M'ay  of  mortgage,  are  required  to  be  recorded  in  the 
cases  specified  in  the  titles  on  the  special  relation  of  debtor 
and  creditor,  and  the  chapter  on  mortgages,  respectively. 

Special  relations  of  debtor  and  creditor:  See  post,  §§  3429  et  seq. 

Mortgages:  See  §§2920  et  seq. 

Legislation  §1164.     Enacted  March  21,  1872. 

§  1165.  Fees  of  recorder  to  be  indorsed.  The  recorder  must, 
in  all  cases,  indorse  the  amount  of  his  fee  for  recordation  on 
the  instrument  recorded. 

Recorders.     Fees  to  be  indorsed:  Pol.  Code,  §  4137. 
Legislation  §  1165.     Added  by  Code  Amdts.  1873-74,  p.  274. 

ARTICLE  II. 
Mode  of  Recording. 
§  1169.     In  what  office. 

§  1170.     Instrument,  when  deemed  recorded. 
§  1171.     Books  of  record. 
§  1172.     Duties  of  recorder. 
§  1173.     Transfer  of  vessels. 

§  1169.     In  what  office.     Instruments  entitled  to  be  recorded 
must  be  recorded  by  tlie   county  recorder  of  the   county  in 
which  the  real  property  affected  thereby  is  situated. 
Legislation  §  1169.     Enacted  March  21,  1872. 


419  PROOF   AND   ACKNOWLEDGMENT    OF   INSTRUMENTS.       §  1173 

§  1170.  Instrument,  when  deemed  recorded.  An  instrument 
is  deemed  to  be  recorded  Avhen,  being  duly  acknowledged  or 
proved  and  certified,  it  is  deposited  in  the  recorder's  office, 
with  the  proper  officer,  for  record.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  226.] 

Recording:  See,  for  general  consideration  of  the  subject,  ante,  §  1158. 
Legislation  §  1170.  1.  Enacted  March  21,  1872,  and  tlien  read:  "An 
instrument  is  recorded  when  duly  acknowledged  or  proved,  certified, 
and  deposited  in  the  recorder's  office  with  the  proper  officer,  and  by 
him  filed  for  record,  by  noting  thereon  such  filing,  with  the  minute, 
hour,  day,  and  year  thereof,  and  subscribing  the  same." 
2.  Amended   by   Code   Amdts.    1873-74,    p.   226. 

§  1171.     Books  of  record.     Grants,  absolute  in  terms,  are  to 
be  recorded  in  one  set  of  books,  and  mortgages  in  another. 
Legislation  §  1171.     Enacted  March  21,  1872. 

§  1172.  Duties  of  recorder.  The  duties  of  county  recorders, 
in  respect  to  recording  instruments,  are  prescribed  by  the  Pol- 
itical Code. 

Recorders:  See  Pol.  Code,  §§  4235  et  seq. 
Legislation  §  1172.     Enacted  March  21,  1872. 

§  1173.  Transfer  of  vessels.  The  mode  of  recording  trans- 
fers of  ships  registered  under  the  laws  of  the  United  States  is 
regulated  by  acts  of  Congress. 

Transfer  of  vessels:  See  U.  S.  Rev.  Stats.,  §§4131  et  seq. 
Legislation  §  1173.     Enacted  March  21,  1872. 

ARTICLE  III. 

Proof  and  Acknowledgment  of  Instruments. 

§  1180.  By  whom  acknowledgments  may  be  taken  in  this  state. 

§  1181.  By  whom     acknowledgments  may  be  taken. 

§  1182.  By  whom  taken  without  the  state. 

§  1183.  Proof  of,  outside  United  States. 

§  1184.  Deputy  can  take  acknowledgment. 

§  1185.  Requisites  for  acknowledgment. 

§  1186.  Acknowledgment  by  married  women.     [Repealed.] 

§  1187.  Conveyance  by  married  woman. 

§  1188.  Officer  must  indorse  certificate. 

§  1189.  General  form  of  certificate.     Taken  outside  of  state. 

§  1190.  Form  of  acknowledgment  by  corporation. 

§  1191.  Form    of    certificate    of    acknowledgment    by    married    women. 

[Repealed.] 

§  1192.  Form  of  certificate  of  acknowledgment  by  attorney  in  fact. 

§  1193.  Officers  must  affix  their  signatures. 

§  1194.  Certificate  of  authority  of  justices  in  certain  cases. 

§  1195,  Proof  of  execution,  how  made. 

§  1196.  Witness  must  be  personally  known  to  officer. 

§  1197.  Witness  must  prove,  what. 

§  1198.  Handwriting  may  be  proved,  when. 

§  1199.  Evidence  of  handwriting  must  prove,  what. 


§  1181  CIVIL  CODE.  420 

§  1200.     Certificate  of  proof. 

§  1201.     OflScers  authorized  to  do  certain  things. 

§  1202.  When  instrument  is  improperly  certified,  party  may  have  ac- 
tion to  correct  error. 

§  1203.  In  certain  cases,  parties  interested  may  obtain  judgment  of 
proof  of  an  instrument. 

§  1204.     Effect  of  judgment  in  such  action. 

§  1205.  Conveyances  heretofore  made  to  be  governed  by  then  existing 
laws. 

§  1206.     Recording  to  be  governed  by  then  existing  laws. 

§  1207.     Defectively  acknowledged  deed,  etc.,  validated. 

§  1180.  By  whom  acknowledgments  may  be  taken  in  this 
state.  The  proof  or  acknowledgment  of  an  instrument  may  be 
made  at  any  place  within  this  state  before  a  justice  or  clerk  of 
the  supreme  court,  or  judge  of  a  superior  court.  [Amendment 
approved  1880;. Code  Amdts.  1880,  p.  2.] 

Act  legalizing  defective  acknowledgments:  See  post.  Appendix,  tit. 
"Acknowledgments."     See    also,    post,  §  1207. 

Legislation  §  1180.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code.  §  516;  Conveyance  Act  ISoO,  Stats.  1850,  p.  249. 
§4.) 

2.  Amended  by  Code  Amdts.  1880,  p.  2,  adding  "or  judge  of  a  su- 
perior court"  at  end  of  section. 

§  1181.     By  whom  acknowledgments  may  be  taken.     The 

proof  or  acknowledgment  of  an  instrument  may  be  made  in 
this  state,  within  the  city,  county,  city  and  county,  township 
or  district  for  which  the  officer  was  elected,  or  appointed,  be- 
fore either : 

1.  A  clerk  of  a  court  of  record ; 

2.  A  county  recorder ; 

3.  A  court  commissioner; 

4.  A  notary  public ; 

5.  A  justice  of  the  peace.  [Amendment  approved  1911 ; 
Stats.  1911,  p.  429.] 

Acknowledgment  by  deputy:   See  post,  §  1184. 

Legislation  §  1181.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  517;  Conveyance  Act  1850,  Stats.  1850,  p.  249, 
§  4 ;  Hopkins  v.  Delaney ,  8  Cal.  85 ;  Ingoldsby  v.  Juan,  12  Cal.  564 ;  Muller 
V.  Boggs,  25  Cal.  175;  Kimball  v.  Semple,  25  Cal.  440),  and  then  read: 
"The  proof  or  acknowledgment  of  an  instrument  may  be  made  in  this 
state  within  the  city,  county,  or  district  for  which  the  offieer  was 
elected  or  appointed,  before  either:  1.  A  judge  or  clerk  of  a  court  of 
record;  or,  2.  A  mayor  or  recorder  of  a  city;  or,  3.  A  court  commis- 
sioner; or,  4.  A  county  recorder;  or,  5.  A  notary  public;  or,  6.  A  justice 
of  the  peace." 

2.  Amended  by  Code  Amdts.  1880,  p.  2,  to  read:  "The  proof  or  ac- 
knowledgment of  an  instrument  may  be  made  in  this  state  within  the 
city,  city  and  county,  county,  or  district  for  which  the  offieer  was 
elected  or  appointed  before  either:  1.  A  clerk  of  a  court  of  record; 
or,  2.  A  county  recorder;  or,  3.  A  notary  public;  or,  4.  A  justice  of 
the  peace." 


421  PROOF  AND   ACKNOWLEDGMENT    OF   INSTRUMENTS.       §  1183 

3.  Amended  by  Stats.  1891,  p.  214,  to  read:  "The  proof  or  aelcnowl- 
edgment  of  an  instrument  may  be  made  in  this  state,  within  the  city, 
city  and  county,  county,  or  district  for  which  the  officer  was  elected 
or  appointed,  before  either:  1.  A  clerk  of  a  court  of  record;  or,  2.  A 
county  recorder;  or,  .3.  A  court  commissioner;  or,  4.  A  notary  public; 
or,  5.  A  justice  of  the  peace." 

4.  Amendment  by  Stats.  1901,  p.  396;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  603,  to  read:  "The  proof  or  acknowl- 
edgment of  an  instrument  may  be  made  in  this  state,  within  the  city, 
county,  city  and  county,  or  township  for  which  the  officer  was  elected 
or  appointed,  before  either:  1.  A  clerk  of  a  court  of  record;  2.  A  county 
recorder;  3.  A  court  commissioner;  4.  A  notary  public;  5.  A  justice  of 
the  peace." 

6.  Amended  by  Stats.  1911,  p.  429. 

§  1182.  By  whom  taken  without  the  state.  The  proof  or 
acknowledgment  of  an  instrnment  may  be  made  Avithout  this 
state,  but  within  the  United  States,  and  within  the  jurisdiction 
of  the  officer,  before  either ; 

1.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  the 
United  States ;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  any 
state;  or, 

3.  A  commissioner  appointed  by  the  governor  of  this  state 
for  that  purpose;  or, 

4.  A  notary  public ;  or, 

5.  Any  other  officer  of  the  state  where  the  acknowledgment 
is  made  authorized  by  its  laws  to  take  such  proof  or  acknowl- 
edgment. 

Legislation  §  1182.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §518;  Conveyance  Act  1850,  Stats.  1850,  p.  249,  §4; 
Lord  V.  Sherman,  2  Cal.  498. 

§1183.     Proof    of,    outside    United    States.     The  proof    or 

acknowledgment  of  an  instrument  may  be  made  without  the 
United  States,  before  either: 

One.  A  minister,  commissioner,  or  charge  d'affaires  of  the 
United  States,  resident  and  accredited  in  the  country  where  the 
proof  or  acknowledgment  is  made ;  or. 

Two.  A  consul,  vice-consul,  or  consular  agent  of  the 
United  States,  resident  in  the  country  where  the  proof  or 
acknowledgment  is  made ;  or, 

Three.  A  judge  of  a  court  of  record  of  the  country  where 
the  proof  or  acknowledgment  is  made ;  or 

Four.  Commissioners  appointed  for  su(ih  purposes  by  the 
governor  of  the  state,  pursuant  to  special  statutes ;  or, 

Five.  A  notary  public.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  227.] 


§  1187  CIVIL  CODE.  422 

Legislation  §  1183.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  519;  Conveyance  Act  1850,  Stats.  1850,  p.  249, 
§  4;  Mott  V.  Smith,  16  Cal.  533;  McMinn  v.  O'Connor,  27  Cal.  238. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  227,  in  subd.  2,  inserting 
"consular  agent." 

§  1184.  Deputy  can  take  acknowledgment.  When  any  of 
the  officers  mentioned  in  the  fonr  preceding  sections  are  au- 
thorized by  la^v  to  appoint  a  deputy,  the  acknowledgment  or 
proof  may  be  taken  by  such  deputy,  in  the  name  of  his  prin- 
cipal. 

Legislation  §  1184.     Enacted  March  21,  1872;   based  on   Conveyance 

Act  1862,  Stats.  1862,  p.  578,  §  4;  Muller  v.  Boggs,  25  Cal.  175. 

§  1185.  Requisites  for  acknowledgment.  The  acknowledg- 
ment of  an  instrument  must  not  be  taken,  unless  the  officer 
taking  it  knows  or  has  satisfactory  evidence,  on  the  oath  or 
affirmation  of  a  credible  witness,  that  the  person  making  such 
acknowledgment  is  the  individual  who  is  described  in  and  who 
executed  the  instrument ;  or,  if  executed  by  a  corporation,  that 
the  person  making  such  acknowledgment  is  the  president  or 
secretary  of  such  corporation,  or  other  person  who  executed 
it  on  its  behalf.  [Amendment  approved  1905 ;  Stats.  1905, 
p.  603.] 

Acknowledgments  of  married  women:   See  post,  §  1187. 

Official  character  of  certifying  officer  should  appear  from  certifi- 
cate: Post,  §1188. 

Authentication  of  signature:  See  post,  §  1193. 

Correcting  certificate:   See  post,  §  1202. 

Legislation  §  1185.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  520;  Convevauce  Act  1850.  Stats.  1850,  p.  249, 
§  6;  Kelsey  v.  Duulap,  7  Cal.  160;  Wolf  v.  Fogarty,    6  Cal.  224. 

2.  Amendinent  by  Stats.  1901,  p.  396;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  603,  adding  "or  other  person  who  exe- 
cuted it  on  its  behalf,"  at  end  of  section. 

§  1186.     Acknowledgment  by  married  women.     [Repealed 

1891;  Stats.  1891,  p.  137.] 

Acknowledgments  by  married  women:  See  ante,  §  1093;  post,  §  1187. 
Legislation  §  1186.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Stats.  1891,  p.  137. 

§  1187.  Conveyance  by  married  woman.  A  conveyance  by 
a  married  woman  has  the  same  effect  as  if  she  were  unmarried, 
and  may  be  acknowledged  in  the  same  manner.  [Amendment 
approved  1891;  Stats.  1891,  p.  137.] 

Conveyances  and'  acknowledgments  by  married  women:  See  ante, 
§  1093. 

Legislation  §  1187.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Stats.  1891,  p.  137,  omitting  from  end  of  section, 
"except  as  mentioned  in  the  last  section;  but  such  conveyance  has  no 
validity  until  so  acknowledged." 


423  PROOF   AND   ACKNOWLEDGMENT    OF   INSTRUMENTS.       §  1190 

§  1188.  OflEicer  must  indorse  certificate.  An  officer  taking 
the  acknowledgment  of  an  instrument  must  indorse  thereon  or 
attach  thereto  a  certificate  substantially  in  the  forms  herein- 
after prescribed.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  227.] 

Form  of  certificate:  See  post,  §§  1189-1191. 
Legislation  §  1188.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  227,  inserting  "or  attach 
thereto"  after  "must  indorse  thereon." 

§  1189.     General  form  of  certificate.     Taken  outside  of  state. 

The  certificate  of  acknowledgment,  unless  it  is  otherwise  in 
this  article  provided,  must  be  substantially  in  the  following 

form :  "State  of  ■ — ■ — ,  county  of ,  ss.     On  this day  of 

,  in  the  year  • ,  before  me  (here  insert  name  and  quality 

of  the  officer),  personally  appeared  ,  known  to  me   (or 

proved  to  me  on  the  oath  of )  to  be  the  person  whose  name 

is  subscribed  to  the  within  instrument,  and  acknowledged  that 
he  (she  or  they)  executed  the  same."  Provided,  hoAvever,  that 
any  acknoAvledgment  taken  Avithout  this  state  in  accordance 
Avith  the  laAA's  of  the  place  Avhere  the  acknoAvledgment  is  made, 
shall  be  sufficient  in  this  state ;  and  provided  further,  that  the 
certificate  of  the  clerk  of  a  court  of  record  of  the  county  or 
district  Avhere  such  acknoAAdedgment  is  taken,  that  the  officer 
certifying  to  the  same  is  authorized  by  laAv  so  to  do,  and  that 
the  signature  of  the  said  officer  to  such  certificate  is  his  true  and 
genuine  signature,  and  that  such  acknoAAdedgment  is  taken 
in  accordance  Avith  the  laAvs  of  the  place  Avhere  the  same  is 
made,  shall  be  prima  facie  evidence  of  the  facts  stated  in  the 
certificate  of  said  clerk.  [Amendment  approved  1897;  Stats. 
1897,  p.  43.] 

Legislation  §  1189.  1.  Enacted  March  21,  1872,  and  differed  from 
amendments  of  1891  and  1897,  in  that  in  sentence  beginning  "On  this," 
(1)  it  had  (a)  the  word  "the"  after  "(here  insert,"  and  (b)  "to  me" 
after  "acknowledged";  (2)  but  did  not  have  the  word  "she"  before  "or 
they),"  the  section  then  ending  with  the  words  "executed  the  same." 

2.  Amended  by  Stats.  1891,  p.  137,  and  differed  from  the  amendment 
of  1897,  in  that  it  did  not  contain  the  two  provisos. 

3.  Amended  by  Stats.  1897,  p.  43,  adding  the  two  provisos. 

4.  Amendment  by  Stats.  1901,  p.  397;  unconstitutional.  See  note, 
§  4,  ante. 

§  1190.  Form  of  acknowledgment  by  corporation.  The  cer- 
tificate of  acknoAvledgment  of  an  instrument  executed  by  a 
corporation  must  be  substantially  in  the  following  form : 

State  of ,  (  gg_ 

County  of ,       ^ 

Qj^  this day  of ,  in  the  year ,  before  me  (here 

insert  the  name  and  quality  of  the  officer),  personally  appeared 


§  1193                                    CIVIL  CODE.  424 

-,  known  to  me  (or  proved  to  me  on  the  oath  of )  to  be 


the  president  (or  the  secretary)  of  the  corporation  that  exe- 
cuted the  within  instrnment  (where,  however,  the  instrument 
is  executed  in  behalf  of  the  corporation  by  some  one  other 
than  the  president  or  secretary)  insert:  known  to  me  (or 
proved  to  me  on  the  oath  of )  to  be  the  person  who  exe- 
cuted the  within  instrument  on  behalf  of  the  corporation 
therein  named  and  acknowledged  to  me  that  such  corpora- 
tion executed  the  same.  [Amendment  approved  1905 ;  Stats. 
1905,  p.  603.] 

Legislation  §  1190.  1.  Enacted  March  21,  1872,  and  differed  from 
the  amendment  of  1905,  in  that  the  section  did  not  contain  the  pro- 
vision beginning  "(where,  however,"  and  ending  "therein  named)." 

2.  Amendment  by  Stats.  1901,  p.  397;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  603;  the  code  commissioner  making 
a  cross-reference  to  his  note  to  §  1161;  q.  v.,  ante,  Legislation  §  1161. 

§  1191.     Form  of  certificate  of  acknow^ledgment  by  married 
women.      [Repealed  1891;  Stats.  1891,  p.  137.] 
Legislation  §  1191.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Stats.  1891,  p.  137. 

§  1192.     Form  of  certificate  of  acknov^ledgment  by  attorney 
in  fact.     The  certificate  of  acknowledgment  by  an  attorney  in 
fact,  must  be-  substantially  in  the  following  form  : 
State  of 


County  of ,  i 

On  this day ,  in  the  year ,  before  me  [here  in- 
sert the  name  and  quality  of  the  officer],  personally  appeared 

,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to  be 

the  person  whose  name  is  subscribed  to  the  within  instrument 

as  the  attorney  in  fact  of ,  and  acknowledged  to  me  that 

he  subscribed  the  name  of thereto  as  principal,  and  his 

own  name  as  attorney  in  fact. 

Legislation!  1192.     Enacted  March  21,  1872. 

§  1193.  Officers  must  affix  their  signatures.  Officers  taking 
and  certifying  acknowledgments,  or  proof  of  instruments  for 
record,  must  authenticate  their  certificates  by  affixing  thereto 
their  signatures,  followed  by  the  names  of  their  offices ;  also, 
their  seals  of  office,  if  by  the  laws  of  the  state  or  country  where 
the  acknowledgment  or  proof  is  taken,  or  by  authority  of 
which  they  are  acting,  they  are  required  to  have  official  seals. 

Legislation  §  1193.  1.  Enacted  March  21,  1872;  based  on  Hastings 
V.  Vaughan,  o  Cal.  315;  Mott  v.  Smith,  16  Cal.  533;  Ingoldsbv  v.  Juan, 
12  Cal.  564;  Touchard  v.  Crow,  20  Cal.  150. 

2.  Amendment  by  Stats.  1901,  p.  397;  unconstitutional.  See  note, 
§  4,  ante. 


425  PROOF   AKD   ACKNOWLEDGMENT    OP    INSTRUMENTS.       §  1198 

§  1194.     Certificate  of  authority  of  justices  in  certain  cases. 

The  certificate  of  proof  or  acknowledgment,  if  made  before  a 
justice  of  the  peace,  when  used  in  any  county  other  than  that 
in  which  he  resides,  must  be  accompanied  by  a  certificate 
under  the  hand  and  seal  of  the  clerk  of  the  county  in  which 
the  justice  resides,  setting  forth  that  such  justice,  at  the  time 
of  taking  such  proof  or  acknowledgment,  was  authorized  to 
take  the  same,  and  that  the  clerk  is  acquainted  with  his  hand- 
writing, and  believes  that  the  signature  to  the  original  cer- 
tificate is  genuine. 

Legislation  §  1194.     Enacted  March  21,  1872. 

§  1195.  Proof  of  execution,  how  made.  Proof  of  the  execu- 
tion of  an  instrument,  when  not  acknowledged,  may  be  made 
either : 

1.  By  the  party  executing  it,  or  either  of  them ;  or, 

2.  By  a  subscribing  witness ;  or, 

3.  By  other  witnesses,  in  cases  mentioned  in-  section  eleven 

hundred  and  ninety-eight. 

Legislation  §  1195.     Enacted  Marcli  21,  1872;   based  on   Conveyance 
Act  1850,  Stats.  1850,  p.  249,  §  10  (modified). 

§  1196.    Witness  must  be  personally  known  to  officer.     If  by 

a  subscribing  witness,  such  witness  must  be  personally  known 
to  the  officer  taking  the  proof  to  be  the  person  whose  name  is 
subscribed  to  the  instrument  as  a  Avitness,  or  must  be  proved  to 
be  such  by  the  oath  of  a  credible  witness. 

Legislation  §  1196.     Enacted  March  21,  1872;   based  on   Conveyance 
Act  1850,  Stats.  1850,  p.  249,  §  11   (modified). 

§1197.  Witness  must  prove,  what.  The  subscribing  Avit- 
ness  must  prove  that  the  person  Avhose  name  is  subscribed  to 
the  instrument  as  a  party  is  the  person  described  in  it,  and  that 
such  person  executed  it,  and  that 'the  witness  subscribed  his 
name  thereto  as  a  Avitness. 

Legislation  §  1197.     Enacted  March  21,   1872;   based   on   Conveyance 

Act  1850,  Stats.  1850,  p.  249,  §  12  (modified). 

§  1198.  Handwriting'  may  be  proved,  when.  The  execution 
of  an  instrument  may  be  cstal)lished  by  proof  of  the  handAvrit- 
ing  of  the  party  and  of  a  subscribing  Avitness,  if  there  is  one, 
in  the  folloAving  cases : 

1.  When  the  parties  and  all  the  subscribing  Avitnesses  are 
dead;  or, 

2.  When  the  parties  and  all  the  subscribing  Avitnesses  are 
non-residents  of  the  state ;  or, 

3.  When  the  place  of  their  residence  is  unknown  to  the  party 
desiring  the  proof,  and  cannot  be  ascertained  by  the  exercise 
of  due  diligence;  or, 


§  1201  CIVIL  CODE.  426 

4.  When  the  subscribing  witness  conceals  himself,  or  cannot 
be  found  by  the  officer  by  the  exercise  of  due  diligence  in  at- 
tempting to  serve  the  subpoena  or  attachment ;  or, 

5.  In  case  of  the  continued  failure  or  refusal  of  the  witness 
to  testify,  for  the  space  of  one  hour,  after  his  appearance. 

Legislation  §  1198.  Enacted  March  21,  1872;  based  on  Stats.  1851, 
p.  521;  Conveyance  Act  1850,  Stats.  1850,  p.  249,  §  14  (modified); 
Landers  v.  Bolton,  26  Cal.  393. 

§  1199.     Evidence   of  handwriting'  must  prove,   v^hat.    The 

evidence  taken  under  the  preceding  section  must  satisfactorily 
prove  to  the  officer  the  following  facts : 

One.  The  existence  of  one  or  more  of  the  conditions  men- 
tioned therein;  and, 

Two.  That  the  witness  testifying  knew  the  person  whose 
name  purports  to  be  subscribed  to  the  instrument  as  a  party, 
and  is  well  acquainted  with  his  signature,  and  that  it  is  gen- 
uine ;  and, 

Three.  That  the  witness  testifying  personally  knew  the  per- 
son who,  subscribed  the  instrument  as  a  witness,  and  is  well 
acquainted  with  his  signature,  and  that  it  is  genuine;  and, 

Four.  The  place  of  residence  of  the  witness.  [Amendment 
approved  1874 ;  Code  Amdts.  1873-74,  p.  227.] 

Proving  handwriting.  Generally:  See  Code  Civ.  Proc,  §§  1315, 
1943-1945. 

Legislation  §  1199.  1.  Enacted  March  21,  1872  (based  on  Convey- 
ance Act  1850,  Stats.  1850,  p.  249,  §  15,  modified),  the  section  then  eon- 
tainiiiu;  a  fifth  subdivision,  reading,  "5.  That  the  witness  testifying 
knew  the  signature  of  the  person  who  executed  the  instrument,  and  that 
his  signature  is  genuine." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  227,  omitting  the  fifth  sub- 
division. 

§  1200.  Certificate  of  proof.  An  officer  taking  proof  of  the 
execution  of  any  instrument  must,  in  his  certificate  indorsed 
thereon  or  attached  thereto,  set  forth  all  the  matters  required 
by  law  to  be  done  or  known  by  him,  or  proved  before  him  on 
the  proceeding,  together  with  the  names  of  all  the  witnesses 
examined  before  him,  their  places  of  residence  respectively,  and 
the  substance  of  their  testimony. 

Legislation  §  1200.     Enacted  March  21,  1872. 

§  1201.  Officers  authorized  to  do  certain  thing's.  Officers 
authorized  to  take  the  proof  of  instruments  are  authorized  in 
such  proceedings : 

1.  To  administer  oaths  or  affirmations,  as  prescribed  in  sec- 
tion two  thousand  and  ninety-three.  Code  of  Civil  Procedure; 

2.  To  employ  and  swear  interpreters ; 

3.  To  issue  subpocna.s.  as  prescribed  in  section  nineteen  hun- 
dred and  eighty-six.  Code  of  Civil  Procedure ; 


427  PROOF   AND   ACKNOWLEDGMENT    OP   INSTRUMENTS.       §  1205 

4.  To  punish  for  contempt,  as  prescribed  in  sections  nineteen 
hundred  and  ninety-one,  nineteen  hundred  and  ninety-three, 
nineteen  hundred  and  ninety-four,  Code  of  Civil  Procedure. 

The  civil  damages  and  forfeiture  to  the  party  aggrieved  are 
prescribed  in  section  nineteen  hundred  and  ninety-two,  Code  of 
Civil  Procedure. 

Civil  damages  and  forfeiture  to  party  aggrieved,  prescribed:  Code 
Civ.  Proc,  §  1992. 

Legislation  §  1201.  Enacted  March  21,  1872.  The  code  commission- 
ers say:  "The  sections  above  cited  need  to  be  examined,  to  make  sure 
that  they  are  ample  enough  for  the  purpose.  The  remedies  in  that  code 
and  in  the  Conveyance  Act  are  substantially  duplicate." 

§  1202.     When  instrument  is  improperly  certified,  party  may 
have  action  to  correct  error.     When  the  acknowledgment  or 
proof  of  the  execution  of  an  instrument  is  properly  made,  but 
defectively  certified,  any  party  interested  may  have  an  action 
in  the  superior  court  to  obtain  a  judgment  correcting  the  cer- 
tificate.    [Amendment  approved  1905 ;  Stats.  1905,  p.  604.] 
Legislation  §  1202.     1.  Enacted   March   21,   1872.     The   code  commis- 
sioners say:   "This  section  is  a  substitute  for  special  proceedings  be- 
fore the  county  judge,  provided  for  in  seven  sections  of  the  act  of  I860 
(Stats.  1860,  p.  177)." 

2.  Amendment  by  Stats.  1901,  p.  397;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  604,  changing  "district  court"  to 
"superior  court." 

§  1203.  In  certain  cases,  parties  interested  may  obtain  judg- 
ment of  proof  of  an  instrument.  Any  person  interested  under 
an  instrument  entitled  to  be  proved  for  record,  may  institute 
an  action  in  the  superior  court  against  the  proper  parties  to 
obtain  a  judgment  proving  such  instrument.  [Amendment 
approved  1905;  Stats.  1905,  p.  604.] 

Legislation  §  1203.  1.  Enacted  March  21,  1872.  The  code  commis- 
sioners say:  "This  is  an  ample  concurrent  remedy,  which  would  be  used 
only  in  cases  where  it  is  difficult  to  make  the  proof  under  the  strict 
statutory  mode." 

2.  Amendment  by  Stats.  1901,  p.  398;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  604,  changing  "district  court"  to 
"superior  court." 

§  1204.  Effect  of  judgment  in  such  action.  A  certified  copy 
of  the  judgment  in  a  proceeding  instituted  under  either  of  the 
two  preceding  sections,  showing  the  proof  of  the  instrument, 
and  attached  thereto,  entitles  such  instrument  to  record,  with 
like  effect  as  if  acknowledged. 

Legislation  §  1204.     Enacted  March  21,  1872. 

§  1205.  Conveyances  heretofore  made  to  be  governed  by 
then  existing  laws.     The  legality  of  the  execution,  acknowledg- 


§  1207  CIVIL  CODE. 


428 


ment,  proof,  form,  or  record  of  any  conveyance  or  other  instru- 
ment made  before  this  code  goes  into  effect,  executed,  acknowl- 
edged, proved,  or  recorded  is  not  affected  by  anything  con- 
tained in  this  chapter,  but  depends  for  its  validity  and  legality 
upon  the  laws  in  force  when  the  act  was  performed. 

Legislation  §  1205.     Enacted  March.  21,  1872;   based  on  Conveyance 
Act  1850,  Stats.  1850,  p.  249,  §  42. 

§  1206.     Recording-  to  be  governed  by  then  existing  laws. 

All  conveyances  of  real  property  made  before  this  code  goes 
into  effect,  and  acknowledged  or  proved  according  to  the  laws 
in  force  at  the  time  of  such  making  and  acknowledgment  or 
proof,  have  the  same  force  as  evidence,  and  may  be  recorded 
in  the  same  manner  and  with  the  like  effect,  as  conveyances 
executed  and  acknoAvledged  in  pursuance  of  this  chapter. 

Acts   curing  defective   acknowledgments:    See   post,   Appendix,   tit. 

"Acknowledgments." 

Legislation  §  1206.     Enacted  March.  21,   1872;   based  on   Conveyance 

Act,  §  41. 

§  1207.    Defectively    acknow^ledged    deed,    etc.,    validated. 

Any  instrument  affecting  the  title  to  real  property,  including 
any  instrument  executed  by  a  married  woman  on  or  after  the 
first  day  of  July,  1891,  which  was,  previous  to  the  first  day  of 
January,  one  thousand  nine  hundred  and  fifteen,  copied  into 
the  proper  book  of  record,  kept  in  the  office  of  any  county 
recorder,  imparts,  after  that  date,  notice  of  its  contents  to  sub- 
sequent purchasers  and  encumbrancers,  notwithstanding  any 
defect,  omission,  or  informality  in  the  execution  of  the  instru- 
ment, or  in  the  certificate  of  acknowledgment  thereof,  or  the 
absence  of  any  such  certificate ;  but  nothing  herein  affects  the 
rights  of  purchasers  or  encumbrancers  previous  to  the  taking 
effect  of  this  act.  Duly  certified  copies  of  the  record  of  any 
such  instrument  may  be  read  in  evidence  with  like  effect  as 
copies  of  an  instrument  duly  acknowledged  and  recorded; 
provided,  when  such  copying  in  the  proper  book  of  record  oc- 
curred within  fifteen  years  prior  to  the  trial  of  the  action,  it 
is  shown  first  that  the  original  instrument  was  genuine. 
[Amendment  approved  1915;  Stats.  1915,  p.  1211.] 

Legislation  §  1207.  1.  Added  by  Code  Amdts.  1873-74,  p.  228.  and 
then  read:  "Any  instrument  affecting  real  property,  which  was.  pre- 
vious to  the  thirtieth  day  of  January,  one  thousand  eight  hundred  and 
seventy-three,  copied  into  the  proper  book  of  record,  kept  in  the  office 
of  any  county  recorder,  shall  be  deemed  to  impart,  after  that  date, 
notice  of  its  contents  to  subsequent  purchasers  and  encumbrancers, 
notwithstanding  any  defect,  omission,  or  informality  in  the  execution 
of  the  instrument,  or  in  the  certificate  of  acknowledgment  thereof,  or 
the  absence  of  any  such  certificate;  but  nothing  herein  shall  be  deemed 
to  affect  the  rights  of  purchasers  or  encumbrancers  previous  to  that 
date.     Duly  certified  copies  of  the  record  of  any  such  instrument  may 


m.(l  1207.     Defectively    Acknowledged    Deed,    Etc.,    Validated.     Ar 

instrument  affecting  the  title  to  real  property,  including 
instrument  executed  by  a  married  woman  on  or  after  the  fir, 
day  of  July,  1891,  which  was,  previous  to  the  first  day  of  Jar 
uary,  [1919,1  copied  into  the  proper  book  of  record,  Itept  in  tY 
office  of  any  county  recorder,  imparts,  after  that  date,  notk 
of  its  contents  to  subsequent  purchasers  and  encumbrancer 
notwithstanding  any  defect,  omission,  or  informality  in  the  exe 
cution  of  the  instrument,  or  in  the  certificate  of  acknowledgmer 
thereof,  or  the  absence  of  any  such  certificate;  but  nothin 
lierein  affects  the  rights  of  purchasers  or  encumbrancers  previou 
to  tile  taking  effect  of  this  act.  Duly  certified  copies  of  th 
record  of  any  such  instrument  may  be  read  in  evidence  wity 
like  effect  as  copies  of  an  instrument  duly  acknowledged  an( 
recorded;  provided,  when  such  copying  in  the  proper  book  o 
record  occurred  within  fifteen  years  prior  to  the  trial  of  thi 
action,  it  is  shown  first  that  the  original  instrument  was  gen 
uine.  (In  effect  90  days  from  and  after  April  22,  1919.  Stats 
1919,    Chap.    163.)  Civil    Code,    1919 


1207.  Defectively  Acknowledged  Deed,  Etc.,  Validated.  Any 
instrument  affecting  the  title  to  real  property,  including  any 
instrument  executed  by  a  married  woman  on  or  after  the  first 
day  of  July,  1891,  which  was,  previous  to  the  first  day  of  Jan- 
uary, [1921,]  copied  into  the  proper  book  of  record,  kept  in  the 
office  of  any  county  recorder,  imparts,  after  that  date,  notice  of 
its  contents  to  subsequent  purchasers  and  encumbrancers,  not- 
withstanding any  defect,  omission,  or  informality  in  the  execu- 
tion of  the  instrument,  or  in  the  certificate  of  acknowledgment 
thereof,  or  the  absence  of  any  such  certificate;  but  nothing 
herein  affects  the  rights  of  purchasers  or  encumbrancers  pre- 
vious to  the  taking  effect  of  this  act.  Duly  certified  copies  of 
the  record  of  any  such  instrument  may  be  read  in  evidence 
with  like  effect  as  copies  of  an  instrument  duly  acknowledged 
and  recorded;  provided,  when  such  copying  in  the  proper  book 
of  record  occurred  within  fifteen  years  prior  to  the  trial  of  the 
action,  it  is  sho-mi  first  that  the  original  instrument  was  gen- 
uine. (In  effect  90  days  from  and  after  April  29,  1921.  Stats. 
1921,  Chap.   97.)  Civ.    Code,  1921. 

1919,    Chap.    163.)  ,  ^'^"    ^°°^-    ■"^'"^ 


429  PROOF  AND   ACKNOWLEDGMENT    OP   INSTRUMENTS.       §  1207 

be  read  in  evidence,  with  like  effect  as  copies  of  an  instrument  duly 
acknowledged  and  recorded,  provided  it  be  first  shown  that  the  origi- 
nal instrument  was  genuine." 

2.  Amended  by  Stats.  1897,  p.  64,  changing  the  first  words  of  the 
section  to  read,  "Any  instrument  affecting  real  property,  which  was 
previous  to  the  first  day  of  January,  one  thousand  eight  hundred  and 
ninety-seven,"  thereafter  the  section  reading  as  when  added  in  1873-74. 

3.  Amendment  by  Stats.  1901,  p.  398;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1903,  p.  108,  (1)  in  first  sentence,  substituting 
(a)  "one  thousand  nine  hundred  and  three"  for  "one  thousand  eight 
hundred  and  ninety-seven,"  (b)  "imparts"  for  "shall  be  deemed  to  im- 
part," and  (c)  "affects"  for  "shall  be  deemed  to  affect";  (2)  changing 
the  proviso  to  read,  "provided,  when  such  copying  in  the  proper  book 
of  record  occurred  within  fifteen  years  prior  to  the  trial  of  the  action, 
it  is  first  shown  that  the  original  instrument  was  genuine." 

5.  Amended  by  Stats.  1909,  p.  45,  to  read:  "Any  instrument  affecting 
the  title,  to  real  property,  which  was,  previous  to  the  first  day  of  Janu- 
ary, one  thousand  nine  hundred  [and]  nine,  copied  into  the  proper  book 
of  record,  kept  in  the  office  of  any  county  recorder,  imparts,  after  that 
date,  notice  of  its  contents  to  subsequent  purchasers  and  encum- 
brancers, notwithstanding  any  defect,  omission,  or  informality  in  the 
execution  of  the  instrument,  or  in  the  certificate  of  acknowledgment 
thereof,  or  the  absence  of  any  such  certificate;  but  nothing  herein 
affects  the  rights  of  purchasers  or  encumbrancers  previous  to  that 
date.  Duly  certified  copies  of  the  record  of  any  such  instrument  may 
be  read  in  evidence  with  like  effect  as  copies  of  an  instrument  duly 
acknowledged  and  recorded;  provided,  when  such  copying  in  the  proper 
book  of  record  occurred  within  fifteen  years  prior  to  the  trial  of  the 
action,  it  is  shown  first  that  the  original  instrument  was  genuine." 

6.  Amended  by  Stats.  1913,  p.  75,  to  read:  "Any  instrument  affect- 
ing the  title  to  real  property,  which  .was,  previous  to  the  first  day  of 
January,  one  thousand  nine  hundred  and  thirteen,  copied  into  the 
proper  book  of  record,  kept  in  the  otBce  of  any  county  recorder,  im- 
parts, after  that  date,  notice  of  its  contents  to  subsequent  purchasers 
and  encumbrancers,  notwithstanding  any  defect,  omission,  or  infor- 
mality in  the  execution  of  the  instrument,  or  in  the  certificate  of 
acknowledgment  thereof,  or  the  absence  of  any  such  certificate;  but 
nothing  herein  affects  the  rights  of  purchasers  or  encumbrancers  pre- 
vious to  that  date.  Duly  certified  copies  of  the  record  of  any  such 
instrument  may  be  read  in  evidence  with  like  effect  as  copies  of  an 
instrument  duly  acknowledged  and  recorded;  provided,  when  such 
copying  in  the  proper  book  of  record  occurred  within  fifteen  years 
prior  to  the  trial  of  the  action,  it  is  shown  first  that  the  original  in- 
strument was  genuine." 

7.  Amended  by  Stats.  1915,  p.  1211. 


§  1215  CIVIL  CODE.  430 

ARTICLE  IV. 

Effect  of  Recording  or  of  the  Want  Thereof. 

§  1213.  Record   of   conveyances.     Certified   copies. 

§  1214.  Conveyances  to  be  recorded,  or  are  void,  etc. 

§  1215.  Conveyance  defined. 

§  1216.  Powers  of  attorney,  liow  revoked. 

§  1217.  Unrecorded  instrument  valid  between  the  parties. 

§  1218.  Recording  of  copies  of  instruments  affecting  title  to  real  prop- 
erty. 

§  1213.  Record  of  conveyances.  Certified  copies.  Every 
conveyance  of  real  property  acknowledged  or  proved  and  cer- 
tified and  recorded  as  prescribed  by  law  from  the  time  it  is 
filed  with  the  recorder  for  record  is  constructive  notice  of  the 
contents  thereof  to  subsequent  purchasers  and  mortgagees ; 
and  a  certified  copy  of  any  such  recorded  conveyance  may  be 
recorded  in  any  other  county  and  when  so  recorded  the  record 
thereof  shall  have  the  same  force  and  effect  as  though  it  was  of 
the  original  conveyance  and  where  such  original  conveyance 
has  been  recorded  in  any  county  wherein  the  property  therein 
mentioned  is  not  situated  a  certified  copy  of  such  recorded  con- 
veyance may  be  recorded  in  the  county  where  such  property  is 
situated  with  the  same  force  and  effect  as  if  the  original  con- 
veyance had  been  recorded  in  such  county.  [Amendment  ap- 
proved 1909;  Stats.  1909,  p.  278.] 

Recording  dates  from  time  of  deposit:  See  ante,  §  1170. 
Recording  certified  copies:   See  post,  §  1218. 

Legislation  §  1213.  1.  Enacted  March  21,  1872,  and  then  ended  with 
the  words  "purchaser  [sic]  and  mortgagees." 

2.  Amended  by  Stats.  1897,  p.  59,  adding,  at  the  end  of  the  original 
code  section,  the  clause  beginning  "and  a  certified  copy"  and  ending 
"original  conveyance,"  these  latter  words  then  ending  the  section. 

3.  Amended  by  Stats.  1909,  p.  278. 

§  1214.     Conveyances    to    be    recorded,    or    are    void,    etc. 

Every  conveyance  of  real  property,  other  than  a  lease  for  a  term 
not  exceeding  one  year,  is  void  as  against  any  subsequent  pur- 
chaser or  mortgagee  of  the  same  property,  or  any  part  thereof, 
in  good  faith  and  for  a  valuable  consideration,  whose  convey- 
ance is  first  duly  recorded,  and  as  against  any  judgment  affect- 
ing the  title,  unless  such  conveyance  shall  have  been  duly 
recorded  prior  to  the  record  of  notice  of  action.  [Amendment 
approved  1895;  Stats.  1895,  p.  50.] 

Intent  to  defraud  purchasers  avoids  deed:  See  post,  §  1227. 
Rights  against  unrecorded  instnmients:   See  ante,  §  1107. 
Legislation  §  1214.     1.  Enacted  March  21,  1872,  and  then  ended  with 
the  words  "is  first  duly  recorded." 
2.  Amended  by  Stats.  1895,  p.  50. 

§1215.  Conveyance  defined.  The  term  "conveyance,"  as 
used  in  sections  tw^elve  hundred  and  thirteen  and  twelve  hun- 


431  UNLAWFUL  TRANSFERS.  §  1218 

dred  and  fourteen,  embraces  every  instrument  in  writing  by 
which  any  estate  or  interest  in  real  property  is  created,  aliened, 
mortgaged,  or  encumbered,  or  by  which  the  title  to  any  real 
property  may  be  affected,  except  wills. 

Legislation  §  1215.     Enacted  March  21,  1872. 

§  1216.  Powers  of  attorney,  how  revoked.  No  instrument 
containing  a  poM^er  to  convey  or  execute  instruments  affecting 
real  property,  which  has  been  recorded,  is  revoked  by  any  act 
of  the  party  by  whom  it  was  executed,  unless  the  instrument 
containing  such  revocation  is  also  acknowledged  or  proved, 
certified  and  recorded,  in  the  same  office  in  which  the  instru- 
ment containing  the  power  was  recorded. 

Legislation  §  1216.     Enacted  March  21,  1872. 

§  1217.     Unrecorded  instrument  valid  between  the  parties. 

An  unrecorded  instrument  is  valid  as  between  the  parties 
thereto  and  those  who  have  notice  thereof. 

Legislation  §  1217.     Enacted  March  21,  1872;   based  on  Conveyance 
Act  of  1850,  Stats.  1850,  p.  249,  §§  24,  25,  26;  Landers  v.  Bolton,  26  Cal. 
,  393. 

§  1218.  Recording-  of  copies  of  instruments  affecting'  title  to 
real  property.  A  certified  copy  of  an  instrument  affecting  the 
title  to  real  property,  once  recorded,  or  a  certified  copy  of  the 
record  of  such  instrument  may  be  recorded  in  any  other  county, 
and,  when  so  recorded,  the  record  thereof  has  the  same  force 
and  effect"  as  though  it  was  of  the  original  instrument. 
[Amendment  approved  1913;  Stats.  1913,  p.  335.] 
Recording  certified  copies:   See  ante,  §  1213. 

Legislation  §  1218.  1.  Addition  by  Stats.  1901,  p.  398;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  604;  the  code  commissioner  saying,  "This 
is  a  new  section.  It  is  self-explanatory."  As  enacted  in  1905  it  read: 
"A  certified  copy  of  an  instrument  affecting  the  title  to  real  property 
once  recorded  may  be  recorded  in  any  other  county,  and,  when  so 
recorded,  the  record  thereof  has  the  same  force  and  effect  as  though 
it  was  of  the  original  instrument." 

3.  Amended  by  Stats.  1913,  p.  335. 

CHAPTER  V. 

Unlawful  Transfers. 

§  1227.     Certain  instruments  void  against   purchasers,   etc. 

§  1228.     Not    void    against    purchaser    having    notice,    unless    fraud    is 

mutual. 
§  1229.     Power  to   revoke,  when   deemed   executed. 
§  1230.     Same. 
§  1231.     Other  provisions. 

§  1227.     Certain  instruments  void  against  purchasers,  etc. 

Every  instrument,   other  than  a   will,  affecting  an   estate  in 


§  1231  CIVIL  CODE.  432 

real  property,  including  every  charge  upon  real  property,  or 
upon  its  rents  or  profits,  made  with  intent  to  defraud  prior  or 
subsequent  purchasers  thereof,  or  encumbrancers  thereon,  is 
void  as  against  every  purchaser  or  encumbrancer,  for  value,  of 
the  same  property,  or  the  rents  or  profits  thereof. 

Transfers  in  fraud  of  creditors:  See  post,  §§  3439  et  seq. 
Fraudulent  intent  is  question  of  fact:   See  post,  §  3442. 
Legislation  §  1227.     Enacted  Mareh  21,  1872;  based  on  Field's  Draft, 
N.   Y.  Civ.   Code,  §535;    Fraudulent  Conveyance   and  Contract   Act  of 

1S50,  Stats.  1850,  p.  266,  §  1. 

§  1228.  Not  void  against  purchaser  having  notice,  unless 
fraud  is  mutual.  No  instrument  is  to  be  avoided  under  the 
last  section,  in  favor  of  a  subsequent  purchaser  or  encum- 
brancer having  notice  thereof  at  the  time  his  purchase  was 
made,  or  his  lien  acquired,  unless  the  person  in  whose  favor 
the  instrument  was  made  was  privy  to  the  fraud  intended. 

Legislation  §  1228.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  536;  Fraudulent   Conveyancee   and  Contract  Act  of 

1850,  Stats.  1850,  p.  266,  §  2. 

§  1229.  Power  to  revoke,  when  deemed  executed.  Where  a 
power  to  revoke  or  modify  an  instrument  affecting  the  title  to, 
or  the  enjoyment  of,  an  estate  in  real  property,  is  reserved  to 
the  grantor,  or  given  to  any  other  person,  a  subsequent  grant 
of,  or  charge  upon,  the  estate,  by  the  person  having  the  power 
of  revocation,  in  favor  of  a  purchaser  or  encumbrancer  for 
value,  operates  as  a  revocation  of  the  original  instrument,  to 
the  extent  of  the  power,  in  favor  of  such  purchaser  or  eiicum 
brancer. 

Legislation  §  1229.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.   Y.   Civ.   Code,  §  537;   Fraudulent   Conveyance   and  Contract   Act   of 

1850,  Stats.  1850,  p.  266,  §3. 

§  1230.  Same.  Where  a  person  having  a  power  of  revoca- 
tion, within  the  provisions  of  the  last  section,  is  not  entitled  to 
execute  it  until  after  the  time  at  which  he  makes  such  a  grant 
or  charge  as  is  described  in  that  section,  the  power  is  deemed 
to  be  executed  as  soon  as  he  is  entitled  to  execute  it. 

Legislation  §  1230.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.   Civ.   Code,  §  538;   Fraudulent   Conveyance   and   Contract  Act  of 

1850,  Stats.  1850,  p.  266,  §  5. 

§  1231.  Other  provisions.  Other  provisions  concerning  un- 
lawful transfers  are  contained  in  part  two,  division  fourth,  of 
this  code,  concerning  the  special  relations  of  debtor  and 
creditor. 

Unlawful  transfers:  See  post,  §§  3439  et  seq. 
Legislation  §  1231.     Enacted  March  21,  1872. 


433  GENERAL    PROVISIONS    AS    TO    HOMESTEADS.  §  1237 

TITLE  Y. 
Homesteads. 

Chapter  I.     General   Provisions.     §§  1237-1261. 

II.     Homestead  of  the  Head  of  a  Family.     §§  12.62-1265. 
III.     Homestead  of  Other  Persons.     §§  1266-1269. 
IV.     Alienation    of    Homesteads    of     Insane    Persons.     §§  1269a- 
1269c. 

CHAPTER  I. 
General  Provisions. 

§  1237.  Homestead,  of  what  it  consists. 

§  1238.  From  what  it  may  be  selected. 

§  1239.  From  what  not. 

§  1240.  Exempt  from  forced  sale. 

§  1241.  Subject  to,  when. 

§  1242.  How  conveyed  or  encumbered. 

§  1243.  How  abandoned. 

§  1244.  Same. 

§  1245.  Proceedings  on  execution  against  homesteads. 

§  1246.  Application. 

§  1247.  Petition. 

§  1248.  Service  of  notice  of  hearing. 

§  1249.  Appointment  of  appraisers. 

§  1250.  Appraisers  to   take  oath. 

§  1251.  Duties  of  appraisers. 

§  1252.  Eeport  of  appraisers. 

§  1253.  Proceedings  where  land  cannot  be  divided  without  material  in- 
jury. 

§  1254.  Sale  of  homestead,  when  ordered. 

§  1255.  Bid  not  received  at  sale  unless  exceeding  homestead  exemp- 
tion. 

§  1256.  Proceeds  of  sale,  how  disposed  of. 

§  1257.  After  sale,  money  equal  to  homestead  exemption  protected. 

§  1258.  Compensation  of  appraisers. 

§  1259.  Costs. 

§  1260.  Who  may  select  homestead,  value  of. 

§  1261.  Head  of  family  defined. 

§  1237.  Homestead,  of  what  it  consists.  The  homestead 
consists  of  the  dwelling-house  in  which  the  claimant  resides, 
and  the  land  on  which  the  same  is  situated,  selected  as  in  this 
title  provided.  [Amendment  approved  1874 ;  Code  Amdts. 
1873-74,  p.  228.] 

Homesteads.     Constitutional  protection:   See  Const.   1879,  art.  xvii, 
§1. 
Selection  of  homestead:  Post,  §  1262. 
Exemption  of  homestead:  Post,  §§  1240,  1241. 

Setting   apart   homestead   for   decedent's   family:    Code   Civ..  Proc, 
§§  1474  et  seq. 
Abandonment  of  homestead:   Post,  §  1243. 

Oiv.  Code — 28 


§  1241  CIVIL  CODE.  434 

Legislation  §  1237.  1.  Enacted  March  21,  1872  (based  on  Const. 
1849,  art.  xi,  §  15;  Stats.  1851,  p.  296,  §  1;  Stats.  1860,  p.  311,  §  1;  Es- 
tate of  Delaney,  37  Cal.  176),  and  then  read:  "The  homestead  consists 
of  a  quantity  of  land,  on  which  the  claimant  resides,  selected  as  in  this 
title  provided." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  228. 

3.  Amendment  by  Stats.  1901,  p.  398;  unconstitutional.  See  note, 
§  4,  ante. 

§  1238.  From  what  it  may  be  selected.  If  the  claimant  he 
married,  the  homestead  may  be  selected  from  the  community 
property,  or  the  separate  property  of  the  husband,  or,  with  the 
consent  of  the  wife,  from  her  separate  property.  When  the 
claimant  is  not  married,  but  is  the  head  of  a  family,  within  the 
meaning  of  section  one  thousand  two  hundred  and  sixty-one, 
.the  homestead  may  be  selected  from  any  of  his  or  her  property. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  229.] 
Consent  of  wife:  See  next  section. 

Legislation  §  1238.  1.  Enacted  March  21,  1872  (based  on  Stats.  1867- 
68,  p.  116,  §§  1,  3),  and  then  read:  "It  may  be  selected  by  the  claimant 
from  any  land-in  the  possession  of  the  claimant,  or  of  the  husband  of 
the  claimant." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  229. 

§  1239,  From  v^hat  not.  The  homestead  cannot  be  selected 
from  the  separate  property  of  the  wife,  Avithout  her  consent, 
shown  by  her  making  or  joining  in  making  the  declaration  of 
homestead.  [Amendment  approved  1874;  Code  Amdts.  1873- 
74,  p.  229.] 

Consent  of  wife:  See  prior  section. 

Legislation  §  1239.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
husband  cannot  select  a  homestead  from  the  separate  property  of  the 
wife." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  229. 

§  1240.  Exempt  from  forced  sale.  The  homestead  is  ex- 
empt from  execution  or  forced  sale,  except  as  in  this  title  pro- 
vided. 

Homesteads  not  liable  for  debts:  See  Code  Civ.  Proc,  §  1474. 
Legislation  §  1240.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  399;  unconstitutional.  See  note, 
§  4,  ante. 

§  1241.  Subject  to,  vsrhen.  The  homestead  is  subject  to  exe- 
cution or  forced  sale  in  satisfaction  of  judgments  obtained : 

1.  Before  the  declaration  of  homestead  Avas  filed  for  record, 
and  which  constitute  liens  upon  the  premises. 

2.  On  debts  secured  by  mechanics,  contractors,  subcon- 
tractors, artisans,  architects,  builders,  laborers  of  every  class, 
material-men's  or  vendor's  liens  upon  the  premises. 


435  GENKRAL   PROVlSIOiSTS   AS    TO    HOMESTEADS,  §  1243 

3.  On  debts  secured  by  mortgages  on  the  premises,  executed 
and  acknowledged  by  husband  and  wife,  or  by  an  unmarried 
claimant. 

4.  On  debts  secured  by  mortgages  on  the  premises,  executed 
and  recorded  before  the  declaration  of  homestead  was  filed 
for  record.      [Amendment  approved  1887;  Stats.  1887,  p.  81.] 

Mortgage  of:  See  post,  §  1242, 

Debts,  for  what  liable:   See  post,  §  1265. 

Legislation  §  1241.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
homestead  is  subject  to  execution  or  forced  sale  in  satisfaction  of 
judgments  obtained:  1.  Before  the  'declaration  of  homestead'  was  filed 
for  record,  and  which  constitute  liens  upon  the  land  out  of  which  the 
homestead  is  carved;  2.  On  debts  secured  by  mechanics',  laborers,'  or 
vendors'  liens  on  the  land;  3.  On  debts  secured  by  mortgages  upon  the 
land,  executed  and  acknowledged  by  the  husband  and  wife,  or  an  un- 
married claimant;  4.  On  debts  secured  by  mortgages  on  the  land,  exe-- 
cuted  and  recorded  before  the  'declaration  of  homestead'  was  filed  for 
record." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  229,  (1)  the  introductory 
paragraph  reading  same  as  the  original  code  section;  (2)  subd.  1  read- 
ing, "One.  Before  the  declaration  of  homestead  was  filed  for  record, 
and  which  constitute  liens  upon  the  premises";  (3)  in  subd.  2,  "land" 
was  changed  to  "premises";  (4)  in  subd.  3,  (a)  "land"  was  changed 
to  "premises,"  and  (b)  "and"  was  omitted  before  "wife";  (5)  in  subd. 
4,  (a)  "on"  was  changed  to  "upon,"  and  (b)  "land"  to  "premises." 

3.  Amended  by  Code  Amdts.  1880,  p.  7,  and  differed  from  the  amend- 
ment of  1887,  in  that,  (1)  subd.  2  read,  "2.  On  debts  secured  by  me- 
chanics', laborers',  or  vendors'  liens  upon  the  premises";  (2)  subd.  3 
had  the  word  "the"  before  "husband";  (3)  subd.  4  had  "on"  instead 
of  "upon"  before  "the  premises." 

4.  Amended  by  Stats.  1887,  p.  81. 

§  1242.     How  conveyed  or  encumbered.     The  homestead  of  a 
married  person  cannot  be  conveyed  or  encumbered  unless  the 
instrument  by  which  it  is  conveyed  or  encumbered  is  executed 
and  acknowledged  by  both  husband  and  wife. 
Mortgages,  etc.:  See  ante,  §  1241,  subds.  3,  4. 

Provisions  enabling  parties  to  alienate  and  encumber  homesteads: 
See  post,  §§  1269a-1269c, 

Legislation  §  1242,     Enacted  March  21,  1872, 

§  1243,  How  abandoned,  A  homestead  can  be  abandoned 
only  by  a  declaration  of  abandonment,  or  a  grant  thereof,  exe- 
cuted and  acknowledged: 

1.  By  the  husband  and  wife,  if  the  claimant  is  married ; 

2.  By  the  claimant,  if  unmarried. 

Legislations  1243,  1,  Enacted  March  21,  1872;  based  on  Stats.  1851, 
p,  296,  §  2;  Stats.  1860,  p.  311,  §  2;  Stats.  1862,  p.  519,  §  2. 

2,  Amendment  by  Stats.  1901,  p.  399;  unconstitutional.  See  note, 
§  4,  ante. 


§  1246  CiVEL  CODE.  436 

§  1244.  Same.  A  declaration  of  abandonment  is  effectual 
only  from  the  time  it  is  filed  in  the  office  in  which  the  home- 
stead was  recorded. 

Legislation  §  1244.     Enacted   March   21,   1872. 

§  1245.     Proceedings    on    execution    against    homesteads. 

"When  an  execution  for  the  enforcement  of  a  judgment  ob- 
tained in  a  case  not  within  the  classes  enumerated  in  section 
1241  is  levied  upon  the  homestead,  the  judgment  creditor  may 
at  any  time  within  sixty  days  thereafter  apply  to  the  superior 
court  of  the  county  in  which  the  homestead  is  situated  for  the 
appointment  of  persons  to  appraise  the  value  thereof,  and  if 
such  application  shall  not  be  made  within  sixty  days  after  the 
levy  of  such  execution  the  lien  of  the  execution  shall  cease  at 
the  expiration  of  said  period,  and  no  execution  based  upon  the 
same  judgment  shall  thereafter  be  levied  upon  the  homestead. 
[Amendment  approved  1911 ;  Stats.  1911,  p.  888.] 

Value  of  homestead:    See  post,  §  1263. 

Legislation  §  1245.  1.  Enacted  March  21,  1872,  and  then  had  the 
words  "county  judge"  instead  of  "superior  court." 

2.  Amended  by  Code  Amdts.  1880,  p.  7,  and  then  read:  "When  an 
execution  for  the  enforcement  of  a  judgment  obtained  in  a  case  not 
within  the  classes  enumerated  in  section  one  thousand  two  hundred 
and  forty-one  is  levied  upon  the  homestead,  the  judgment  creditor 
may  apply  to  the  superior  court  of  the  county  in  which  the  homest-ead 
is  situated  for  the  appointment  of  persons  to  appraise  the  value 
thereof." 

3.  Amendment  by  Stats.  1901,  p.  399;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1911,  p.  888. 

§1246.  Application.  The  application  must  be  made  upon 
a  verified  petition  of  the  judgment  creditor  showing: 

1.  The  fact  that  an  execution  has  been  levied  upon  the  home- 
stead within  sixty  days  prior  to  the  filing  of  said  petition. 

2.  A  description  of  the  homestead  and  the  name  of  the 
claimant. 

3.  That  the  value  of  the  homestead  exceeds  the  amount  of 
the  homestead  exemption. 

4.  That  no  previous  execution  arising  out  of  the  same  judg- 
ment has  been  levied  upon  said  homestead.  [Amendment 
approved  1911:  Stats.  1911,  p.  889.] 

Legislation!  1246.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
application  must  be  made  upon  a  verified  petition,  showing:  1.  The 
fact  that  an  execution  has  been  levied  upon  the  homestead;  2.  The 
name  of  the  claimant;  3.  That  the  value  of  the  homestead  exceeds  the 
amount  of  the  homestead  exemption." 

2.  Amendment  by  Stats.  1901,  p.  399;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1911,  p.  889. 


437  GENERAL,    PROVISIONS    AS    TO    HOMESTEADS.  §  1252 

§  1247.  Petition.  The  petition  must  be  filed  with  the  clerk 
of  the  superior  court.  [Ameudment  approved  1880 ;  Code 
Amdts.  1880,  p.  8.] 

Legislation  §  1247.     1.  Enacted    March    21,   1872,   and   then   had   the 

words  "county  court"  instead  of  "superior  court." 

2.  Amended  by  Code  Amdts.  1880,  p.  8. 

3.  Amendment  by   Stats.   1901,   p.   399;   unconstitutional.     See  note, 
§  4,  ante. 

§  1248.  Service  of  notice  of  hearing.  Within  ninety  days 
from  the  date  of  filing  the  petition,  a  eopy  thereof,  with  the 
notice  of  the  time  and  place  of  hearing,  must  be  served  upon 
the  claimant  or  his  attorneys  at  least  two  days  before  the  hear- 
ing; and  if  such  notice  shall  not  be  so  served,  the  lien  of  the 
execution  shall  cease  at  the  expiration  of  said  period  of  ninety 
days,  and  no  execution  based  upon  the  same  judgment  shall 
thereafter  be  levied  upon  the  homestead.  [Amendment  ap- 
proved 1911;-Stats.  1911,  p.  890.] 

Legislation  §  1248.     1.  Enacted  March  21,  1872,   and  then  read:   "A 

copy  of  the  petition,  with  a  notice  of  the  time  and  place  of  hearing, 

must  be  served  upon  the  claimant,  at  least  two  days  before  the  hear- 
~  ing." 

2,  Amendment  by   Stats.   1901,   p.   399;   unconstitutional.     See   note, 

§  4,  ante. 
•3.  Ameiided  by  Stats.  1911,  p.  890. 

§  1249.  Appointment  of  appraisers.  At  the  hearing  the 
judge  may,  upon  proof  of  the  service  of  a  copy  of  the  petition 
and  notice,  and  of  the  facts  stated  in  the  petition,  appoint  three 
disinterested  residents  of  the  county  to  appraise  the  value  of 
the  homestead. 

Legislation  §  1249.     1.  Enacted  March  21,  1872. 

2.  Amendment  by   Stats.   1901,   p.   400;   unconstitutional.     See   note, 
§  4,  ante. 

§  1250.     Appraisers  to  take  oath.     The  persons  appointed, 
before  entering  upon  the  performance  of  their  duties,  must 
take  an  oath  to  faithfully  perform  the  same. 
Legislation  §  1250.     Enacted  March  21,  1872. 

§  1251.     Duties  of  appraisers.     They  must  view  the  premises 
and  appraise  the  value  thereof,  and  if  the  appraised  value  ex- 
ceeds the  homestead  exemption  they  must  determine  whether 
the  land  claimed  can  be  divided  without  material  injury. 
Legislation  §  1251.     Enacted  March  21,  1872. 

§  1252.  Report  of  appraisers.  Within  fifteen  days  after 
their  appointment  they  must  make  to  the  judge  a  report  in 
writing,  which  report  must  show  the  appraised  value  and  their 
determination  upon  the  matter  of  a  division  of  the  land 
claimed. 


§  1257  CIVIL  CODE.  438 

Legislation  §  1252.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note, 
§  4,  ante. 

§  1253.  Proceedings  where  land  cannot  be  divided  without 
material  injury.  If,  from  the  report,  it  appears  to  the  judge 
that  the  land  claimed  can  be  divided  without  material  injury, 
he  must,  by  an  order,  direct  the  appraisers  to  set  off  to  the 
claimant  so  much  of  the  land,  including  the  residence,  as  will 
amount  in  value  to  the  homestead  exemption,  and  the  execu- 
tion may  be  enforced  against  the  remainder  of  the  land. 

Legislation  §  1253.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note, 
§  4,  ante. 

§  1254.  Sale  of  homestead,  when  ordered.  If,  from  the  re- 
port, it  appears  to  the  judge  that  the  land  claimed  exceeds  in 
value  the  amount  of  the  homestead  exemption,  and  that  it  can- 
not be  divided,  he  must  make  an  order  directing  its  sale  under 
the  execution. 

Legislation  §  1254.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note, 
§  4,  ante. 

§  1255.  Bid  not  received  at  sale  unless  exceeding-  home- 
stead exemption.     At  such  sale  no  bid  must  be  received,  unless 

it  exceeds  the  amount  of  the  homestead  exemption. 
Legislation  §  1255.     Enacted  March  21,  1872. 

§  1256.     Proceeds  of  sale,  how  disposed  of.     If  the  sale  is 
made,  the  proceeds  thereof,  to  the  amount  of  the  homestead 
exemption,  must  be  paid  to  the  claimant,   and  the  balance 
applied  to  the  satisfaction  of  the  execution. 
Legislation  §  1256.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note. 
§  4,  ante. 

§  1257.  After  sale,  money  equal  to  homestead  exemption 
protected.  The  money  paid  to  the  claimant  is  entitled,  for  the 
period  of  six  months  thereafter,  to  the  same  protection  against 
legal  process  and  the  voluntary  disposition  of  the  husband, 
which  the  law  gives  to  the  homestead.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  230.] 

Exemption  of  proceeds  of  sale:  See  post,  §  1265. 

Legislation  §  1257.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
money  paid  to  the  claimant  is  entitled  to  all  the  protection  against 
legal  process  and  the  voluntary  disposition  of  the  husband  which  the 
law  gives  to  the  homestead." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  230. 


1261.  Head  of  Family  Defined.  The  phrase  "head  of  a 
family,"    as   used   in   this    title,    includes   within    its    meaning: 

1.  The   husband,    when    the   claimant   is   a   married   person. 

2.  Every  person  who  has  residing  on  the  premises  with  him 
or  her,   and  under   his  or  her   care  and   maintenance,    either: 

[al  His  or  her  minor  child,  or  minor  grandchild,  or  the  minor 
child   of   his    or   her   deceased   wife   or   husband; 

[b]  A  minor  brother  or  sister,  or  the  minor  child  of  a  de- 
ceased   brother   or   sister; 

[c]  A   father,    mother,    grandfather,    or    grandmother; 

fdl  The  father,  mother,  grandfather,  or  grandmother  of  a 
deceased   husband   or  wife; 

[e]  An  unmarried  sister,  or  any  other  of  the  relatives  men- 
tioned in  this  section,  who  have  attained  the  age  of  majority, 
and  are  unable  to  take  care  of  or  support  themselves.  (In 
effect  90  days  from  and  after  April  29,  1921.  Stats.  1921.  Chap. 
786.)  Civ.    Code,  1921. 


439  GENERAL    PROVISIONS    AS    TO    HOMESTEADS.  §  1261 

§  1258.     Compensation  of  appraisers.     The  court  must  fix 
the  compensation  of  the  appraisers,  not  to  exceed  five  dollars 
per  day  each  for  the  time  actually  engaged. 
Legislation  §  1258.     Enacted  Marcli  21,  1872. 

§  1259.  Costs.  The  execution  creditor  must  pay  the  costs 
of  these  proceedings  in  the  first  instance ;  but  in  the  cases  pro- 
vided for  in  sections  twelve  hundred  and  fifty-three  and  twelve 
hundred  and  fifty-four  the  amount  so  paid  must  be  added  as 
costs  on  execution,  and  collected  accordingly. 
Legislation  §  1259.     Enacted  Marcli  21,  1872. 

§  1260.  Who  may  select  homestead,  value  of.  Homesteads 
may  be  selected  and  claimed : 

1.  Of  not  exceeding  five  thousand  dollars  in  value  by  any 
head  of  a  family ; 

2.  Of  not  exceeding  one  thousand  dollars  in  value  by  any 
other  person. 

Estimate  of  value:  See  post,  §  1263. 
Place  of  recording:  See  post,  §  1264. 
Legislation  §  1260.     Enacted  March  21,  1872. 

§1261.  Head  of  family  defined.  The  phrase  ''head  of  a 
family,"  as  used  in  this  title,  includes  within  its  meaning: 

1.  The  husband,  when  the  claimant  is  a  married  person. 

2.  Every  person  who  has  residing  on  the  premises  with  him 
or  her,  and  under  his  or  her  care  and  maintenance,  either : 
(1)  His  or  her  minor  child,  or  minor  grandchild,  or  the  minor 
child  of  his  or  her  deceased  wife  or  husband;  (2)  A  minor 
brother  or  sister,  or  the  minor  child  of  a  deceased  brother  or 
sister. 

3.  A  father,  mother,  grandfather,  or  grandmother. 

4.  The  father,  mother,  grandfather,  or  ^  grandmother  of  a 
deceased  husband  or  wife. 

5.  An  unmarried  sister,  or  any  other  of  the  relatives  men- 
tioned in  this  section,  who  have  attained  the  age  of  majority, 
and  are  unable  to  take  care  of  or  support  themselves.  [Amend- 
ment approved  1893;  Stats.  1893,  p.  123.] 

Legislation  §  1261.  1.  Enacted  March  21,  1872  (based  on  Stats.  1851, 
p.  296,  §  5;  Stats.  1S62,  p.  519,  §  3),  and  then  read:  "The  phrase,  'head 
of  a  family,'  as  used  in  this  title,  includes  within  its  meaning:  1.  The 
husband;  2.  The  wife;  3.  Every  person  who  has  residing  on  the  prem- 
ises with  him  or  her  and  under  his  or  her  care  and  maintenance  either: 
First — His  or  her  minor  child,  or  the  minor  child  of  his  or  her  deceased 
wife  or  husband;  Second — A  minor  brother  or  sister,  or  the  minor 
child  of  a  deceased  brother  or  sister;  Third — A  father,  mother,  grand- 
father,  or  grandmother;   Fourth — The  father,   mother,   grandfather,   or 


§  1262  CIVIL  CODE.  440 

grandmother  of  a  deceased  husband  or  wife;  Fifth — An  unmarried 
sister,  or  any  other  of  the  relatives  mentioned  in  this  section  who 
have  attained  the  age  of  majority  and  are  unable  to  take  care  of  or 
support  themselves." 

2.  Amended  by  Code  Amdts.  1873-7i,  p.  230.  to  read:  "The  phrase 
'bead  of  a  family,'  as  used  in  this  title,  includes  within  its  meaning: 
One — The  husband,  when  the  claimant  is  a  married  person.  Two — - 
Every  person  who  has  residing  on  the  premises  with  him  or  her  and 
under  his  or  her  care  and  maintenance,  either:  1.  His  or  her  minor 
child,  or  the  minor  child  of  his  or  her  deceased  wife  or  husband.  2. 
A  minor  brother  or  sister,  or  the  minor  child  of  a  deceased  brother  or 
sister.  3.  A  father,  mother,  grandfather,  or  grandmother.  4.  The 
father,  mother,  grandfather,  or  grandmother  of  a  deceased  husband  or 
wife.  5.  An  unmarried  sister,  or  any  other  of  the  relatives  mentioned 
in  this  section  who  have  attained  the  age  of  majority,  and  are  unable 
to  take  care  of  or  support  themselves." 

3.  Amended  by  Stats.  1893,  p.  123,  (a)  in  subd.  2,  adding  a  comma 
after  "him  or  her,"  and  (b)  in  division  (1)  of  the  same  subdivision, 
adding  "or  minor  grandchild''  after  "her  minor  child,"  these  probably 
being  the  only  changes  made  by  the  legislature.  The  variations  made 
in  printing  consist  in — (1)  changing  the  cardinal  numbers  "One"  and 
"Two,"  as  the  numbers  of  the  two  subdivisions,  to  the  Arabic  char- 
acters 1  and  2;  (2)  limiting  the  first  and  second  divisions  of  subd.  2 
as  its  only  divisions,  by  inclosing  the  Arabic  characters  in  parentheses, 
and  making  subd.  2  and  its  two  divisions  one  paragraph,  thus  leaving 
divisions  3,  4,  and  5  of  the  1873-74  subd.  Two  as  principal  subdivisions, 
co-ordinate  with  subds.  One  and  Two  of  the  old  section. 


CHAPTER  II. 

Homestead  of  the  Head  of  a  Family. 

§  1262.  Mode  of  selection. 

§  1263.  Declaration   of   homestead   must   contain   what. 

§  1264.  Declaration  must  be  recorded. 

§  1265.  Disposition  of  on  death  of  spouse.     Exemption  of. 

§  1262.  Mode  of  selection.  In  order  to  select  a  homestead, 
the  husband  or  other  head  of  a  family,  or  in  case  the  husband 
has  not  made  such  selection,  the  wife,  must  execute  and 
acknowledge,  in  the  same  manner  as  a  grant  of  real  property 
is  acknowledged,  a  declaration  of  homestead,  and  file  the  same 
for  record.  [Amendment  approved  1874 ;  Code  Amdts.  1873- 
74,  p.  230.] 

Declaration  of  homestead:    See   post,  §  1263. 

From  what  property  may  be  selected:  See  ante,  §§  1238,  1239. 

Place  of  recording:  See  post,  §  1264. 

Legislation  §  1262.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
husband  and  wife,  or  either  of  them,  or  other  head  of  a  family,  in  the 
selection  of  the  homestead,  must  execute  and  acknowledge,  in  the  same 
manner  as  a  grant  of  real  property  is  acknowledged,  a  declaration  of 
homestead." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  230, 


441  HOMESTEAD  OF   HEAD  OF   FAMILY.  §  1265 

§  1263.     Declaration  of  homestead  must  contain  what.     The 

declaration  of  homestead  must  contain : 

1.  A  statement,  showing  that  the  person  making  it  is  the 
head  of  a  family,  and,  if  the  claimant  is  married,  the  name  of 
the  spouse ;  or,  when  the  declaration  is  made  by  the  wife,  show- 
ing that  her  husband  has  not  made  such  declaration,  and  that 
she  therefore  makes  the  declaration  for  their  joint  benefit; 

2.  A  statement  that  the  person  making  it  is  residing  on  the 
premises,  and  claims  them  as  a  homestead^ 

3.  A  description  of  the  premises ; 

4.  An  estimate  of  their  actual  cash  value.  [Amendment 
approved  1905;  Stats.  1905,  p.  604.] 

Head  of  a  family:   See  ante,  §  1261. 
Residence  necessary:    See  ante,  §  1237. 

Legislation  §  1263.  1.  Enacted  March  21,  1872  (based  on  Stats.  1851, 
p.  296,  §  1;.  Stats.  1860,  p.  311,  §1),  and  then  read:  "The  'declaration 
of  homestead'  must  contain:  1.  A  statement  of  the  facts  that  show 
the  person  making  it  to  be  the  head  of  a  family;  2.  A  statement  that 
the  person  making  it  is  residing  on  the  land,  and  claims  it  as  a  home- 
stead; 3.  A  description  of  the  land;  4.  An  estimate  of  its  actual  cash 
value." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  231,  to  read:  "The  declara- 
tion of  homestead  must  contain:  One — A  statement,  showing  that  the 
person  making  it  is  the  head  of  a  family;  or,  when  the  declaration  is 
made  by  the  wife,  showing  that  her  husband  has  not  made  such  dec- 
laration, and  that  she  therefore  makes  the  declaration  for  their  joint 
benefit.  Two — A  statement  that  the  person  making  it  is  residing 
on  the  premises,  and  claims  them  as  a  homestead.  Three — A  descrip- 
tion of  the  premises.     Four — An  estimate  of  their  actual  cash  value." 

3.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  604. 

§  1264.  Declaration  must  be  recorded.  The  declaration 
must  be  recorded  in  the  office  of  the  recorder  of  the  county  in 
which  the  land  is  situated. 

Duty  of  recorder:   See  Pol.  Code,  §  4131. 

Legislation  §  1264.     Enacted  March  21,  1872. 

§  1265.  Disposition  of  on  death  of  spouse.  Exemption  of. 
From  and  after  the  time  the  declaration  is  filed  for  record,  the 
premises  therein  described  constitute  a  homestead.  If  the  selection 
was  made  by  a  married  person  from  the  community  property,  or 
from  the  separate  property  of  the  spouse  making  the  selection  or 
joining  therein,  the  land  so  selected,  on  the  death  of  either  of  the 
spouses,  vests  in  the  survivor,  subject  to  no  other  liability  than 
such  as  exists  or  has  been  created  under  the  provisions  of  this 
title ;  in  other  cases,  upon  the  death  of  the  person  whose  property 
was  selected  as  a  homestead,  it  shall  go  to  the  heirs  or  devisees,, 
subject  to  the  power  of  the  superior  court  to.  assign  the  same 


§  1265  CIVIL  CODE.  442 

for  a  limited  period  to  the  family  of  the  decedent;  but  in  no 
case  shall  it,  or  the  products,  rents,  issues  or  profits  thereof  be 
held  liable  for  the  debts  of  the  owner,  except  as  provided  in 
this  title ;  and  should  the  homestead  be  sold  by  the  owner,  the 
proceeds  arising  from  such  sale  to  the  extent  of  the  value  al- 
lowed for  a  homestead  exemption  as  provided  in  this  title 
shall  be  exempt  to  the  owner  of  the  homestead  for  a  period  of 
six  months  next  following  such  sale.  [Amendment  approved 
1911;  Stats.  1911,  p.  61.] 

Exemption  of  proceeds  of  sale:  See  ante,  §  1257. 

Descent  of  homestead:   See  Code  Civ.  Proe.,  §§  1474,  1475. 

Property  exempt  from  execution  to  be  set  apart*  for  family:  Code 
Civ.    Proc,  §§  1465-1470. 

Homestead  set  apart  by  probate  court:  Code  Civ.  Proc,  §§  1474 
et  seq. 

Debts,  for  what  liable:  See  ante,  §  1241. 

Legislation  §  1265.  1.  Enacted  March  21,  1872,  and  then  read:  "From 
and  after  the  time  the  declaration  is  filed  for  record,  the  land  therein 
described  is  a  homestead;  and  if  the  declaration  was  made  by  a  mar- 
ried person,  the  land  is  thereafter  by  the  spouses  held  in  joint  tenancy, 
and  on  the  death  of  either  of  the  spouses,  and  subject  to  no  other  lia- 
bility than  such  as  exists  or  has  been  created  under  the  provisions  of 
this  title,  it  descends  to  and  the  title  at  once  vests  in  the  survivor." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  231,  to  read:  "From  and 
after  the  time  the  declaration  is  filed  for  record,  the  premises  therein 
described  constitute  a  homestead.  If  the  selection  was  made  by  a 
married  person  from  the  community  property,  the  land,  on  the  death 
of  either  of  the  spouses,  vests  in  the  survivor,  subject  to  no  other  lia- 
bility than  such  as  exists  or  has  been  created  under  the  provisions  of 
this  title ;  in  other  cases,  upon  the  death  of  the  person  whose  property 
was  selected  as  a  homestead,  it  shall  go  to  his  heirs  or  devisees,  subject 
to  the  power  of  the  probate  court  to  assign  the  same  for  a  limited 
period  to  the  family  of  the  decedent;  but  in  no  case  shall  it  be  held 
liable  for  the  debts  of  the  owner,  except  as  provided  in  this  title." 

3.  Amended  by  Code  Amdts.  1880,  p.  8,  the  only  difference  from  the 
amendment  of  1909  (post),  being  in  the  second  sentence,  which,  down 
to  the  words  "in  other  cases,"  read,  "If  the  selection  was  made  by  a 
married  person  from  the  community  property,  the  land,  on  the  death 
of  either  of  the  spouses,  vests  in  the  survivor,  subject  to  no  other  lia- 
bility than  such  as  exists  or  has  been  created  under  the  provisions  of 
this   title." 

4.  Amended  by  Stats.  1909,  p.  972,  to  read:  "From  and  after  the 
time  the  declaration  is  filed  for  record,  the  premises  therein  described 
constitute  a  homestead.  If  the  selection  was  made  by  a  married  per- 
son from  the  community  property,  or  from  the  separate  property  of 
the  spouse  making  the  selection  or  joining  therein,  the  land  so  selected 
on  the  death  of  either  spouse,  vests  in  the  survivor,  subject  to  no  other 
liability  than  such  as  exists  or  has  been  created  under  the  provisions 
of  this  title;  in  other  cases,  upon  the  death  of  the  person  whose  prop- 
erty was  selected  as  a  homestead,  it  shall  go  to  his  heirs  or  devisees, 
subject  to  the  power  of  the  superior  court  to  assign  the  same  for  a 
limited  period  to  the  family  of  the  decedent;  but  in  no  case  shall  it 
be  held  liable  for  the  debts  of  the  owner,  except  as  provided  in  this 
title." 

5.  Amended  by  Stats.  1911,  p.  61. 


443  HOMESTEADS  OF  OTHER  PERSONS.  §  1269 

CHAPTER  III. 

Homestead  of  Other  Persons. 

§  1266.  Mode  of  selection. 

§  1267.  Declaration  of  homestead. 

§  1268.  Declaration   must   be   recorded. 

§  1269.  Effect    of   filing   for    record    the   declaration    of   homestead. 

§  1266.  Mode  of  selection.  Any  person  other  than  the  head 
of  a  family,  in  the  selection  of  a  homestead,  must  execute  and 
acknowledge,  in  the  same  manner  as  a  grant  of  real  property 
is  acknowledged,  a  "declaration  of  homestead." 

Legislation  §  1266.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note, 
§  4,  ante. 

§  1267.  Declaration  of  homestead.  The  declaration  must 
contain  everything  required  by  the  second,  third,  and  fourth 
subdivisions  of  section  tAvelve  hundred  and  sixty-three. 

Legislation  §  1267.  Enacted  March  21,  1872.  By  Stats.  1901,  p.  401, 
an  addition  of  a  new  §  1267  was  made  on  the  recommendation  of  the 
code  commissioners;  unconstitutional.  See  note,  §  4,  ante.  This  un- 
constitutional addition  was  later  enacted  as  §  1269a,  in  1905,  in  a  new 
chapter  embracing  §§  1269a-1269c;  q.  v.,  post. 

§  1268.     Declaration    must   be    recorded.     The    declaration 
must  be  recorded  in  the  office  of  the  county  recorder  of  the 
county  in  which  the  land  is  situated. 
Duty  of  recorder:   See  Pol.  Code,  §  4131. 

Legislation  §  1268.  Enacted  March  21,  1872.  By  Stats.  1901,  p.  401, 
an  addition  of  a  new  §  1268  was  made  on  the  recommendation  of  the 
code  commissioners;  unconstitutional.  See  note,  §  4,  ante.  This  un- 
constitutional addition  was  later  enacted  as  §  1269b,  in  1905,  in  a  new 
chapter  embracing  §§  1269a-1269c;  q.  v.,  post. 

§  1269.  Effect  of  filing  for  record  the  declaration  of  home- 
stead. From  and  after  the  time  the  declaration  is  filed  for 
record,  the  land  described  therein  is  a  homestead. 

Legislation  §  1269.  Enacted  March  21,  1872.  By  Stats.  1901,  p.  401, 
an  addition  of  a  new  §  1269  was  made  on  the  recommendation  of  the 
code  commissioners;  unconstitutional.  See  note,  §  4,  ante.  This  un- 
constitutional addition  was  later  enacted  as  §  1269c,  in  1905,  in  a  new 
chapter  embracing  §§  1269a-1269c;  q.  v.,  post. 


§  1269b  CIVIL  CODE.  444 

CHAPTER  IV. 
Alienation  of  Homesteads  of  Insane  Persons, 

§  1269a.     Petition  for  sale  or  mortgage  of  homestead  where  husband  or 

wife  is  insane. 
§  1269b.     Notice  of  application  for  order. 
§  1269c.     When  an  order  may  be  made  to  sell  or  mortgage  the  homestead 

of  an  insane  person. 

Legislation  Chapter  IV.  Added  by  Stats.  1905,  p.  725,  and  then 
contained  §§  1269a-1269c;  the  code  commissioner  saying  in  his  note 
to  these  sections,  "The  statute  of  1873-74,  p.  582,  relating  to  home- 
steads belonging  to  insane  persons,  is  codified  in  the  above  sections, 
which  are  placed  in  a  new  chapter,  entitled  'Alienation  of  Homesteads 
of  Insane  Persons.'  "  The  sections  constituting  this  new  chapter  were 
the  unconstitutional  additions  §§  1267-1269,  in  1901.  See  post,  tit. 
"Legislation,"  under  the  sections  constituting  this  chapter. 

§  1269a,  Petition  for  sale  or  mortgage  of  homestead  where 
husband  or  wife  is  insane.  In  case  of  a  homestead,  if  either 
the  husband  or  wife  becomes  hopelessly  insane,  the  husband 
or  wife  not  insane  jmay  petition  the  superior  court  of  the 
county  in  which  such  homestead  is  situated  for  an  order  per- 
mitting the  husband  or  wife,  not  insane,  to  sell  and  convey,  or 
mortgage,  such  homestead  to  raise  moneys  to  satisfy  a  lien  or 
charge  thereon,  or  to  provide  for  the  support  and  care  either 
of  the  sane  or  insane  spouse,  or  of  their  minor  children.  Such 
petition  must  be  subscribed  and  sworn  to  by  the  applicant, 
setting  forth  the  name  and  age  of  the  insane  husband  or  wife ; 
the  number,  age,  and  sex  of  the  children,  if  any,  of  such  insane 
husband  or  wife ;  a  description  of  the  premises  constituting 
the  homestead ;  the  value  of  the  same ;  the  county  in  which  it 
is  situated ;  and  such  facts,  in  addition  to  that  of  the  insanity 
of  the  husband  or  wife,  relating  to  the  circumstances  and  neces- 
sities of  the  applicant  and  his  or  her  family,  as  he  or  she  may 
rely  upon  in  support  of  the  petition. 

Legislation  §  1269a.  1.  Addition  by  Stats.  1901,  p.  401,  as  §  1267; 
unconstitutional.     See  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  725.  See  ante.  Legislation  Chapter  IV, 
for  code  commissioner's  note. 

§  1269b.  Notice  of  application  for  order.  Notice  of  the  ap- 
plication for  such  order  must  be  given  by  publication  of  the 
same,  in  a  newspaper  published  in  the  county  in  which  such 
homestead  is  situated,  if  there  is  a  newspaper  published  therein, 
once  each  week  for  three  successive  Aveeks,  prior  to  the  hearing 
of  such  application,  and  a  copy  pf  such  notice  must  also  be 
personally  served  upon  the  nearest  male  relative  of  such  insane 
husband  or  Avife,  resident  in  this  state,  at  least  three  Aveeks 
prior  to  such  application ;  and  in  case  there  is  no  such  male 


445  HOMESTEADS  OF  OTHER  PERSONS.  §  1269c 

relative  known  to  the  applicant,  a  copy  of  such  notice  must 
be  so  served  upon  the  public  administrator  of  the  county  in 
which  such  homestead  is  situated ;  and  in  such  case  it  is  the 
duty  of  such  public  administrator  to  appear  and  represent  the 
interests  of  such  insane  person.  For  all  such  services  rendered 
by  the  public  administrator  he  must  be  allowed  a  reasonable 
fee,  to  be  fixed  by  the  court,  and  the  same  must  be  taxed  as 
costs  against  the  person  making  application  for  the  order 
herein  provided  for. 

Legislation  §  12691).     1.  Additiou   by   Stats.   1901,    p.   401,   as  §  1268; 

unconstitutional.     See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  726.     See  ante,  Legislation  Chapter  IV, 

for  code  commissioner's  note. 

§  1269c.  When  an  order  may  be  made  to  sell  or  mortgage 
the  homestead  of  an  insane  person.  If  it  appears  to  the  court 
■  that  such  husband  or  wife  is  hopelessly  insane,  the  court  may 
make  an  order  permitting  the  husband  or  wife,  not  insane,  to 
sell  and  convey,  or  mortgage,  such  homestead,  and  thereafter 
any  sale,  conveyance,  or  mortgage  made  in  pursuance  of  such 
order  is  as  valid  and  effectual  as  if  the  property  affected 
thereby  was  the  absolute  property  of  the  person  making  such 
sale,  conveyance,  or  mortgage.  If  a  sale  is  ordered  it  must 
be  reported  to  and  confirmed  by  the  court.  Such  husband  or 
wife  must,  before  executing  any  mortgage  or  conveyance,  give 
a  bond,  to  be  approved  by  the  judge  of  the  court,  in  double 
the  amount  of  the  mortgage,  or  double  the  value  of  the  prop- 
erty to  be  sold,  conditioned  to  account  for  the  proceeds  of  the 
mortgage  or  sale  and  to  apply  such  proceeds  only  as  the  court 
may  direct. 

Legislation  §  1269c.     1.  Addition    by    Stats.    1901,    p.   401,    as  §  1269; 

unconstitutional.     See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  726.     See  ante,  Legislation  Chapter  IV, 

for  code  commissioner's  note. 


CIVIL  CODE.  446 

TITLE  VI. 
Wills. 

Chapter  I.     Executiou   and   Eevocation   of   Wills.     §§  1270-1313. 

II.     Interpretation    of   Wills,   and   Effect    of   Various   Provisions. 
§§  1317-1351. 
III.     General  Provisions   Eelatiug  to   Wills.     §§  1357-1377. 

CHAPTER  I. 

Execution  and  Revocation  of  WUIs. 

§  1270.  Who  may  make  a  will. 

§  1271.  Monomaniac   incompetent.     [Repealed.] 

§  1272.  Will,  or  part  thereof,  procured  by  fraud. 

§  1273.  Will  of  married  woman. 

§  1274.  What  may  pass  by  will. 

§  1275.  Who  may  take  by  will. 

§  1276.  Written  will,  how  to  be  executed. 

§1277.  Definition   of   an   olographic  will. 

§  1278.  Witness  to  add  residence. 

§  1279.  Mutual  will. 

§  1280.  Competencv  of  subscribing  witness. 

§  1281.  Conditional  will. 

§  1282.  Gifts  to  subscribing  witnesses  void.  Creditors  competent  wit- 
nesses. 

§  1283.  Witness  who  is  a  devisee,  and  who  would  be  entitled  to  share 
of  testator's  estate  if  no  will,  entitled  to  share  to  amount  of 
devise. 

§  1284.  Will   made   out   of  this  state.     [Repealed.] 

§  1285.  Will  made  out  of  state. 

§  1286.  Subsequent    change    of   domicile.     [Repealed.] 

§  128'7.  Republication  by  codicil. 

§  1288.  Nuncupative  will,  how  to  be  executed. 

§  1289.  Requisites  of  a   valid  nuncupative  will. 

§  1290.  Proof  of  nuncupative  wills. 

§  1291.  Probate   of  nuncupative  wills. 

1  1292.  Written  will,  how  revoked. 

§  1293.  Evidence   of  revocation. 

§  1294.  Revocation  by  obliteration  on  face  of  will.     [Repealed.] 

§  1295.  Revocation  of  duplicate. 

§  1296.  Revocation  by  subsequent  will. 

§  1297.  Antecedent  not  revived  by  revocation  of  subsequent  will. 

§  1298.  Revocation  by  marriage  and  birth  of  issue. 

§  1299.  Effect  of  marriage  of  a  man  on  his  will. 

§  1300.  Effect  of  a  marriage  of  a  woman  on  her  will. 

§  1301.  Contract   of   sale   not   a   revocation. 

§  1302.  Mortgage  not  a  revocation  of  will. 

§  130'3.  Conveyance,  when  not  a   revocation. 

§  1304.  When  it  is  a  revocation. 

§  1305.  Revocation  of  codicils. 

§   1306.  After-born    child,    unprovided    for,    to    succeed. 

§  1307.  Children  or  issue  of  children  of  testator  unprovided  for  by 
his   will. 


1271.  [Repealed.]  Husband  or  Wife  Must  Have  Consent  of 
Other  Spouse  to  Testamentary  Disposition  of  His  or  Her  Half 
of  Community  Property.  (Stats.  1919,  p.  1275.)  Refused  enact- 
ment by  referendum  vote  of  people  at  general  election  November 
2,   1920.  Civ.  Code,  1921. 


With   .he  consent  .„,lL''«L.':hL"™rn"r„uTr"'    "''    '"" 
upon  or  attached  to  the  win-   kV      *>  ^°"^®"'^  "lust   be   in   writing 

consent    of    the    other      mnw  !"""'  "''''"""  "^^y-   ^^^hout  th^ 

favor    Of    the    other    spou'e    or    of    the'r''"r"'r^'    ^-^-'^-n    - 
testator,      (m  effect  90  Tv«  f  /       "^^'    descendants    of    the 

1919,   Chap.   6nT  "  ^"^  ^"'''  ^P'""   -2-   "19.     Stats. 

Civ.    Code,    1919. 


447  EXECUTION   AND   REVOCATION    OP    WILLS.  §  1273 

§  1308.     Share   of   after-born    child,    out   of   what   part   of   estate   to   be 

paid. 
§  1309.     Advancement   during   lifetime   of   testator. 
§  1310.     Death    of    devisee,    being    relation    of    testator,    in    lifetime    of 

testator,    leaving    lineal    descendants. 
§  1311.     Devises  of  land,   how   construed. 

§  1312.     Will   to    pass   rights    acquired    after   the    making   thereof. 
§   1313.     Kestrietion   on   devise   for   charitable   uses. 

§  1270.  Who  may  make  a  will.  Every  person  over  the  age 
of  eighteen  years,  of  sound  mind,  may,  by  last  will,  dispose  of 
all  his  estate,  real  and  personal,  and  such  estate  not  disposed 
of  by  will  is  succeeded  to  as  provided  in  title  seven  of  this  part, 
being  chargeable  in  both  cases  with  the  payment  of  all  the 
decedent's  debts,  as  provided  in  the  Code  of  Civil  Procedure. 

Wills  of  married  women:  See  post,  §  1273. 

Wills  of  unmarried  women  revoked  by  marriage:   Post,  §  1300. 

Effect  of  marriage  of  man  on  his  will:   See  post,  §  1299. 

Validity  of  will:    See   post,  §§  1276,   1376. 

Disposition  of  property  in  case  of  intestacy:  See  post,  §  1384  et 
seq. 

Legislation  §  1270.  Enacted  March  21.  1872;  based  on  Stats.  1850, 
p.  177,  §  1. 

§  1271.  Monomaniac  incompetent.  [Repealed  1874,  Code 
Admts.  1873-74,  p.  232.] 

Legislation  §  1271.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  232. 

§  1272.  Will,  or  part  thereof,  procured  by  fraud.  A  will, 
or  part  of  a  will,  procured  to  be  made  by  duress,  menace,  fraud, 
or  undue  influence,  may  be  denied  probate;  and  a  revocation, 
procured  by  the  same  means,  may  be  declared  void. 

Contest  of  will:   See  Code  Civ.  Proc,  §  1312. 

Undue    influence    as    affecting    contracts:    See    post,  §  1575. 

Revocation  of  will:  Post,  §  1292. 

Contesting  probate  of  will:  Code  Civ.  Proc,  §§  1312  et  seq.  After 
probate:  Code  Civ.  Proc,  §§  1327  et  seq. 

Legislation  §  1272.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  544. 

§  1273.  Will  of  married  woman.  A  married  woman  may 
dispose  of  all  her  separate  estate  by  will,  without  the  consent 
of  her  husband,  and  may  alter  or  revoke  the  will  in  like  man- 
ner as  if  she  were  single.  Her  will  must  be  executed  and 
proved  in  like  manner  as  other  Avills.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  232.] 

Legislation  §  1273.     1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 

p.    177.   §2;    Stats.   1865-66.  p.   317,  §  1 ;   Morrison   v.   Bowman,   29   Cal. 

337),  (1)  the  first  sentence  reading  same  as  the  amendment  of  1873-74, 

(2)  the  second  sentence  reading,  "Her  will  must  be  attested,  witnessed, 

and  proved  in  like  manner  as  all  other  wills." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  232. 


§  1276  CIVIL  CODE.  448 

§  1274.  What  may  pass  by  will.  Every  estate  and  interest 
in  real  or  personal  property,  to  which  heirs,  husband,  widow, 
or  next  of  kin  might  succeed,  may  be  disposed  of  by  will,  ex- 
cept as  otherwise  provided  in  sections  fourteen  hundred  and 
one  and  fourteen  hundred  and  two. 

Legislation  §  1274.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §545  (modified). 

§  1275.  Who  may  take  by  will.  A  testamentary  disposi- 
tion may  be  made  to  any  person  capable  by  law  of  taking  the 
property  so  disposed  of,  except  that  corporations  other  than 
counties,  numicipal  corporations,  and  corporations  formed  for 
scientific,  literary,  or  solely  educational  or  hospital  purposes, 
cannot  take  under  a  will,  unless  expressly  authorized  by  stat- 
ute; subject,  however,  to  the  provisions  of  section  thirteen 
hundred  and  thirteen.  [Amendment  approved  1905 ;  Stats. 
1905,  p.  605.] 

Charitable  uses,  validity  of:  See  post,  §§  1313  et  seq.;  ante,  §  847. 
Legislation  §  1275.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  -N.  Y.  Civ.  Code,  §  546),  and  then  read:  "A  testamentary  dis- 
position may  be  made  to  any  person  capable  by  law  of  taking  the 
property  so  disposed  of,  except  that  no  corporation  can  take  under  a 
will,  unless  expressly  authorized  by  statute  so  to  take." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  275,  changing  the  exception 
to  read,  "except  corporations  other  than  those  formed  for  scientific, 
literary,  or  solely  educational  purposes,  cannot  take  under  a  will,  un- 
less expressly  authorized  by  statute." 

3.  Amendment  by  Stats.  1901,  p.  402;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1903,  p.  258.  changing  the  exception  to  read, 
"except  corporations  other  than  those  formed  for  scientific,  literary,  or 
solely  educational  or  hospital  purposes,  cannot  take  under  a  will,  unless 
expressly  authorized  by  statute." 

5.  Amended  by  Stats.  1905,  p.  605;  the  code  commissioner  saying, 
"The  amendment  in  substance  incorporates  into  the  section  the  pro- 
visions of  the  act  of  1881.  page  2,  authorizing  the  several  counties, 
cities  and  counties,  cities  and  towns  of  the  state,  to  recover  property 
by  gift,  bequest  and  devise." 

§  1276.     Written  will,  how  to  be  executed.     Every  will,  other 
than  a  nuncupative  will,  must  be  in  writing;  and  every  will,, 
other  than  an  olographic  Avill,  and  a  nuncupative  will,  must 
be  executed  and  attested  as  follows : 

1.  It 'must  be  subscribed  at  the  end  thereof  by  the  testator 
himself,  or  some  person  in  his  presence  and  by  his  direction 
must  subscribe  his  name  thereto ; 

2.  The  subscription  must  be  made  in  the  presence  of  the 
attesting  witnesses,  or  be  acknoAvledged  by  the  testator  to  them 
to  have  been  made  by  him  or  by  his  authority ; 

3.  The  testator  must,  at  the  time  of  subscribing  or  acknowl- 
edging the  same,  declare  to  the  attesting  witnesses  that  the 
instrument  is  his  will ;  and, 


449  EXECUTION    AND   REVOCATION    OF    WILLS.  §  1280 

4.  There  must  be  two  attesting  witnesses,  each  of  Avhom  must 
sign  the  same  as  a  witness,  at  the  end  of  the  will,  at  the  testa- 
tor's request  and  in  his  presence.  [Amendment  approved 
1905;  Stats.  1905,  p.  605.] 

Witness   to    add   residence:    See  §  1278,    infra. 

Olographic  will:    See   post,  §  1277. 

'Conjoint   or   mutual   will:    See   post,  §  1279. 

Nuncupative   will:    See  §§  1288-1291. 

Execution  of  foreign  will:   See  post,  §  1285. 

Legislation  §  1276.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  5-50;  Stats.  1850,  p.  177,  §  3),  the  only  differ- 
ence from  the  amendment  of  1905  being  in  subd.  4,  which  had  the 
words  "must  sign  his  name"  instead  of  "must  sign  the  same." 

2.  Amendment  by  Stats.  1901,  p.  402;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  605;  the  code  commissioner  saying, 
"The  purpose  of  the  amendment  [changing  "his  name"  to  "the  same," 
in  subd.  4]  is  to  avoid  the  strict  construction  given  to  subd.  4  in  Estate 
of  Walker,  110  Cal.  387." 

§  1277.  Definition  of  an  olographic  will.  An  olographic 
will  is  one  that  is  entirely  written,  dated,  and  signed  by  the 
hand  of  the  testator  himself.  It  is  subject  to  no  other  form, 
and  may  be  made  in  or  out  of  this  state,  and  need  not  be  wit- 
nessed. 

May  be  proven  in  same  manner  as  other  private  writings:  Code 
Civ.   Proc,  §  1309. 

Legislation  §  1277.     Enacted  March  21,  1872. 

§  1278.  Witness  to  add  residence.  A  witness  to  a  written 
will  must  Avrite,  with  his  name,  his  place  of  residence;  and  a 
person  who  subscribes  the  testator's  name,  by  his  direction, 
must  write  his  OAvn  name  as  a  witness  to  the  will.  But  a  viola- 
tion of  this  section  does  not  affect  the  validity  of  the  will. 

Legislation  §  1278.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  552. 

§  1279.  Mutual  will.  A  conjoint  or  mutual  Avill  is  valid, 
but  it  may  bo  revoked  by  any  of  the  testators,  in  like  manner 
with  any  other  Avill. 

Legislation  §  1279.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  548. 

§  1280.  Competency  of  subscribing  witness.  If  the  sub- 
scribing Avitnesscs  to  a  Avill  are  competent  at  the  time  of 
attesting  its  execution,  their  subsequent  incompetency,  from 
whatever  cause  it  may  arise,  does  not  prevent  the  probate  and 
alloAvance  of  the  Avill,  if  it  is  otherAvise  satisfactorily  proved. 
Legislation  §  1280.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  177,  §4. 

Civ.  Code^29 


S  J--O0  CIVIL   CODE.  450 

§  1281.     Conditional  will.     A  will,  the  validity  of  which  is 
made  by  its  own  terms  conditional,  may  be  denied  probate, 
according  to  the  event,  with  reference  to  the  condition. 
Conditional    devises   and   'beQuests:    See    post,  §§  1345   et    seq. 
Legislation  §  1281.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  549. 

§  1282.  Gifts  to  subscribing  vi^itnesses  void.  Creditors  com- 
petent witnesses.  All  beneficial  devises,  legacies,  and  gifts 
whatever,  made  or  given  in  any  will  to  a  subscribing  witness 
thereto,  are  void,  unless  there  are  two  other  competent  sub- 
scribing witnesses  to  the  same ;  but  a  mere  charge  on  the  estate 
of  the  testator  for  the  payment  of  debts  does  not  prevent  his 
creditors  from  being  competent  witnesses  to  his  will. 

Legislation  §  1282.     Enacted  March  21,  1872;   based  on  Stats.  1S50, 

p.  177,  §  5. 

§  1283.  Witness  who  is  a  devisee,  and  who  would  be  en- 
titled to  share  of  testator's  estate  if  no  will,  entitled  to  share 
to  amount  of  devise.  If  a  witness,  to  whom  any  beneficial 
devise,  legacy,  or  gift,  void  by  the  preceding  section,  is  made, 
Avould  have  been  entitled  to  any  share  of  the  estate  of  the 
testator,  in  case  the  will  should  not  be  established,  he  succeeds 
to  so  much  of  .the  share  as  would  be  distributed  to  him,  not 
exceeding  the  devise  or  bequest  made  to  him  in  the  will,  and 
he  may  recover  the  same  of  the  other  devisees  or  legatees 
named  in  the  Avill,  in  proportion  to  and  out  of  the  parts  devised 
or  bequeathed  to  them.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  232.]  • 

Legislation  §  1283.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  177,  §  6),  and  then  read:  "If  a  witness,  to  whom  any  beneficial  de- 
vise, legacy,  or  gift,  is  made  or  given,  would  have  been  entitled  to 
an_y  share  of  the  estate  of  the  testator,  in  case  the  will  is  not  estab- 
lished, he  succeeds  to  so  much  of  the  share  as  would  be  distributed 
to  him,  not  exceeding  the  devise  or  bequest  made  to  him  in  the  will; 
and  he  may  recover  the  same  of  the  devisees  or  legatees  named  in 
the  will,  in  proportion  to  and  out  of  the  parts  devised  or  bequeathed 
to  them." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  232. 

§  1284.  Will  made  out  of  this  state.  [Repealed  1874;  Code 
Amdts.  1873-74,  p.  232.] 

Legislation  §  1284.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  232. 

§  1285.  Will  made  out  of  state.  No  will  made  out  of  this 
state  is  valid  as  a  will  in  this  state,  unless  executed  according 
to  the  provisions  of  this  chapter,  except  that  a  will  made  in  a 
state  or  country  in  which  the  testator  is  domiciled  at  the  time 
of  his  death,  and  valid  as  a  will  under  the  laws  of  such  state 


451  EXECUTION   AND   REVOCATION    OF    WILLS.  §  1289 

or  country^,  is  valid  in  this  state  so  far  as  the  same  relates  to 
personal  property,  subject,  however,  to  the  provisions  of  sec- 
tion thirteen  hundred  and  thirteen.  [Amendment  approved 
1905;  Stats.  1905,  p.  606.] 

Law   governing:    See  post,  §  1376. 

Probate  of  foreign  wills:    Code   Civ.  Proc,  §  1322. 

Legislation  §  1285.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  555),  and  then  read:  "No  will  or  revocation 
is  valid  unless  executed  either  according  to  the  provisions  of  this 
chapter,  or  according  to  the  law  of  the  place  in  which  it  was  made, 
or  in  which  the  testator  was  at  the  time  domiciled." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  232,  to  read:  "No  will  made 
out  of  this  state  is  valid  as  a  will  in  this  state,  unless  executed  accord- 
ing to  the  provisions  of  this  chapter." 

3.  Amendment  by  Stats.  1901,  p.  402;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  606,  adding  the  exception;  the  code 
commissioner  saying  of  the  addition,  "the  purpose  being  merely  to 
state  what  has  always  been  understood  to  be  the  rule  in  this  state 
respecting  bequests  of  personal  property,  viz.:  that  it  may  be  be- 
queathed in  accordance  with  the  law  of  the  testator's  domicile." 

§1286.  Subsequent  change  of  domicile.  [Repealed  1874; 
Code  Amdts.  1873-74,  p.  232.] 

Legislation  §  1286.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  232. 

§  1287.  Republication  by  codicil.  The  execution  of  a  cod- 
icil, referring  to  a  previous  will,  has  the  effect  to  republish  the 
will,  as  modified  by  the  codicil. 

Legislation  §  1287.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §553;  Payne  v.  Payne,  18  Cal.  291. 

§  1288.  Nuncupative  will,  how  to  be  executed.  A  nun- 
cupative will  is  not  required  to  be  in  writing,  nor  to  de  declared 
or  attested  Avith  any  formalities. 

How  admitted  to  probate:    Code   Civ.  Proc,  §  1344. 
Probating   nuncupative   wills:    See   post,  §§  1290,   1291. 
Legislation  §  1288.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  351. 

§  1289.  Requisites  of  a  valid  nuncupative  will.  To  make  a 
nuncupative  will  valid,  and  to  entitle  it  to  be  admitted  to  pro- 
bate, the  following  requisites  must  be  observed: 

One.  The  estate  bequeathed  must  not  exceed  in  value  the 
sum  of  one  thousand  dollars. 

Two.  Tt  must  be  proved  by  two  witnesses  who  were  present 
at  the  making  thereof,  one  of  v/hom  was  asked  by  the  testator, 
at  the  time,  to  bear  witness  that  such  was  his  will,  or  to  that 
effect. 

Three.  The  decedent  must,  at  the  time,  have  been  in  actual 
military  service  in  the  field,  or  doing  duty  on  shipboard  at  sea, 


§  1303  CIVIL  CODE.  454 

§  1299.  Effect  of  marriage  of  a  man  on  his  will.  If,  after 
making  a  Avill,  the  testator  marries,  and  the  wife  survives  the 
testator,  the  will  is  revoked,  unless  provision  has  been  made 
for  her  by  marriage  contract,  or  unless  she  is  provided  for  in 
the. will,  or  in  such  way  mentioned  therein  as  to  shoAv  an  in- 
tention not  to  make  such  provision ;  and  no  other  evidence  to 
rebut  the  i^resuinption  of  revocation  must  be  received. 

Legislation  §  1299.     Enacted  March   21,  1872;   based   on  Stats.   1850, 

p.  178,  §  12. 

§  1300.     Effect  of  a  marriage  of  a  w^oman  on  her  will.    A 

will,  executed  by  a  woman,  is  revoked  by  her  subsequent  mar- 
riage, and  is  not  revived  by  the  death  of  her  husband. 
[Amendment  approved  1905;  Stats.  1905,  p.  606.] 

Legislation  §  1300.  1.  Enacted  March  21,  1872  (based  on  Stats. 
1850,  p.  178,  §  13),  and  then  read:  "A  will,  executed  by  an  unmarried 
woman,  is  revoked  by  her  subsequent  marriage,  and  is  not  revived  by 
the  death  of  her  husband." 

2.  Amendment  by  Stats..  1901,  p.  402;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  606;  the  code  commissioner  saying, 
"The  purpose  of  the  amendment  is  to  apply  the  same  rule  to  wills 
executed  by  married  and  unmarried  women  with  respect  to  the  revo- 
cation by  subsequent  marriage." 

§  1301,  Contract  of  sale  not  a  revocation.  An  agreement 
made  by  a  testator,  for  the  sale  or  transfer  of  property  dis- 
posed of  by  a  will  previously  made,  does  not  revoke  such  dis- 
posal; but  the  property  passes  by  the  will,  subject  to  the  same 
remedies  on  the  testator's  agreement,  for  a  specific  perform- 
ance or  otherwise  against  the  devisees  or  legatees,  as  might  be 
had  against  the  testator's  successors,  if  the  same  had  passed 
by  succession. 

Legislation  §  1301.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  5G9;  Stats.  1850,  p.   178,  §  14. 

§  1302.  Mortgage  not  a  revocation  of  will.  A  charge  or 
encumbrance  upon  any  estate,  for  the  purpose  of  securing  the 
payment  of  money  or  the  performance  of  any  covenant  or 
agreement,  is  not  a  revocation  of  any  will  relating  to  the  same 
estate  which  was  previously  executed ;  but  the  devise  and 
legacies  therein  contained  must  pass,  subject  to  such  charge 
or  encumbrance. 

Legislation  §  1302.     Enacted  March   21,  1872;   based  on   Stats.   1850. 

p.  178,  §  15. 

§  1303.  Conveyance,  when  not  a  revocation.  A  conveyance, 
settlement,  or  other  act  of  a  testator,  by  which  his  interest  in 
a  thing  previously  disposed  of  by  his  will  is  altered,  but  not 
wholly  divested,  is  not  a  revocation ;  but  the  will  passes  the 
property  which  would  otherwise  devolve  by  succession. 


1300.  Effect  of  Marriage  of  a  Woman  on  Her  Will.  [ 
after  making  a  will,  the  testatrix  marries,  and  the  husband  si 
vives  the  testatrix,  the  will  is  revoked,  unless  provision  h 
been  made  for  him  by  marriage  contract,  or  unless  he  is  pi 
vided  for  in  the  will,  or  in  such  way  mentioned  therein  as 
show  an  intention  not  to  make  such  provision;  and  no  oth 
evidence  to  rebut  the  presumption  of  revocation  can  be  receivei 
(In  effect  1>0  days  from  and  after  April  22,  1919.  Stats.  19 
Chap.    595.)  Civ.    Code,    19 

.    woman  s    vv  ^.^x  w^ 

Revocation    f  ^nU.   ^"^^  ^^    her    1 

Uer,  tne  settle'  ^.g^y    w  ^^^  no  ^^.gce 

•'--.    ^tue    -"^-    «^-    "aie  -en  P^--";e;ocatiou    can    ^e^^^^ 
for    11^  ^  not  to  tna^'=  ^cU    r^  -^qij.        f-gde, 


Chap.  5SS-^ 

\ 


455  EXECUTION    AND   REVOCATION    OF    WILLS.  §  1307 

Revocation:    See  post,  §§  1304,   1305. 
Ademption   of  legacies:    See   post,  §  1351. 

Legislation  §  1303.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  571. 

§  1304.  When  it  is  a  revocation.  If  the  instrument  by 
which  an  alteration  is  made  in  the  testator's  interest  in  a  thing 
previously  disposed  of  by  his  will  expresses  his  intent  that  it 
shall  be  a  revocation,  or  if  it  contains  provisions  wholly  in- 
consistent with  the  terms  and  nature  of  the  testamentary  dis- 
position, it  operates  as  a  revocation  thereof,  unless  such  in- 
consistent provisions  depend  on  a  condition  or  contingency  by 
reason  of  which  they  do  not  take  effect. 

Legislation  §  1304.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  572. 

§  1305.  Revocation  of  codicils.  The  revocation  of  a  will 
revokes  all  its  codicils. 

Legislation  §  1305.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  573. 

§  1306.     After-born    child,    unprovided    for,    to    succeed. 

"Whenever  a  testator  has  a  child  born  after  the  making  of  his 
will,  either  in  his  lifetime  or  after  his  death,  and  dies  leaving 
such  child  unprovided  for  by  any  settlement,  and  neither  pro- 
vided for  nor  in  any  way  mentioned  in  his  will,  the  child 
succeeds  to  the  same  portion  of  the  testator's  real  and  personal 
property  that  he  would  have  succeeded  to  if  the  testator  had 
died  intestate.  But  such  succession  does  not  impair  or  affect 
the  validity  of  any  sale  of  property  made  by  authority  of  such 
will  in  accordance  with  the  provisions  of  section  fifteen  hun- 
dred and  sixty-one  of  the  Code  of  Civil  Procedure.  [Amend- 
ment approved  1905 ;  Stats.  1905,  p.  606.^ 

Succession  by  posthumous  children:  See  ante,  §  698;  post,  §§  1339, 
1403. 

Legislation  §  1306.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  574;  Stats.  1850,  p.  178,  §  16),  the  section  then 
containing  only  the  first  sentence  of  the  amendment  of  1905. 

2.  Amendment  by  Stats.  1901,  p.  402;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  606;  the  code  commissioner  saying, 
"The  change  consists  in  the  addition  of  the  last  sentence,  and  is  in- 
tended to  change  the  rule  of  Smith  v.  Olmstead,  83  Cal.  582." 

§  1307.  Children  or  issue  of  children  of  testator  unprovided 
for  by  his  v^ill.  When  any  testator  omits  to  provide  in  his  will 
for  any  of  his  children,  or  for  the  issue  of  any  deceased  child, 
unless  it  appears  that  such  omission  was  intentional,  such 
child,  or  the  issue  of  such  child,  has  the  same  share  in  the 
estate  of  the  testator  as  if  he  had  died  intestate,  and  succeeds 
thereto  as  provided  in  the  preceding  section.     But  such  sue- 


§  1310  CIVIL  CODE.  456 

cession  does  not  impair  or  affect  the  validity  of  any  sale  of 
property  made  by  authority  of  such  will  in  accordance  with  the 
provisions  of  section  fifteen  hundred  and  sixty-one  of  the  Code 
of  Civil  Procedure.  [Amendment  approved  1905 ;  Stats.  1905, 
p.  606.] 

Legislation  §  1307.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  178,  §  17),  and  then  read:  "When  any  testator  omits  to  provide  in 
his  will  for  any  of  his  children,  or  for  the  issue  of  any  deceased  child, 
unless  it  appears  that  such  omission  was  intentional,  such  child,  or 
the  issue  of  such  child,  must  have  the  same  share  in  the  estate  of  the 
testator  as  if  he  had  died  intestate,  and  succeeds  thereto  as  provided 
in  the  preceding  section." 

2.  Amendment  by  Stats.  1901,  p.  403;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  606.  See  ante,  Legislation  §  1306,  for 
code  commissioner's  note. 

§  1308.  Share  of  after-born  child,  out  of  vvrhat  part  of  estate 
to  be  paid.  When  any  share  of  the  estate  of  a  testator  is 
assigned  to  a  child  born  after  the  making  of  a  will,  or  to  a 
child,  or  the  issue  of  a  child,  omitted  in  the  will,  as  hereinbe- 
fore mentioned,  the  same  must  first  be  taken  from  the  estate 
not  disposed  of  by  the  will,  if  any ;  if  that  is  not  sufficient,  so 
much  as  may  be  necessary  must  be  taken  from  all  the  devisees 
or  legatees,  in  proportion  to  the  value  they  may  respectively 
receive  under  the  will,  unless  the  obvious  intention  of  the  tes- 
tator in  relation  to  some  specific  devise  or  bequest,  or  other 
provision  in  the  will,  would  thereby  be  defeated ;  in  such  case, 
such  specific  devise,  legacy,  or  provision,  may  be  exempted 
from  such  apportionment,  and  a  different  apportionment,  con- 
sistent with  the  intention  of  the  testator,  may  be  adopted. 

Legislation  §  1308.     Enacted  March  21.  1872;   based  on  Stats.   1850, 

p.  178,  §  IS. 

§  1309.  Advancement  during  lifetime  of  testator.  If  such 
children,  or  their  descendants,  so  unprovided  for,  had  an  equal 
proportion  of  the  testator's  estate  bestowed  on  them  in  the 
testator's  lifetime,  by  way  of  advancement,  they  take  nothing 
in  virtue  of  the  provisions  of  the  three  preceding  sections. 

Advancements.     Question    of,    when    raised:    See    Code    Civ.    Proc, 
§  1686. 
Advancements   in   cases  of  intestacy:    See   post,  §§  1395-1399. 
Legislation  §  1309.     Enacted  March  21,  1872;   based  on  Stats.   1850, 
p.  179,  §  19. 

§  1310.  Death  of  devisee,  being'  relation  of  testator,  in  life- 
time of  testator,  leaving  lineal  descendants.  When  any  estate 
is  devised  or  bequeathed  to  any  child,  or  other  relation  of  the 
testator,  and  the  devisee  or  legatee  dies  before  the  testator, 
leaving  lineal  descendants,  such  descendants  take  the  estate 


1310.  Death  of  Devisee,  Being  Relation  of  Testator,  in  Life- 
time of  Testator,  Leaving  Lineal  Descendants.  "When  any  estate 
is  devised  or  bequeathed  to  any  child  or  other  relation  of  the 
testator,  and  the  devisee  or  legatee  dies  before  the  testator, 
leaving  lineal  descendants,  [or  any  such  child  or  other  relation 
Is  named  In  a  will  as  a  devisee  or  legatee  and  Is  dead  at  the 
time  the  will  is  executed,  but  leaves  lineal  descendants  surviving 
the  testator,]  such  descendants  take  the  estate  so  given  by  the 
will  in  the  same  manner  as  the  devisee  or  legatee  would  have 
done  had  he  survived  the  testator.  (In  effect  90  days  from  and 
after  April  29,   1921.     Stats.   1921,   Chap.   116.)  Civ.   Code,  1921. 


1313.     Restriction    on    devises   or    bequests   for  charitable   uses. 

Xo  estate,  real  or  personal,  shall  he  bequeathed  or  devised  to  any 
charitable  or  benevolent  society  or  corporation,  or  to  any  person 
or  persons  in  trust  for  charitable  uses,  except  the  same  be  done 
by  will  duly  executed  at  least  thirty  days  before  the  decease  of 
the  testator;  and  if  so  made  at  least  thirty  days  prior  to  such 
death,  such  devise  or  legacy  and  each  of  them  shall  be  valid; 
provided,  that  no  such  devise  or  bequest  shall  collectively  exceed 
one-third  of  the  estate  of  the  testator,  leaving  legal  heirs,  and  in 
such  case  a  pro  rata  deduction  from  snjch  devises  or  bequests  shall 
be  made  so  as  to  reduce  the  aggregate  thereof  to  one-third  of  such 
estate;  and  all  dispositions  of  property  made  contrary  hereto  shall 
be'  void,  and  go  to  the  residuary  legatee  or  devisee,  next  of  kin, 
or  heirs,  according  to  law;  and  provided,  further,  that  bequests  and 
devises  to  the  state,  or  to  any  state  institution,  or  for  the  usie  or 
benefit  of  the  state  or  any  state  institution,  [or  to  any  educational 
institution  which  Is  exempt  from  taxation  under  section  one  a  of 
article  thirteen  of  the  constitution  of  the  State  of  California,  or  for 
the  use  or  benefit  of  any  such  educational  Institution,!  are  excepted 
from  the  restrictions  of  this  section;  I  provided,  however,  that 
nothing  in  this  section  contained  shall  apply  to  bequests  or  devises 
made  by  will  executed  at  least  six  months  prior  to  the  death  of  a 
testator  who  leaves  no  parent,  husband,  wife,  child  or  grandchild, 
or  when  all  of  such  heirs  shall  have  by  writing,  executed  at  least 
six  months  prior  to  his  death,  waived  the  restrictions  contained 
herelnl.  (In  effect  90  days  from  and  after  April  22,  1919.  Stats. 
1919,  222.)  Civil  Code,   1919. 


1313.  Restriction  on  Devises  or  Bequests  for  Charitable 
Uses.  No  estate,  real  or  personal,  shall  be  bequeathed  or  devised 
to  any  charitable  or  benevolent  society  or  corporation,  or  to  any 
person  or  persons  in  trust  for  charitable  uses,  except  the  same 
be  done  by  will  duly  executed  at  least  thirty  days  before  the 
deceasre  of  the  testator;  and  if  so  made  at  least  thiity  days 
prior  to  such  death,  such  devise  or  legacy  and  each  of  them 
shall  be  valid;  provided,  that  no  such  [devise  or  bequest]  shall 
collectively  exceed  one-third  of  the  estate  of  the  testator,  leav- 
ing legal  heirs,  and  in  such  case  a  pro  rata  deduction  from  such 
devises  or  bequests  shall  be  made  so  as  to  reduce  the  aggre- 
gate thereof  to  one-third  of  such  estate;  and  all  dispositions 
of  property  made  contrai-y  hereto  shall  be  void,  and  go  to  the 
residuary  legatee  or  devisee,  next  of  kin,  or  heirs,  according 
to  law[;  and  provided  further,  that  bequests  and  devises  to  the 
state,  or  to  any  state  institution,  or  for  the  use  or  benefit  of 
the  state  or  any  state  Institution,  are  excepted  from  the  re- 
strictions of  this  section].  (In  effect  90  days  from  and  after 
April   27,    1017.     Stats.    1917,    Chap.    179.)  Civ.    Code,   1917. 


457  EXECUTION    AND    REVOCATION    OF    WILLS.  §  1313 

SO  given  by  the  will,  in  the  same  manner  as  the  devisee  or 
legatee  would  have  done  had  he  survived  the  testator. 
[Amendment  approved  1905;  Stats.  1905,  p.  150.] 

"By  right  of  representation."     Term  defined:  Post,  §  1403. 

Death    of    legatee.     Legacy   fails    when:    See    post,  §§  1343,    1344. 

Legislation  §  1310.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  17&,  §  20),  and  then  read:  "When  any  estate  is  devised  to  any  child, 
or  other  relation  of  the  testator,  and  the  devisee  dies  before  the 
testator,  leaving  lineal  descendants,  such  descendants  take  the  estate 
so  given  by  the  will,  in  the  same  manner  as  the  devisee  would  have 
done  had  he  survived  the  testator." 

2.  Amended  by  Stats.  1905,  p.  150. 

§  1311.  Devises  of  land,  how  construed.  Every  devise  of 
land  in  any  will  conveys  all  the  estate  of  the  devisor  therein, 
which  he  could  lawfully  devise,  unless  it  clearly  appears  by 
the  will  that  he  intended  to  convey  a  less  estate. 

Conveyance,    effect    of:    See    ante,  §§  1303,    1304. 
What  passes  by  devise:    See   post,  §  1329. 

Legislation  §  1311.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  179, §  21. 

§  1312.  Will  to  pass  rights  acquired  after  the  making- 
thereof.  Any  estate,  right,  or  interest  in  lands  acquired  by 
the  testator  after  the  making  of  his  will,  passes  thereby  and  in 
like  manner  as  if  title  thereto  was  vested  in  him  at  the  time 
of  making  the  will,  unless  the  contrary  manifestly  appears  by 
the  will  to  have  been  the  intention  of  the  testator.  Every  will 
made  in  express  terms,  devising,  or  in  any  other  terms  denot- 
ing the  intent  of  the  testator  to  devise  all  the  real  estate  of 
such  testator,  passes  all  the  real  estate  which  such  testator  was 
entitled  to  devise  at  the  time  of  his  decease.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  233.] 

Testamentary  dispositions  vest  at  testator's  death:  Post,  §  1341. 
Legislation  §  1312.     1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  179,  §22;  Stats.  1865-66,  p.  381,  §  1),  and  differed  from  the  amend- 
ment of   187.3-74,  in  having,  in   the  first  sentence,  the  words  "if  it" 
instead  of  "unless  the  contrary." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  233. 

§  1313.  Restriction  on  devise  for  charitable  uses.  No  es- 
tate, real  or  personal,  shall  be  bequeathed  or  devised  to  any 
charitable  or  benevolent  society  or  corporation,  or  to  any  per- 
son or  persons  in  trust  for  charitable  uses,  except  the  same 
be  done  by  will  duly  executed  at  least  thirty  days  before  the 
decease  of  the  testator;  and  if  so  made,  at  least  thirty  days 
prior  to  such  death  such  devise  or  legacy  and  each  of  them 
shall  be  valid ;  provided,  that  no  such  devises  or  bequests  shall 
collectively  exceed  one  third  of  the  estate  of  the  testator, 
leaving  legal  heirs,  and  in  such  case  a  pro  rata  deduction  from 


§  1317  crv'iL  CODE.  458 

such  devises  or  bequests  shall  be  made  so  as  to  reduce  the 
aggregate  thereof  to  one  third  of  such  estate ;  and  all  disposi- 
tions of  property  made  contrary  hereto  shall  be  void,  and  go 
to  the  residuary  legatee  or  devisee,  next  of  kin,  or  heirs,  ac- 
cording to  law. 

CharitaWe  uses  permitted  iDy  the  codes:  See  ante,  §§  847  et  seq. 

Legislation  §  1313.     Added  by  Code  Anidts.  1873-74,  p.  275. 

CHAPTER  II. 

Interpretation    of   Wills,    and   Effect   of   Various  Provisions. 

§   1317.  Testator's  intention   to  be   carried  out. 

§  1318.  Intention   to   be    ascertained    from   the   will. 

§   1319.  Eules    of    interpretation. 

§  1320.  Several   instruments   are   to    be   taken   together. 

§   1321.  Harmonizing    various    parts. 

§   1322.  In  what  case  devise  not  affected. 

§   1323.  When    ambiguous    or    doubtful. 

§   1324.  Words    taken    in    ordinary    sense. 

§   1325.  Words   to   receive    an    operative    construction. 

§  1326.  Intestacy    to    be    avoided. 

§  1327.  Effect   of   technical   words. 

§  1328.  Technical   words    not   necessary. 

§   1329.  Certain    words    not    necessary    to    pass    a    fee. 

§   1330.  Power  to  devise,  how  executed  by  terms  of  will. 

§   1331.  Devise  or  bequest  of  all  real  or  all  personal  property,  or  both. 

§   1332.  Eesiduary    clause. 

§  1333.  Same. 

§  1334.  "Heirs,"    "relatives,"    "issue,"    "descendants,"    etc. 

§   1335.  Words    of    donation    and    of    limitation. 

§   1336.  To  what  time  words  refer. 

§  1337.  Devise  or  bequest  to   a  class. 

§   1338.  When    conversion   takes   effect. 

§  133&.  When    child   born    after    testator's   death    takes    under   will. 

§  1340.  Mistakes   and    omissions. 

§   1341.  When   devises  and  bequests  vest. 

§   1342.  When   cannot  be   divested. 

§   1343.  Death    of   devisee   or    legatee. 

§   1344.  Interests    in    remainder    are    not    affected. 

§  1345.  Conditional   devises    and   bequests. 

§  1346.  Condition   precedent,   what. 

§  1347.  Effect    of    condition    precedent. 

§  1348.  Conditions    precedent,    when    deemed    performed. 

§  1349.  Conditions   subsequent,   what. 

§  1350.  Devisees,    etc.,    take    as    tenants    in    common. 

§   1351.  Advancements,    when     ademptions. 

§  1317.  Testator's  intention  to  be  carried  out.  A  will  is  to 
be  construed  according  to  the  intention  of  the  testator.  Where 
his  intention  cannot  have  effect  to  its  full  extent,  it  must  have 
effect  as  far  as  possible. 

Construction  of  will  made  before  code  went  into  effect  not  affected 
by  code:   Post,  §  1375. 

Construction  of  foreign  will:    Post,  §  1376. 


459  INTERPRETATION   OP  WILLS,  ETC.  §  1324 

Declarations   of   testator   as   evidence:    See   post,  §  1318. 
Intention  of  testator:   See  post,  §  1370. 

Legislation  §  1317.     Enacted   March   21,   1872;    based   on   Kidwell   v. 
Brummagim,  32  Cal.  436. 

§  1318.  Intention  to  be  ascertained  from  the  will.  In  case 
of  uncertainty  arising  upon  the  face  of  a  will,  as  to  the  appli- 
cation of  any  of  its  provisions,  the  testator's  intention  is  to  be 
ascertained  from  the  words  of  the  will,  taking  into  view  the 
circumstances  under  which  it  was  made,  exclusive  of  his  oral 
declarations. 

Testator's  declarations:  See  post,  §  1340. 
Evidence  of  intention:  See  post,  §  1340. 
Legislation  §  1318.     Enacted  March  21,  1872. 

§  1319.  Rules  of  interpretation.  In  interpreting  a  will,  sub- 
ject to  the  law  of  this  state,  the  rules  prescribed  by  the  follow- 
ing sections  of  this  chapter  are  to  be  observed,  unless  an  in- 
tention to  the  contrary  clearly  appears. 

Legislation  §  1319.     Enacted  March  21,  1872. 

§  1320.     Several  instruments  are  to  be  taken  tog^ether.     Sev- 
eral testamentary  instruments,  executed  by  the  same  testator, 
are  to  be  taken  and  construed  together  as  one  instrument. 
Legislation  §  1320.     Enacted  March  21,  1872. 

§  1321.     Harmonizing'  various  parts.     All  the  parts  of  a  will 
are  to  be  construed  in  relation  to  each  other,  and  so  as,  if 
possible,  to  form  one  consistent  whole ;  but  where  several  parts 
are  absolutely  irreconcilable,  the  latter  must  prevail. 
Legislation  §  1321.     Enacted  March  21,  1872. 

§  1322.  In  what  case  devise  not  affected.  A  clear  and  dis- 
tinct devise  or  bequest  cannot  be  affected  by  any  reasons 
assigned  therefor,  or  by  any  other  words  not  equally  clear  and 
distinct,  or  by  inference  or  argument  from  other  parts  of  the 
Avill,  or  by  an  inaccurate  recital  of  or  reference  to  its  contents 
in  another  part  of  the  will. 

Intention  of  testator:    See   ante,  §§  1317   et   seq. 
Legislation  §  1322.     Enacted  March  21,  1872. 

§  1323.  When  ambiguous  or  doubtful.  Where  the  meaning 
of  any  part  of  a  Avill  is  ambiguous  or  doubtful,  it  may  be  ex- 
plained by  any  refei'cnce  thereto,  or  recital  thereof,  in  another 
part  of  the  Avill. 

Legislation  §  1323.     Enacted  March  21,  1872. 

§  1324.  Words  taken  in  ordinary  sense.  The  words  of  a 
will  are  to  be  taken  in  their  ordinary  and  grammatical  sense, 


§  1330  CIVIL  CODE.  460 

unless  a  clear  intention  to  use  them  in  another  sense  can  be 
collected,  and  that  other  can  be  ascertained. 
Legislation  §  1324.     Enacted  March  21,  1872, 

§  1325.    Words  to  receive  an  operative  construction.    The 

words  of  a  will  are  to  receive  an  interpretation  Avhich  will 
give  to  every  expression  some  effect,  rather  than  one  which 
will  render  any  of  the  expressions  inoperative. 

Haxmonizing  various  parts:  See  ante,  §  1321. 

Legislation  §  1325.     Enacted  March  21,  1872. 

§  1326.  Intestacy  to  be  avoided.  Of  two  modes  of  inter- 
preting a  will,  that  is  to  be  preferred  which  will  prevent  a 
total  intestacy. 

Legislation  §  1326.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  403;  unconstitutional.  See  note, 
§  4,  ante. 

§  1327.     Effect  of  technical  words.     Technical  words  in  a 
will  are  to  be  taken  in  their  technical  sense,  unless  the  context 
clearly  indicates  a  contrary  intention,  or  unless  it  satisfactorily 
appears  that  the  will  Avas  draAvn  solely  by  the  testator,  and 
that  he  was  unacquainted  Avith  such  technical  sense.      [Amend- 
ment approved  1905;  Stats.  1905,  p.  606.]  ,^ 
Technical  words,   how   construed:    See   ante,  §  13;    post,  §  1645. 
Legislation  §  1327.     1.  Enacted  March  21. 1872,  and  then  read:  "Tech- 
nical words  in  a  will  are  to  be  taken  in  their  technical  sense,  unlesf 
the  context  clearly  indicates  a  contrary  intention." 

2.  Amendment  by  Stats.  1901,  p.  403;  unconstitutional.  See  note 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  606;  the  code  commissioner  saying 
of  the  addition,  that  it  "provides  that  the  words  in  a  will  need  not  be 
taken  in  a  technical  sense,  if  it  appears  to  have  been  drawn  by  the 
testator,  and  that  he  was  unacquainted  with  such  sense." 

§  1328.  Technical  words  not  necessary.  Technical  words 
are  not  necessary  to  give  effect  to  any  species  of  disposition 
by  a  will. 

Legislation  §  1328.     Enacted  Marc'j  21,  1872. 

§  1329.  Certain  words  not  necessary  to  pass  a  fee.  The 
term  "heirs,"  or  other  words  of  inheritance,  are  not  requisite 
to  devise  a  fee,  and  a  devise  of  real  property  passes  all  the 
estate  of  the  testator,  unless  otherwise  limited. 

Words  of  succession  not    necessary    to  transfer    a  fee:    See   ante, 
§  1072. 
What  passes  by  devise:    See   ante,  §  1311. 
Legislation  §  1329.     Enacted  March  21,  1872. 

§  1330.     Power  to  devise,  how  executed  by  terms  of  will. 

Real  or  personal  property  embraced  in  a  power  to  devise. 


461  '  INTERPRETATION  OP  WILLS,  ETC.  §  1334 

passes  by  a  will  purporting  to  devise  all  the  real  or  personal 
property  of  the  testator. 

Legislation  §  1330.     Enacted  March  21,  1872. 

§  1331.  Devise  or  bequest  of  all  real  or  all  personal  prop- 
erty, or  both.  A  devise  or  bequest  of  all  the  testator's  real  or 
personal  property,  in  express  terms,  or  in  any  other  terms  de- 
noting his  intent  to  dispose  of  all  his  real  or  personal  property, 
passes  all  the  real  or  personal  property  which  he  was  entitled 
to  dispose  of  by  will  at  the  time  of  his  death. 

Construction   of   devise:    See   ante,  §§  1311,    1312. 
General   and  specific  legacies:    See   post,  §  1357. 
Legislation  §  1331.     Enacted  March  21,  1872. 

§  1332.  Residuary  clause.  A  devise  of  the  residue  of  the 
testator's  real  property  passes  all  the  real  property  which  he 
was  entitled  to  devise  at  the  time  of  his  death,  not  otherwise 
effectually  devised  by  his  will.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  234.] 

Legislation  §  1332.     1,  Enacted  March  21,  1872,   and  then  read:   "A 
devise  of  the  residue  of  the  testator's  estate,  property,  or  real  prop- 
erty, passes  all  the  real  property  which  he  was  entitled  to  devise  at 
the  time  of  his  death,  not  otherwise  effectually  devised  by  his  will." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  234. 

§  1333.  Same.  A  bequest  of  the  residue  of  the  testator's 
personal  property,  passes  all  the  personal  property  Avhich  he 
was  entitled  to  bequeath  at  the  time  of  his  death,  not  other- 
wise effectually  bequeathed  by  his  will.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  234.] 

Legislation  §  1333.  1.  Enacted  March  21,  1872,  and  then  read:  "A 
bequest  of  the  residue  of  the  testator's  estate,  property,  or  personal 
property,  passes  all  the  personal  property  which  he  was  entitled  to 
bequeath  at  the  time  of  his  death,  not  otherwise  effectually  bequeathed 
by  his  will." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  234. 

§  1334.     ' '  Heirs, "  "  relatives, "  "  issue, "  "  descendants, ' '  etc. 

A  testamentary  disposition  to  "heirs,"  ''relations,"  'Inearest 
relations,"  "representatives,"  "legal  representatives,"  or 
"personal  representatives,"  or  "family,"  "issue,"  "descend- 
ants," "nearest"  or  "next  of  kin"  of  any  person,  without 
other  words  of  qualification,  and  when  the  terms  are  used  as 
words  of  donation,  and  not  of  limitation,  vests  the  property 
in  those  who  would  be  entitled  to  succeed  to  the  property  of 
such  person,  according  to  the  provisions  of  the  title  on  succes- 
sion, in  this  code. 

"Issue,"    interpretation    of:    See    ante,  §  1071. 

Legislation  §  1334.  Enacted  March  21,  1872;  based  on  Norris  v. 
Hensley,  27  Cal.  3&. 


§  1340  CIVIL  CODE.  •  462 

§  1335.  Words  of  donation  and  of  limitation.  The  terms 
mentioned  in  the  last  section  are  nsed  as  words  of  donation, 
and  not  of  limitation,  when  the  property  is  given  to  the  person 
so  designated,  directly,  and  not  as  a  qualification  of  an  estate 
given  to  the  ancestor  of  such  person. 

Rule  in  Shelley's  Case  not  adopted  in  this  state:   See   ante,  §  779. 
Legislation  §  1335.     Enacted  March  21,  1872. 

§  1336.     To  what  time  w^ords  refer.     Words  in  a  will  refer- 
ring to  death  or  survivorship,  simply,  relate  to  the  time  of  the 
testator's  death,  unless  possession  is  actually  postponed,  when 
they  must  be  referred  to  the  time  of  .possession. 
Legislation  §  1336.     Enacted  March  21,  1872. 

§  1337.  Devise  or  bequest  to  a  class.  A  testamentary  dis- 
position to  a  class  includes  every  person  answering  the  descrip- 
tion at  the  testator's  death;  but  when  the  possession  is  post- 
poned to  a  future  period,  it  includes  also  all  persons  coming 
within  the  description  before  the  time  to  which  possession  is 
postponed. 

Posthumous  children:    See  post,  §  1339. 
Legislation  §  1337.     Enacted  March  21,  1872. 

§  1338.  When  conversion  takes  effect.  When  a  will  directs 
the  conversion  of  real  property  into  money,  such  property  and 
all  its  proceeds  must  be  deemed  personal  property  from  the 
time  of  the  testator's  death. 

Legislation  §  1338.     Enacted  March  21,  1872. 

§  1339.  When  child  born  after  testator's  death  takes  under 
will.  A  child  conceived  before,  but  not  born  until  after  a 
testator's  death,  or  any  other  period  when  a  disposition  to  a 
class  vests  in  right  or  in  possession,  takes,  if  answering  to  the 
description  of  the  class. 

Child   en  ventre   sa  mere:    See   ante,  §  29. 

Succession    by    posthumous    children:   "See    ante,  §§  698,    1306;    post, 
§  1403. 

Legislation  §  1339.     Enacted  March  21,  1872. 

§  1340.  Mistakes  and  omissions.  When,  applying  a  will,  it 
is  found  that  there  is  an  imperfect  description,  or  that  no  per- 
son or  property  exactly  answers  the  description,  mistakes  and 
omissions  must  be  corrected,  if  the  error  appears  from  the  con- 
text of  the  will  or  from  extrinsic  evidence ;  but  evidence  of  the 
declarations  of  the  testator  as  to  his  intentions  cannot  be 
received. 

Evidence   of   intention:    See   ante,  §  1318. 
Testator's  declarations:  See  ante,  §  131S. 
Legislation  §  1340.     Enacted  March  21,  1872. 


463  INTERPRETATION  OF  WILLS,  ETC.  §  1347 

§  1341.     When  devises  and  bequests  vest.     Testamentary  dis- 
positions, including  devises  and  bequests  to  a  person  on  attain- 
ing majority,  are  presumed  to  vest  at  the  testator's  death. 
Legislation  §  1341.     Enacted  March  21,  1872. 

§  1342.  When  cannot  be  divested.  A  testamentary  disposi- 
tion, when  vested,  cannot  be  divested  unless  upon  the  occur- 
rence of  the  precise  contingency  prescribed  by  the  testator  for 
that  purpose. 

Legislation  §  1342.     Enacted  March  21,  1872. 

§  1343.  Death  of  devisee  or  legfatee.  If  a  devisee  or  legatee 
dies  during  the  lifetime  of  the  testator,  the  testamentary  dis- 
position to  him  fails,  unless  an  intention  appears  to  substitute 
some  other  in  his  place,  except  as  provided  in  section  thirteen 
hundred  and  ten.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  234.] 

Legislation  §  1343.     1.  Enacted  March  21,  1872,  and  then  ended  with 
the  words  "to  substitute  some  other  in  his  place." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  234,  adding  the  final  excep- 
tion. 

3.  Amendment   by   Stats.   1901,   p.   403;   unconstitutional.     See   note, 
§  4,  ante. 

§  1344.  Interests  in  remainder  are  not  affected.  The  death 
of  a  devisee  or  legatee  of  a  limited  interest  before  the  testator's 
death  does  not  defeat  the  interests  of  persons  in  remainder, 
who  survive  the  testator. 

Legislation  §  1344.     Enacted  March  21,  1872. 

§  1345.     Conditional   devises   and   bequests.     A   conditional 

disposition  is  one  which  depends  upon  the  occurrence  of  some 
uncertain  event,  by  which  it  is  either  to  take  effect  or  be 
defeated. 

Conditions  of  ownership:  See  ante,  §§  707  et  seq. 
Conditional  obligations:    See  post,  §§  1434  et  seq. 
Legislation  §  1345.     Enacted  March  21,  1872. 

§  1346.  Condition  precedent,  what.  A  condition  precedent 
in  a  will  is  one  which  is  required  to  be  fulfilled  before  a  particu- 
lar disposition  takes  etfect. 

Conditions  precedent,   what  are:    See   ante,  §  708;    post,  §  1436. 
Legislation  §  1346.     Enacted  March  21,  1872. 

§  1347.  Effect  of  condition  precedent.  Where  a  testa- 
mentary disposition  is  made  upon  a  condition  precedent, 
nothing  vests  until  the  condition  is  fulfilled,  except  where 
such  fulfillment  is  impossible,  in  Avhich  case  the  disposition 
vests,  unless  the  condition  was  the  sole  motive  thereof,  and 


§  1351  CIVIL  CODE.  464 

the  impossibility  was  unknown  to  the  testator,  or  arose  from 
an  unavoidable  event  subsequent  to  the  execution  of  the  will. 
Legislation  §  1347.     Enacted   March   21,  1872. 

§  1348.     Conditions  precedent,  when  deemed  performed.    A 

condition  precedent  in  a  will  is  to  be  deemed  performed  when 
the  testator's  intention  has  been  substantially,  though  not  lit- 
erally, complied  with. 

Legislation  §  1348.     Enacted   March   21,   1872. 

§  1349.  Conditions  subsequent,  what.  A  condition  subse- 
quent is  where  an  estate  or  interest  is  so  given  as  to  vest  im- 
mediately, subject  only  to  be  divested  by  some  subsequent  act 
or  event. 

Conditions   subsequent:    See    ante,  §  708;    post,  §  1438. 
Legislation  §  1349.     Enacted  March  21,  1872. 

§  1350.  Devisees,  etc.,  take  as  tenants  in  common.  A  devise 
or  legacy  given  to  more  than  one  person  vests  in  them  as  own- 
ers in  common. 

Legislation  §  1350.     Enacted  March  21,  1872. 

§  1351.     Advancements,   when   ademptions.     Advancements 
or  gifts  are  not  to  be  taken  as  ademptions  of  general  legacies, 
unless  such  intention  is  expressed  by  the  testator  in  writing. 
Advancement   in   cases   of   intestacy:    See   post,  §§  1395-1399. 
Legislation  §  1351.     Enacted  March  21,  1872.     The  code  commission- 
ers say:  "The  preceding  chapter  is,  in  a  modified  form,  taken  from  the 
New  York  Civil  Code,  from  §§  579  to  613,  inclusive.     We'  have  had  no 
general  rules  of  construction  adopted  by  our  legislature,  and  after  the 
preparation  of   the  first   chapter   of  this  title  it   was   thought  best  to 
adopt   also   these   rules   of   construction.     The   usual    course   of   noting 
each   section  from  which  they  are  taken,  for  economy  in  printing,  is 
departed  from  in  this  chapter." 


465  GENERAL   PROVISIONS    RELATING   TO    WILLS.  §  1358 

CHAPTER  III. 

General   Provisions   Relating   to   Wills. 

§  1357.  Nature  and  designation   of  legacies. 

§   1358.  Estate   chargeable   in   case   of   intestacy. 

§   1359.  Order  of  resort  to  estate  for  debts. 

§   1360.  Same    for    legacies. 

§  13-61.  Legacies,  how  charged  with  debts. 

§   1362.  Abatement. 

§   1363.  Specific   devises   and  legacies. 

§  1364.  Heir's    conveyance    good,    unless    will    is    proved    within    four 

years. 

§  1365.  Possession   of  legatees. 

§  1366.  Bequest  of  interest. 

§  1367.  Satisfaction. 

§   1368.  Legacies,  when  due. 

§   1369.  Interest. 

§   1370.  Construction  of  these  rules. 

§  1371.  Executor   according  to   the   tenor. 

§  1372.  Power  given  executor  to  appoint  is  invalid. 

§   1373.  Executor    not    to    act    till    qualified. 

§   1374.  Provisions    as    to    revocations. 

§   1375.  Execution  and   construction   of  prior  wills  not  affected. 

§  1376.  Law   governing  interpretation. 

§   1377.  Liability  of  beneficiaries  for  testator's  obligations. 

§  1357.  Nature  and  designation  of  legacies.  Legacies  are 
distinguished  and  designated,  according  to  their  nature,  as 
follows : 

1.  A  legacy  of  a  particular  thing,  specified  and  distinguished 
from  all  others  of  the  same  kind  belonging  to  the  testator,  is 
specific ;  if  such  legacy  fails,  resort  cannot  be  had  to  the  other 
property  of  the  testator ; 

2.  A  legacy  is  demonstrative  when  the  particular  fund  or 
personal  property  is  pointed  out  from  which  it  is  to  be  taken 
or  paid ;  if  such  fund  or  property  fails,  in  whole  or  in  part, 
resort  may  be  had  to  the  general  assets,  as  in  case  of  a  general 
legacy ; 

3.  All  annuity  is  a  bequest  of  certain  specified  sums  period- 
ically ;  if  the  fund  or  property  out  of  which  they  are  payable 
fails,  resort  may  be  had  to  the  general  assets,  as  in  case  of  a 
general  legacy ; 

4.  A  residuary  legacy  embraces  only  that  which  remains 
after  all  the  bequests  of  the  will  are  discharged ; 

5.  All  other  legacies  are  general  legacies. 

Annuities    commence   at   the   testator's   death:    Post,  §  1368. 
General    legacies,    payable    when:    See    post,  §  1368. 
Legislation  §  1357.     Enacted  March  21,  1872. 

§  1358.  Estate  chargeable  in  case  of  intestacy.  When  a 
person  dies  intestate,  all  his  property,  real  and  personal,  with- 

Civ.  Code — 30 


§  1360  CIVIL  CODE.  466 

out  any  distinction  between  them,  is  chargeable  with  the  pay- 
ment of  his  debts,  except  as  otherwise  provided  in  this  code 
and  the  Code  of  Civil  Procedure.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  234.] 

All  property   chargeable  with   debts:    Code    Civ.   Proc,  §  1516. 

Debts  to  be  paid  from  what:  Code  Civ.  Proc,  §§  1516,  1560,  1562 
et   seq.;   post,  §  1359. 

Order   of  payment   of  debts:    Code    Civ.   Proc,  §  1643. 

Provision  for  support  of  the  family:  *Code  Civ.  Proc,  §§  1464  et  seq. 

Legislation  §  1358.  1.  Enacted  March  21,  1872,  and  then  read: 
"When  a  person  dies  intestate,  his  property,  except  such  as  is  other- 
wise disposed  of  under  this  code,  and  under  chapteT  V,  of  title  XI, 
of  part  III,  of  the  Code  of  Civil  Procedure,  and  exempt  from  execution 
therein,  is  to  be  resorted  to,  in  the  following  order,  in  payment  of 
debts:  1.  Personal  property;  2.  Eeal  property,  other  than  estates  of 
freehold;  3.  Estates  of  freehold." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  234. 

§  1359.     Order  of  resort  to  estate  for  debts.     The  property 

of  a  testator,  except  as  otherwise  specially  provided  in  this 
code  and  the  Code  of  Civil  Procedure,  must  be  resorted  to  for 
the  payment  of  debts,  in  the  following  order : 

One.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  debts ; 

Two.     Property  not  disposed  of  by  the  will ; 
Three.     Property  which  is  devised  or  bequeathed  to  a  resid- 
uary legatee ; 

Four.  Property  which  is  not  specifically  devised  or  be- 
queathed; and. 

Five.  All  other  property  ratably.  Before  any  debts  are 
paid,  the  expenses  of  the  administration,  and  the  allowance 
to  the  family,  must  be  paid  or  provided  for.  [Amendment 
approved  1874  ;  Code  Amdts.  1873-74,  p.  234.] 

Legislation  §  1359.  1.  Enacted  March  21,  1872  (based  on  Cal.  Code 
Civ.  Proc,  tit.  xi,  c.  vii),  and  then  read:  "The  property  of  a  testator, 
with  the  exception  specified  in  the  last  section,  is  to  be  resorted  to, 
in  the  following  order,  for  the  payment  of  debts  and  legacies:  1.  Per- 
sonal property,  excepting  such  as  is  expressly  exempted  in  the  will;. 
2.  Eeal  property  expressly  devised  to  pay  debts  or  legacies,  where  the 
personal  property  is  exempted  in  the  will,  or  where  the  personal  prop- 
erty which  is  not  exempted  is  insufficient;  3.  Eeal  property  which  is 
not  effectually  devised;  4.  Property,  real  or  personal,  charged  with 
debts  or  legacies;  but  though  real  property  is  charged  with  the  pay- 
ment of  legacies,  the  personal  property  is  not  to  be  exonerated;  5.  The 
following  property,  ratably;  real  property,  devised  without  being 
charged  with  debts  or  legacies,  and  specific  and  demonstrative  legacies; 
6.  Personal  property  expressly  exempted  in  the  will." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  234. 

§  1360.  Same  for  legacies.  The  property  of  a  testator,  ex- 
cept as  otherwise  specially  provided  in  this  code  and  the  Code 
of  Civil  Procedure,  must  be  resorted  to  for  the  payment  of 
legacies,  in  the  following  order : 


467  GENERAL    PROVISIONS    RELATING    TO    WILLS.  §  1364 

One.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  legacies. 

Two.     Property  not  disposed  of  by  the  will. 

Three.  Property  which  is  devised  or  bequeathed  to  a  residu- 
ary legatee. 

Four.  Property  which  is  specifically  devised  or  bequeathed. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  235.] 

Pajrment  of  legacies.  When  legacies  are  due:  Post,  §  1368.  When 
may  be  paid:    Code  Civ.  Proc,  §§  1658  et  seq. 

Legacies  liable  for  debts:    See   Code   Civ.  Proc,  §§  1563   et   seq. 

Legislation  §  1360.  1.  Enacted  March  21,  1872,  and  then  read:  "In 
the  application  of  the  personal  property  of  a  decedent  to  the'  payment 
of  debts,  legacies  must  be  charged  in  the  following  order,  unless  a 
different  intention  is  expressed  in  the  will:  1.  Eesiduary  legacies; 
2.  General  legacies;  3.  Legacies  given  for  a  valuable  consideration, 
or  for  the  relinquishment  of  some  right  or  interest;  4.  Specific  and 
demonstrative  legacies." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  235. 

3.  Amendment  by  Stats.  1901,  p.  403;  unconstitutional.  See  note,  §  4, 
ante. 

§  1361.     Legacies,  how  charged  with  debts.     Legacies  to  hus- 
band, widow,  or  kindred  of  any  class  are  chargeable  only  after 
legacies  to  persons  not  related  to  the  testator. 
Legislation  §  1361.     Enacted  March  21,  1872. 

§  1362.  Abatement.  Abatement  takes  place  in  any  class 
only  as  between  legacies  of  that  class,  unless  a  different  inten- 
tion is  expressed  in  the  will. 

Legislation  §  1362.     Enacted  March  21,  1872. 

§  1363.  Specific  devises  and  legacies.  In  a  specific  devise 
or  legacy,  the  title  passes  by  the  will,  but  possession  can  only 
be  obtained  from  the  personal  representative;  and  he  may  be 
authorized  by  the  superior  court  to  sell  the  property  devised 
and  bequeathed  in  the  cases  herein  provided.  [Amendment 
approved  1880;  Code  Amdts.  1880,  p.  8.] 

How  title  passes  in  cases  of  intestacy:   See  post,  §  1386. 

Legislation  §  1363.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1880,  p.  8,  substituting  "superior  court" 
for  "judge  of  the  probate  court." 

§  1364.  Heir's  conveyance  good,  unless  will  is  proved  within 
four  years.  The  rights  of  a  purchaser  or  encumbrancer 
of  real  property,  in  good  faith  and  for  value,  derived  from  any 
person  claiming  the  same  by  succession,  are  not  imi)aired  by 
any  devise  made  by  the  decedent  from  whom  succession  is 
claimed,  unless  within  four  years  after  the  devisor's  death, 
the  instrument  containing  such  devise  is  duly  proved  as  a  will, 
and  recorded  in  the  office  of  the  clerk  of  the  superior  court  hav- 
ing jurisdiction  thereof,  or  written  notice  of  such  devise  is 


§  1368  CIVIL  CODE.  468 

filed  with  the  clerk  of  the  county  where  the  real  property  is 
situated.     [Amendment  approved  1905;  Stats.  1905,  p.  606.] 
Recording  will:  See  Code  Civ.  Proc,  §§  1314,  1318. 
Legislation  §  1364.    1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  621),  and  then  read:  "The  rights  of  a  purchaser  or  en- 
cumbrancer of  real  property,  in  good  faith  and  for  value,  derived  from 
any  person  claiming  the  same  by  succession,  are  not  impaired  by  any  de- 
vise made  by  the  decedent  from  whom  succession  is  claimed,  unless  the 
instrument  containing  such  devise  is  duly  proved  as  a  will,  and  recorded 
in   the    oflEice    of   the    clerk    of   the   probate    court    having   jurisdiction 
thereof,  or  unless  written  notice  of  such  devise  is  filed  with  the  clerk 
of  the  county  where  the   real   property  is  situated,   within  four   years 
after  the  devisor's  death." 

2.  Amended  by  Code  Amdts.  1880,  p.  8,  substituting  "superior  court" 
for  "probate  court." 

3.  Amendment  by  Stats.   1901,   p.   404;   unconstitutional:     See   note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  606. 

§  1365.     Possession  of  legatees.     Where  specific  legacies  are 

for  life  only,  the  first  legatee  must  sign  and  deliver  to  the 
second  legatee,  or,  if  there  is  none,  to  the  personal  representa- 
tive, an  inventory  of  the  property,  expressing  that  the  same 
is  in  his  custody  for  life  only,  and  that,  on  his  decease,  it  is  to 
be  delivered  and  to  remain  to  the  use  and  for  the  benefit  of 
the  second  legatee,  or  to  the  personal  representative,  as  the 
case  may  be. 

Legislation  §  1365.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  622. 

§  1366.  Bequest  of  interest.  In  case  of  a  bequest  of  the 
interest  or  income  of  a  certain  sum  or  fund,  the  income  accrues 
from  the  testator's  death. 

Annuities  conunence  at  testator's  death:   Post,  §  1368. 
Accumulations:  See  ante,  §§  722  et  seq. 

Legislation  §  1366.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  623. 

§  1367.     Satisfaction.     A  legacy,  or  a  gift  in  contemplation, 
fear,  or  peril  of  death,  may  be  satisfied  before  death.     [Amend- 
ment apf)roved  1874;  Code  Amdts.  1873-74,  p.  235.] 
Legislation  §  1367.     1.  Enacted  March  21,  1872. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  235,  adding  "before  death" 
at  end  of  section. 

§  1368.  Leg-acies,  when  due.  Legacies  are  due  and  deliver- 
able at  the  expiration  of  one  year  after  the  testator 's  decease. 
Annuities  commence  at  the  testator 's  decease. 

Legacies  payable  after  four  months:   See  Code  Civ.  Proc,  §  1658. 

Legislation  §  1368.     Enacted  March  21,  1872. 


469  GENERAL    PROVISIONS    RELATING    TO    WILLS.  §  1375 

§  1369.  Interest.  Legacies  bear  interest  from  the  time 
Avhen  they  are  due  and  payable,  except  that  legacies  for  main- 
tenance, or  to  the  testator's  widow,  bear  interest  from  the 
testator's  decease. 

Legislation  §  1369.     Euac-tccl  March  21,  1872. 

§  1370.  Construction  of  these  rules.  The  four  preceding 
sections  are  in  all  cases  to  be  controlled  by  a  testator's  express 
intention. 

Intention  of  testator:    See   ante,  §  1317. 
IiCgislation  §  1370.     Enacted  March  21,  1872. 

§  1371.  Executor  according*  to  the  tenor.  Where  it  appears, 
by  the  terms  of  a  will,  that  it  was  the  intention  of  the  testator 
to  commit  the  execution  thereof  and  the  administration  of  his 
estate  to  any  person  as  executor,  such  person,  although  not 
named  executor,  is  entitled  to  letters  testamentary  in  like  man- 
ner as  if  he  had  been  named  executor. 

Appointment   of    executors:    See    Code    Civ.    Proc,  §§  1348    et    seq., 
1365. 

Legislation  §  1371.     Enacted  March  21,  1872. 

§  1372.     Power  given  executor  to  appoint  is  invalid.    An 

authority  to  an  executor  to  appoint  an  executor  is  void. 
Executor   of   executor:    See    Code    Civ.   Proc,  §  1353. 
Legislation  §  1372.     Enacted  March   21,   1872. 

§  1373.  Executor  not  to  act  till  qualified.  No  person  has 
any  power,  as  an  executor,  until  he  qualifies,  except  that,  be- 
fore letters  have  been  issued,  he  may  pay  funeral  charges  and 
take  necessary  measures  for  the  preservation  of  the  estate. 

Qualification  of  executor:  See  Code  Civ.  Proc,  §§  1350,  1353,  1365  et 
seq. 

Payment  of  debts:  See  ante,  §  1359. 
Legislation  §  1373.     Enacted  March  21,  1872. 

§  1374.  Provisions  as  to  revocations.  The  provisions  of  this 
title  in  relation  to  the  revocation  of  wills  apply  to  all  wills 
made  by  any  testator  living  at  the  expiration  of  one  year  from 
the  time  it  takes  effect. 

Legislation  §  1374.     Enacted  March  21,   1872. 

§  1375.     Execution  and  construction  of  prior  wills  not  af- 
fected.    The  provisions  of  this  title  do  not  impair  the  validity 
of  the  execution  of  any  aa^II  made  before  it  takes  effect,  or 
affect  the  construction  of  any  such  will. 
Legislation  §  1375.     Enacted  March  21,  1872. 


§  1377  CIVIL  CODE.  ■  470 

§  1376.  Law  governing  interpretation.  The  validity  and 
interpretation  of  AvilLs,  Avherever  made,  are  governed,  Avhen  re- 
lating to  property  within  this  state,  by  the  law  of  this  state, 
except  as  provided  in  section  twelve  hundred  and  eighty-five. 
[Amendment  approved  1905 ;  Stats.  1905,  p.  607.] 
Law  governing:   See  ante,  §  1285. 

Legislation  §  1376.  1.  Enacted  March  21,  1872,  and  then  read: 
"Except  as  otherwise  provided,  the  validity  and  interpretation  of  wills 
are  governed,  when  relating  to  real  property  within  this  state,  by  the 
law  of  this  state;  when  relating  to  personal  property,  by  thg  law  of 
the  testator's  domicile." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  2.3.5,  to  read:  "The  validity 
and  interpretation  of  wills,  wherever  made,  are  governed  when  relat- 
ing to  property  within  this  state,  by  the  law  of  this  state." 

3.  Amendment  by  Stats.  1901,  p.  405;  unconstitutional:  See  n(A.e, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  607;  the  code  commissioner  saying, 
"The  change  .  .  .  has  been  rendered  necessary  by  the  proposed  amend- 
ment to  §  1285." 

§  1377.     Liability  of  beneficiaries  for  testator's  obligations. 

Those  to  whom  property  is  given  by  will  are  liable  for  the  obli- 
gations of  the  testator  in  the  cases  and  to  the  extent  prescribed 
by  the  Code  of  Civil  Procedure. 

Legislation  §  1377,  Enacted  March  21,  1872.  The  code  commission- 
ers say:  "The  three  chapters  comprising  the  title  on  wills  embrace 
all  the  laws  of  our  state  relating  to  the  subject  not  contained  in  title 
XI  of  the  Code  of  Civil  Procedure;  as  also  many  of  the  provisions  of 
the  Civil  Code  of  New  York  on  the  corresponding  subject,  from  §  614 
to  §  636,  inclusive.  This  somewhat  enlarges  the  space  occupied  here- 
tofore by  our  laws,  but  space  is  not  to  be  considered  when  the  provi- 
sions embodied  are  so  salutary  and  so  obviously  well  digested  and  pre- 
pared. Practical  experience  may  demonstrate  the  usefulness  of  other 
provisions,  but  those  given  are  supposed  to  provide  for  every  con- 
ceivable contingency." 


471  SUCCESSION.  §1384 


TITLE' VII. 
Succession. 

§   1383.  Succession    defined. 

§  1384.  Intestate's  -estate,   to   whom   passes. 

§   1385.  Personal    representatives.     [Repealed.] 

§   1386.  Succession    to    and    distribution    of    estate    of    deceased    person. 

§   1387.  Illegitimate   children   to   inherit  in  certain  events. 

§   1388.  Successor    to    illegitimate    child. 

§  1389.  Degrees  of  kindred,  how  computed. 

§   1390.  Same.     Direct   and    collateral    consanguinity. 

§   1391.  Same.     Direct  line  descending,  and  direct  line  ascending. 

§   1392.  Same.     Degrees  in  direct  line. 

§   1393.  Same.     Degrees   in    collateral   line. 

§  1394.  Relatives   of  the  half  blood. 

§   1395.  Advancements  constitute  part  of  distributive  share. 

§  .1396.  Advancements,  when   too   much,   or   not   enough. 

§   1397.  What   are   advancements. 

§   1398.  Value    of   advancements,   how   determined. 

§  1399.  When   heir,   advanced   to,   dies  before   decedent. 

§   1400.  Inheritance   of   husband   and   wife   from   each   other. 

§   1401.  Distribution   of   the   common   property   on   death   of   wife. 

§   1402.  Distribution   of   common   property   on   death   of  husband. 

§   1403.  Inheritance    by    representation. 

§   1404.  Aliens  may  inherit,  when,  and  how. 

§   1405.  Succession   not   claimed,   attorney-general   to   cause   to   be   sold, 

and   proceeds    deposited   with   state   treasurer. 

§  1406.  When  the  property  and   estate  escheat  to  the  state. 

§   1407.  Property  escheated  subject  to   charges  as   other  property. 

§   1408.  Successor   liable   for    decedent's    obligations. 

§   1409.  Person   convicted   of  murder   of   decedent   not  to   succeed. 

§  1383.  Succession  defined.  Succession  is  the  coming  in  of 
another  to  take  the  property  of  one  who  dies  without  dispos- 
ing of  it  by  will. 

Legislation  §  1383.     Enacted  March  21,  1872. 

§1384.  Intestate's  estate,  to  whom  passes.  The  property, 
both  real  and  personal,  of  one  who  dies  without  disposing  of 
it  by  will,  passes  to  the  heirs  of  the  intestate,  subject  to  the 
control  of  the  probate  court,  and  to  .the  possession  of  any  ad- 
ministrator appointed  by  that  court,  for  the  purposes  of  admin- 
istration. [Amendment  approved  1874;  Code  Amdts  1873-74, 
p.  236.] 

Possession  of  personal  representative:  See  Code  Civ.  Proc,  §§  1452, 
1581. 

Legislation  §  1384.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §§  638,  639,  modified),  and  read:  "The  property, 
both  real  and  personal,  of  any  one  who  dies  without  disposing  of  it 
by  will,  passes,  in  the  first  instance,  to  the  personal  representative  of 
such  person  as  trustee:  1.  To  make  the  provision  for  the  surviving 
husband  or  wife,  or  child,  which  is  directed  by  title  XI,  of  part  III, 
of    the    Code    of    Civil    Procedure;    2.  To    apply    the    property    to    the 


§  1386  CIVIL  CODE.  472 

payment  of  the  debts  of  the  decedent,  according  to  the  title  on  wills, 
and  the  provisions  of  the  Code  of  Civil  Procedure;  and,  3.  To  distribute 
any  remaining  property  among  those  entitled  to  succeed  to  the  prop- 
erty of  the  decedent,  according  to  the  provisions  of  this  title." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  236. 

§  1385.  Personal  representatives.  [Repealed  1874 :  Code 
Amdts.  1873-74,  p.  236.] 

Legislation  §  1385.     1,  Enacted  March  21,  1872. 
2.  Repeale.l  liy  Code  Amdts.  1873-71,  p.  236. 

§  1386.  Succession  to  and  distribution  of  estate  of  deceased 
person.  When  any  person  having  title  to  any  estate  not  other- 
wise limited  by  marriage  contract,  dies  without  disposing 
thereof  by  will,  it  is  succeeded  to  and  must  be  distributed, 
unless  otherMnse  expressly  provided  in  this  code  and  the  Code 
of  Civil  Procedure,  subject  to  the  payment  of  his  debts,  in  the 
following  manner : 

1.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal  shares 
to  the  surviving  husband,  or  wife  and  child,  or  issue  of  such 
child.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
more  than  one  child  living,  or  one  child  living  and  the  lawful 
issue  of  one  or  more  deceased  children,  one  third  to  the  sur- 
viving husband  or  wife,  and  the  remainder  in  equal  shares  to 
his  children  and  to  the  lawful  issue  of  any  deceased  child,  by 
right  of  representation;  but  if  there  is  no  child  of  decedent 
living  at  his  death,  the  remainder  goes  to  all  of  his  lineal  de- 
scendants ;  and  if  all  of  the  descendants  are  in  the  same  degree 
of  kindred  to  the  decedent,  they  share  equally,  otherwise  they 
take  according  to  the  right  of  representation.  If  the  decedent 
leaves  no  surviving  husband  or  wife,  but  leaves  issue,  the 
Avhole  estate  goes  to  such  issue ;  and  if  such  issue  consists  of 
more  than  one  child  living,  or  one  child  living  and  the  lawful 
issue  of  one  or  more  deceased  children,  then  the  estate  goes 
in  equal  shares  to  the  children  living,  or  to  the  child  living 
and  the  issue  of  the  deceased  child  or  children  by  right  of 
representation ; 

2.  If  the  decedent  leaves  no  issue,  the  estate  goes  one  half 
to  the  surviving  husband  or  wife,  and  the  other  half  to  the 
decedent's  father  and  mother  in  equal  shares,  and  if  either  is 
dead  the  whole  of  said  half  goes  to  the  other.  If  there  is  no 
father  or  mother,  then  one  half  goes  in  equal  shares  to  the 
brothers  and  sisters  of  decedent  and  to  the  children  or  grand- 
children of  any  deceased  brother  or  sister  by  right  of  repre- 
sentation. If  the  decedent  leaves  no  issue,  nor  husband  nor 
wife,  the  estate  must  go  to  his  father  and  mother  in  equal 
shares,  or  if  either  is  dead  then  to  the  other; 


473  SUCCESSION.  §  1386 

3.  If  there  is  neither  issue,  husband,  wife,  father,  nor  mother 
then  in  equal  shares  to  the  brothers  and  sisters  of  decedent 
and  to  the  children  or  grandchildren  of  any  deceased  brother 
or  sister,  by  right  of  representation ; 

4.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
neither  issue,  father,  mother,  brother,  sister,  nor  the  children 
or  grandchildren  of  a  deceased  brother  or  sister,  the  whole 
estate  goes  to  the  surviving  husband  or  Avif e ; 

5.  If  the  decedent  leaves  neither  issue,  husband,  wife,  father, 
mother,  brother,  nor  sister,  the  estate  must  go  to  the  next  of 
kin,  in  equal  degree,  excepting  that,  when  there  are  two  or 
more  collateral  kindred,  in  equal  degree,  but  claiming  through 
different  ancestors,  those  who  claim  through  the  nearest  an- 
cestor must  be  preferred  to  those  claiming  through  an  ancestor 
more  remote ; 

6.  If  the  decedent  leaves  several  children,  or  one  child  and 
the  issue  of  one  or  more  children,  and  any  such  surviving  child 
dies  under  age  and  not  having  been  married,  all  the  estate  that 
came  to  the  deceased  child  by  inheritance  from  such  decedent 
descends  in  equal  shares  to  the  other  children  of  the  same 
parent  and  to  the  issue  of  any  such  other  children  who  are 
dead,  by  right  of  representation ; 

7.  If,  at  the  death  of  such  child,  who  dies  under  ^age,  not 
having  been  married,  all  the  other  children  of  his  parents  are 
also  dead,  and  any  of  them  has  left  issue,  the  estate  that  came 
to  such  child  by  inheritance  from  his  parent  descends  to  the 
issue  of  all  other  children  of  the  same  parent;  and  if  all  the 
issue  are  in  the  same  degree  of  kindred  to  the  child,  they  share 
the  estate  equally,  otherwise  they  take  according  to  the  right 
of  representation ; 

8.  If  the  deceased  is  a  widow,  or  widower,  and  leaves  no 
issue,  and  the  estate,  or  any  portion  thereof,  was  common  prop- 
erty of  such  decedent  and  his  or  her  deceased  spouse,  while 
such  spouse  was  living,  such  property  goes  in  equal  shares  to 
the  children  of  such  deceased  spouse  and  to  the  descendants 
of  such  children  by  right  of  representation,  and  if  none,  then 
one  half  of  such  common  j^roperty  goes  to  the  father  and 
mother  of  such  decedent  in  equal  shares,  or  to  the  survivor  of 
them  if  either  be  dead,  or  if  both  be  dead,  then  in  equal  shares 
to  the  brothers  and  sisters  of  such  decedent  and  to  the  descend- 
ants of  any  deceased  brother  or  sister  by  right  of  representa- 
tion, and  the  other  half  goes  to  the  father  and  mother  of  such 
deceased  spouse  in  equal  shares,  or  to  the  survivor  of  them  if 
either  be  dead,  or  if  both  be  dead,  then  in  equal  shares  to  the 
brothers  and  sisters  of  such  deceased  spouse  and  to  the  de- 
scendants of  any  deceased  brother  or  sister  by  right  of  repre- 
sentation. 


§  1386  CIVIL  CODE.  474 

If  the  estate,  or  any  portion  thereof,  -was  separate  property 
of  such  deceased  sponse,  while  living,  and  came  to  snch  de- 
cedent from  such  spouse  by  descent,  devise,  or  bequest,  such 
property  goes  in  equal  shares  to  the  children  of  such  spouse 
and  to  the  descendant-s  of  any  deceased  child  hj  right  of  rep- 
resentation, and  if  none,  then  to  the  father  and  mother  of  such 
spouse,  in  equal  shares,  or  to  the  survivor  of  them  if  either 
be  dead,  or  if  both  be  dead,  then  in  equal  shares  to  the  brothers 
and  sisters  of  such  spouse  and  to  the  descendants  of  any  de- 
ceased brother  or  sister  by  right  of  representation. 

9.  If  the  decedent  leaves  no  husband,  wife,  or  kindred,  and 
there  are  no  heirs  to  take  his  estate  or  any  portion  thereof, 
under  subdivision  eight  of  this  section,  the  same  escheats  to  the 
state  for  the  support  of  the  common  schools.  [Amendment 
approved  1907;  Stats.  1907,  p.  567.] 

Administration  of  intestates'   estates:    See   Code   Civ.  Proc,  §§  1365 
et   seq. 

Legislation  §  1386.  1.  Enacted  March  21,  1872  (based  on  Stats. 
1850,  p.  219,  §1;  Stats.  1862,  p.  569,  §  1),  and  then  read:  "When  any 
person  having  title  to  any  estate  not  otherwise  limited  by  marriage 
contract,  dies  without  disposing  of  the  same  by  will,  it  is  succeeded  to, 
and  must  be  distributed,  subject  to  the  payment  of  his  debts,  in  the 
following  manner:  1.  If  the  decedent  leaves  a  surviving  husband  or 
wife,  and  only  one  child,  or  the  lawful  issue  of  one  child,  in  equal 
shares  to  the  surviving  husband,  or  wife  and  child,  or  issue'  of  such 
child.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and  more 
than  one  child  living,  or  one  child  living,  and  the  lawful  issue  of  one 
or  more  deceased  children,  one  third  to  the  surviving  husband  or  wife, 
and  the  remainder  in  equal  shares  to  his  children,  and  to  the  lawful 
issue  of  any  deceased  child,  by  right  of  representation.  If  there  be  no 
child  of  the  decedent  living  at  his  death,  the  remainder  goes  to  all  of 
his  lineal  descendants;  and  if  all  the  descendants  are  in  the  same 
degree  of  kindred  to  the  decedent  they  share  equally,  otherwise  they 
take  according  to  the  right  of  representation;  2.  If  the  decedent  leaves 
no  issue,  the  estate  goes  in  -equal  shares  to  the  surviving  husband  or 
wife,  and  to  the  decedent's  father.  '  If  there  be  no  father,  then  one  half 
goes  in  equal  shares  to  the  brothers  and  sisters  of  the  decedent,  and  to 
the  children  of  any  deceased  brother  or  sister,  by  right  of  representa- 
tion; if  he  leaves  a  mother  also,  she  takes  an  equal  share  with  the 
brothers  and  sisters.  If  decedent  leaves  no  issue,  nor  husband,  nor 
wife,  the  estate  must  go  to  his  father;  3.  If  there  be  no  issue,  nor 
husband,  nor  wife,  nor  father,  then  in  equal  shares  to  the  brothers 
and  sisters  of  the  decedent,  and  to  the  children  of  any  deceased 
brother  or  sister,  by  right  of  representation;  if  a  mother  survives, 
she  takes  an  equal  share  with  the  brothers  and  sisters;  4.  If  the  de- 
cedent leaves  no  issue,  nor  husband  nor  wife,  nor  father,  and  no 
brother  nor  sister  is  living  at  the  time  of  his  death,  the  estate  goes 
to  his  mother,  to  the  exclusion  of  the  issue,  if  any,  of  deceased  brothers 
or  sisters;  5.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
no  issue,  and  no  father,  nor  mother,  nor  brother,  nor  sister,  the  whole 
estate  goes  to  the  surviving  husband  or  wife;  6.  If  the  decedent  leave? 
no  issue,  nor  husband,  nor  wife,  and  no  father,  nor  mother,  nor  brother 
nor  sister,  the  estate  must  go  to  the  next  of  kin,  in  equal  degree,  ex- 
cepting that  when  there  are  two  or  more  collateral  kindred,  in  equai 


475  _  SUCCESSION.  §  1386 

degree,  but  claiming  through  different  ancestors,  those  who  claimed 
through  the  nearest  ancestors  must  be  preferred  to  those  claiming 
through  an  ancestor  more  remote;  however:  7.  If  the  decedent  leaves 
several  children,  or  one  child  and  the  issue  of  one  or  more  other  chil- 
dren, and  any  such  surviving  child  dies  under  age,  and  not  having 
been  married,  all  the  estate  that  came  to  the  deceased  child  by  inheri- 
tance from  such  decedent  descends  in  equal  shares  to  the  other  chil- 
dren of  the  same  parent,  and  to  the  issue  of  any  such  other  children 
who  are  dead,  by  right  of  representation;  8.  If,  at  the  death  of  such 
child,  who  dies  under  age,  not  having  been  married,  all  the  other  chil- 
dren of  his  parents  are  also  dead,  and  any  of  them  have  left  issue,  the 
estate  that  came  to  such  child  by  inheritance  from  his  parent  descends 
to  the'  issue  of  all  other  children  of  the  same  parent;  and  if  all  the 
issue  are  in  the  same  degree  of  kindred  to  the  child,  they  share  the 
estate  equally,  O'therwise  they  take'  according  to  the  right  of  represen- 
tation; 9.  If  the  decedent  leaves  no  husband,  wife,  or  kindred,  the 
estate  escheats  to  the  state,  for  the  support  of  common  schools." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  236,  (1)  changing  the  intro- 
ductory paragraph  to  read,  "When  any  person  having  title  to  any 
estate  not  otherwise  limited  by  marriage  contract,  dies  without  dis- 
posing of  the'  estate  by  will,  it  is  succeeded  to  and  must  be  distributed, 
unless  otherwise  expressly  provided  in  this  code  and  the  Code  of  Civil 
Procedure,  subject  to  the  payment  of  his  debts,  in  the  following  man- 
ner"; (2)  in  subd.  1,  (a)  in  first  sentence,  changing  "leaves"  to  "leave," 
(b)  in  second  sentence,  changing  "leaves"  to  "leave"  and  adding  "but" 
before  "if  there  be  no  child"  and  "of"  after  "and  if  all,"  and  (c) 
adding  a  third  sentence,  reading  same  in  all  the  subsequent  amend- 
ments, except  the  word  "leave,"  which,  when  added,  was  printed 
"leave"  in  first  and  "leaves"  in  second  instance;  (3)  in  subd.  2  (a) 
changing  "leaves"  to  "leave"  in  each  instance,  (b)  adding  "and"  (sic) 
before  "the  estate,"  and  (e)  changing  "his"  to  "the"  before  "father" 
at  end  of  subdivision;  (4)  in  subd.  4,  changing  (a)  "leaves"  tO'  "leave" 
before  "no  issue,"  and  (b)  "nor"  to  "or"  afte'r  "no  brother";  (5)  in 
subds.  5  and  6,  changing  "leaves"  to  "leave";  (6)  in  subd.  7,  (a) 
changing  "leaves"  to  "leave,"  and  (b)  omitting  "other"  after  "one 
or  mo-re";  (7)  in  subd.  9,  changing  "leaves"  to  "leave." 

3.  Amended  by  Code  Amdts.  1880,  p.  14  (1)  the  introductory  para- 
graph reading  the  same  as  the  amendment  of  1873-74;  (2)  in  subd.  1, 
(a)  in  second  sentence,  omitting  "of"  afte'r  "and  if  all,"  and  (b)  in 
final  sentence  (added  in  1873-74),  changing  "leaves"  to  "leave"  in 
second  instance;  (3)  changing  subd.  2  to  read,  "2.  If  the  decedent  leave 
no  issue,  the  estate  goes,  one-half  to  the  surviving  husband  or  wife, 
and  the  other  half  to  the  decedent's  father  and  mother,  in  equal  shares, 
and  if  either  be  dead,  the  whole  of  said  half  goes  to  the  other;  if  there 
be  no  father  or  mother,  then  one  half  goes  in  equal  shares  to  the 
brothers  and  sisters  of  the  decedent,  and  to  the  children  of  any  de- 
ceased brother  or  sister  by  right  of  representation.  If  the  decedent 
leave  no  issue,  nor  husband,  nor  wife,  the  estate  must  go  to  his  father 
and  mother,  in  equal  shares,  or  if  either  be  dead,  then  to  the  other"; 
(4)  changing  subd.  3  to  read:  "If  there  be  neither  issue,  husband, 
wife,  father  nor  mother,  then  in  equal  shares  to  the  brothers  and  sis- 
ters of  the  decedent,  and  to  tlio  children  of  any  deceased  brother  or 
sister  by  right  of  representation";  (4)  omitting  subd.  4  in  toto;  (5) 
changing  subd.  5  to  read:  "5.  If  the  decedent  leave  a  surviving  hus- 
band or  wife,  and  neither  issue,  father,  mother,  brother,  nor  sister,  the' 
whole  estate  goes  to  the  surviving  husband  or  wife";  (6)  changing 
subd.  6  to  read:  "6.  If  the  decedent  leave  neither  issue,  husband, 
wife,   father,    mother,   brother,    nor    sister,    the    estate   must   go    to    the 


§  1387  CIVIL  CODE.  476 

next  of  kin  in  equal  degree,  excepting  that  when  there  are  two  or  more 
collateral  kindred  in  equal  degree,  but  claiming  through  different  an- 
cestors, those  who  claimed  through  the  nearest  ancestors  must  be  pre- 
ferred to  those  claiming  through  an  ancestor  more  remote";  (7)  in 
subd.  7,  changing  "parent"  to  "parents"  after  "from  his";  (8)  adding 
a  new  subd.  9,  the  old  subd.  9  being  renumbered  subd.  10  and  amended, 
these  subdivisions  reading,  "9.  If  the  decedent  be  a  widow  or  widower, 
and  leave  no  kindred,  and  the  estate,  or  any  portion  thereof,  was  com- 
mon property  of  such  decedent,  and  his  or  her  deceased  spouse,  while 
such  spouse  was  living,  such  common  property  shall  go  to  the  father 
of  such  deceased  spouse,  or  if  he  be  dead,  to  the  mother.  If  there  be 
no  father  nor  mother,  then  such  property  shall  go  to  the'  brothers  and 
sisters  of  such  deceased  spouse,  in  equal  shares,  and  to  the  lawful 
issue  of  any  deceased  brother  or  sister  of  such  deceased  spouse,  by 
right  of  representation.  10.  If  the  decedent  leave  no  husband,  wife, 
or  kindred,  and  there  be  no  heirs  to  take  his  estate,  or  any  portion 
thereof,  under  subdivision  nine  of  this  section,  the  same  escheats  to 
the  state  for  the  support  of  common  schools." 

4.  Amendment  by  Stats.  1901,  p.  404;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  608,  and  differing  from  the  amendment 
of  1907  only  in  subd.  8,  which  read:  "If  the  decedent  is  a  widow  or 
widower,  and  leaves  no  issue,  and  the  estate  or  any  portion  there'of 
was  common  property  of  such  decedent  and  his  or  her  deceased  spouse, 
while  such  spouse  was  living,  or  was  separate  property  of  his  or  her 
deceased  spouse,  while  such  spouse  was  living,  such  property  goes  to 
the  children  of  such  deceased  spouse  and  the  descendants  theTeof,  and 
if  none,  then  to  the  father  of  such  decased  spouse,  or  if  he  is  dead, 
to  the  mother.  If  there  is  no  father  nor  mother,  then  such  property 
goes  to  the'  brothers  and  sisters  of  such  deceased  spouse,  in  equal 
shares,  and  to  the  lawful  issue  of  any  deceased  brother  or  sister  of  such 
deceased  spouse  by  right  of  representation." 

6.  Amended  by  Stats.  1907,  p.  567;  the'  code  commissioner  saying, 
"In  1905  a  clerical  error  was  corrected  by  renumbering  the  subdivisions, 
and  certain  errors  of  grammar  were  corrected.  The  words  'or  grand- 
child' were  inserted  after  'child';  the  words  'nor  the  child  or  grand- 
child of  a  deceased  brother  or  sister'  were  inserted  after  'sister';  the 
words  'children  of  such  deceased  spouse'  and  the  descendants  thereof, 
and  if  none,  then  to,'  were  also  inserted.  In  the  second  line  of  subd. 
8,  the  word  'issue'  was  substituted  for  'kindred,'  and  the  subdivision 
amended  to  overcome  such  cases  as  Estate  of  McCauley,  138  Cal.  546. 
Upon  further  consideration  the  section,  as  thus  amended,  being  deemed 
to  be  still  unsatisfactory,  it  was  again  amended  in  1907  by  e'ntirely 
recasting  subd.  8." 

§  1387.     Illegitimate  children  to  inherit  in  certain  events. 

Every  illegitimate  child  is  an  heir  of  the  person  who,  in  writ- 
ing, signed  in  the  presence  of  a  competent  witness,  acknowl- 
edges himself  to  be  the  father  of  such  child ;  and  in  all  cases 
is  an  heir  of  his  mother ;  and  inherits  his  or  her  estate,  in  whole 
or  in  part,  as  the  case  may  be,  in  the  same  manner  as  if  he  had 
been  born  in  lawful  wedlock;  but  he  does  not  represent  his 
father  or  mother  by  inheriting  any  part  of  the  estate  of  his 
or  her  kindred,  either  lineal  or  collateral,  unless,  before  his 
death,  his  parents  shall  have  intermarried,  and  his  father,  after 
such  marriage,  acknowledges  him  as  his  child,  or  adopts  him 


1388.  Successor  to  Illegitimate  Child.  The  estate  of  an 
illegitimate  child,  who,  [having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  thereof  by 
will,  is  succeeded  to  as  If  he  had  been  born  in  lawful  wedlock 
if  he]  has  been  legritimated  by  a  sulisequent  marriage  of  his 
parents,  or  adopted  by  [his]  father  as  provided  by  section  two 
hundred  thirty [;  otherwise,  it  is  succeeded  to  as  if  he  had  been 
born  In  lawful  wedlock  and  had  survived  his  father  and  all 
persons  related  to  him  only  through  his  father].  (In  effect  90 
days    from   and   after   April    29,    1921.     Stats.    1921,    Chap.    186.) 

Civ.    Code,   1921. 


477  SUCCESSION.  §  1390 

into  his  family ;  in  which  case  such  child  and  all  the  legitimate 
children  are  considered  brothers  and  sisters,  and  on  the  death 
of  either  of  them,  intestate,  and  without  issue,  the  others  in- 
herit his  estate,  and  are  heirs,  as  hereinbefore  provided,  in 
like  manner  as  if  all  the  children  had  been  legitimate ;  saving 
to  the  father  and  mother,  respectively,  their  rights  in  the  es- 
tates of  all  the  children  in  like  manner  as  if  all  had  been  legiti- 
mate. The  issue  of  all  marriages  null  in  law,  or  dissolved  by 
divorce,  are  legitimate. 

Adoption  of  illegitimate  child:  See  ante,  §  230. 

Legitimacy  of  children   of   annulled  marriage:    See   ante,  §  84. 

Legislation  §  1387.  1.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  219,  §  2. 

2.  Amendment  by  Stats.  1901,  p.  406;  unconstitutional.  See  note  §  4, 
ante. 

§  1388.  Successor  to  illegitimate  child.  The  estate  of  an 
illegitimate  child,  who  has  been  legitimated  by  the  subsequent 
marriage  of  its  parents,  or  adopted  by  the  father  as  provided 
by  section  two  hundred  and  thirty,  and  who  dies  intestate,  is 
succeeded  to  as  if  he  were  born  in  lawful  wedlock.  If  such 
child  has  not  been  so  legitimated  or  adopted,  his  estate  goes 
to  his  lawful  issue,  or,  if  he  leaves  no  issue,  to  his  mother,  or 
in  case  of  her  decease,  to  her  heirs  at  law.  [Amendment  ap- 
proved 1905;  Stats.  1905,  p.  609.] 

Legislation  §  1388.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  220,  §.3),  and  then  read:  "If  an  illegitimate'  child,  who  has  not 
Ijeen  acknowledged  or  adopted  by  his  father,  dies  intestate,  without 
lawful  issue,  his  estate  goes  to  his  mother,  or  in  case  of  her  decease 
to  her  heirs  at  law." 

2.  Amendment  by  Stats.  1901,  p.  406;  unconstitutional.  See  note,  §4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  609;  the  code  commissioner  saying, 
"The  amendment  consists  in  declaring  that  if  an  illegitimate  child 
has  been  legitimated,  his  estate  on  his  death  is  succeeded  to  as  if  he 
were  born  in  wedlock." 

§  1389.  Degrees  of  kindred,  how  computed.  The  degree  of 
kindred  is  established  l)y  the  numl)er  of  generations,  and  each 
generation  is  called  a  degree. 

Legislation  §  1389,  Enacted  March  21,  1872;  based  on  Stats.  1850. 
p.  221,  §  4. 

§  1390.     Same.     Direct  and  collateral  consanguinity.     The 

series  of  degrees  forms  the  line;  the  series  of  degrees  between 
persons  M^ho  descend  from  one  another  is  called  direct  or  lineal 
consanguinity:  and  the  series  of  degrees  between  persons  who 
do  not  descend  from  one  another,  but  spring  from  a  common 
ancestor,  is  called  the  collateral  line  or  collateral  consan- 
guinity. 

Legislation  §  1390.     Enacted  March  21,  1872. 


§  1395  CIVIL  CODE.  478 

§  1391.  Same.  Direct  line  descending',  and  direct  line  as- 
cending'. The  direct  line  is  divided  into  a  direct  line  descend- 
ing and  a  direct  line  ascending.  The  first  is  that  which  con- 
nects the  ancestors  with  those  who  descend  from  him.  The 
second  is  that  which  connects  a  person  with  those  from  whom 
he  descends. 

Legislation  §  1391.     Enacted  March  21,  1872. 

§  1392.  Same.  Deg'rees  in  direct  line.  In  the  direct  line 
there  are  as  many  degrees  as  there  are  generations.  Thus,  the 
son  is,  with  regard  to  the  father,  in  the  first  degree ;  the  grand- 
son in  the  second;  and  vice  versa  with  regard  to  the  father 
and  grandfather  toward  the  sons  and  grandsons. 

Legislation  §  1392.     Enacted   March  21,   1872;    based  on  Stats.  1850, 

p.  221,  §4. 

§  1393.  Same,  Deg'rees  in  collateral  line.  In  the  collateral 
line  the  degrees  are  counted  hy  generations,  from  one  of  the 
relations  up  to  the  common  ancestor,  and  from  the  common 
ancestor  to  the  other  relations.  In  such  computation  the  de- 
cedent is  excluded,  the  relative  included,  and  the  ancestor 
counted  but  once.  Thus,  brothers  are  related  in  the  second 
degree;  uncle  and  nephew  in  the  third  degree;  cousins  german 
in  the  fourth,  and  so  on. 

Legislation  §  1393.     Enacted  March   21,  1872;   based  on   Stats.   1850, 

p.  221,  §1. 

§  1394.  Relatives  of  the  half  blood.  Kindred  of  the  half 
blood  inherit  equally  Avith  those  of  the  whole  blood  in  the 
same  degree,  unless  the  inheritance  come  to  the  intestate  by 
descent,  devise,  or  gift  of  some  one  of  his  ancestors,  in  which 
case  all  those  who  are  not  of  the  blood  of  such  ancestors  must 
be  excluded  from  such  inheritance. 

Kindred  of  half  blood  as  administrators:  See  Code  Civ.  Proc, 
§  1366. 

Legislation  §  1394.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  221,  §  4. 

§  1395.     Advancements  constitute  part  of  distributive  share. 

Any  estate,  real  or  personal,  given  by  the  decedent  in  his  life- 
time as  an  advancement  to  any  child,  or  other  heir,  is  a  part 
of  the  estate  of  the  decedent  for  the  purposes  of  division  and 
distribution  thereof  among  his  heirs,  and  must  be  taken  by 
such  child,  or  other  heir,  toward  his  share  of  the  estate  of  the 
decedent.      [Amendment  approved  1905 ;  Stats.  1905,  p.  609.] 

Advancements:    See   ante,  §§  1309,    1351. 

Legislation  §  1395.  1.  Enacted  March  21.  1872  (based  on  Stats. 
1850,  p.  221,  §  5),  and  then  read:  "Any  estate,  real  or  personal,  given 
by  the  decedent  in   his  lifetime,  as  an   advancement   to   any  child,  or 


479  SUCCESSION.  §  1399 

other  lineal  descendant,  is  a  part  of  the  estate  of  the  decedent  for 
the  purposes  of  division  and  distribution  thereof  among  his  issue', 
and  must  be  taken  by  such  child,  or  other  lineal  descendant,  toward 
his  share  of  the  estate  of  the  decedent." 

2.  Amendment  by  Stats.  1901,  p.  406;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  609. 

§  1396.     Advancements,  when  too  much,  or  not  enough.     If 

the  amount  of  such  advancement  exceeds  the  share  of  the  heir 
receiving  the  same,  he  must  be  excluded  from  any  further 
portion  in  the  division  and  distribution  of  the  estate,  but  he 
must  not  be  required  to  refund  any  part  of  such  advancement ; 
and  if  the  amount  so  received  is  less  than  his  share,  he  is  en- 
titled to  so  much  more  as  will  give  him  his  full  share  of  the 
estate  of  the  decedent. 

Legislation  §  1396.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  221,  §  6. 

§  1397.  What  are  advancements.  All  gifts  and  grants  are 
made  as  advancements,  if  expressed  in  the  gift  or  grant  to  be 
so  made,  or  if  charged  in  writing  by  the  decedent  as  an  ad- 
vancement, or  acknowledged  in  writing  as  such,  by  the  child 
or  other  successor  or  heir. 

Legislation  §  1397.     Enacted  March  21,   1872;    based  on   Stats.   18-50, 

p.  221,  §  7. 

§  1398.     Value   of  advancements,  how   determined.     Tf  the 

value  of  the  estate  so  advanced  is  expressed  in  the  conveyance, 
or  in  the  charge  thereof  made  by  the  decedent,  or  in  the  ac- 
knowledgment of  the  party  receiving  it,  it  must  be  held  as  of 
that  value  in  the  division  and  distribution  of  the  estate ;  other- 
wise, it  must  be  estimated  according  to  its  value  when  given, 
as  nearly  as  the  same  can  be  ascertained. 

Legislation  §  1398.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  221,  §  8. 

§  1399.     When  heir,  advanced  to,  dies  before  decedent.     If 

any  child,  or  otlier  heir  receiving  advancement,  dies  before  the 
decedent,  leaving  heirs,  the  advancement  must  be  taken  into 
consideration  in  the  division  and  distribution  of  the  estate, 
and  the  amount  thereof  must  be  allowed  accordingly  by  the 
representatives  of  the  heirs  receiving  the  advancement,  in  like 
manner  as  if  the  advancement  had  been  made  directly  to  them. 
[Amendment  approved  1905;  Stats.  1905,  p.  609.] 

Legislation  §  1399.  1.  Enacted  March  21,  1872  (based  on  Stats.  1850, 
p.  221,  §9),  and  then  had  (1)  the  words  "lineal  descendant"  instead 
of  "heir"  in  first  line,  and  (2)  the  word  "issue"  instead  of  "heirs" 
after  "leaving." 

2.  Amendment  by  Stats.  1901,  p.  400;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  609. 


§  1403  CIVIL  CODE.  480 

§  1400.     Inheritance  of  husband  and  wife  from  each  other. 

The  provisions  of  the  preceding  sections  of  this  title,  as  to 

the  inheritance  of  the  husband  and  wife  from  ea»h  other,  apply 

only  to  the  separate  property  of  the  decedents. 

Legislation  §  1400.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  221,  §  10. 

§  1401.  Distribution  of  the  common  property  on  death  of 
wife.  Upon  the  death  of  the  wife,  the  entire  community  prop- 
erty, without  administration,  belongs  to  the  surviving  hus- 
band, except  such  portion  thereof  as  may  have  been  set  apart 
to  her  by  judicial  decree,  for  her  support  and  maintenance, 
which  portion  is  subject  to  her  testamentary  disposition,  and 
in  the  absence  of  such  disposition,  goes  to  her  descendants, 
or  heirs,  exclusive  of  her  husband.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.^238.] 

Legislation  §  1401.  1.  Enacted  *March  21,  1872  (based  on.  Stats. 
1863-64.  p.  363,  §  1),  and  then  read:  "Upon  the  death  of  the  wife, 
the  entire  community  property,  without  administration,  belongs  to 
the'  surviving  husband,  if  he  shall  not  have  abandoned  and  lived  sepa- 
rate and  apart  from  her;  but  if  the  husband  shall  have  abandoned  his 
wife,  and  lived  separate  and  apart  from  her.  the  half  of  the  commu- 
nity property,  subject  to  the  paj'ment  of  the  debts  chargeable  to  it,  is 
at  her  testamentary  disposition,  and  in  the  absence  of  such  disposi- 
tion, goes  to  her  descendants  or  heirs  at  law,  exclusive  of  her  hus- 
band." 

2.  Amended  by  Code  Arndts.  1873-74,  p.  238. 

§  1402.  Distribution  of  common  property  on  death  of  hus- 
band. Upon  the  death  of  the  husband,  one  half  of  the  com- 
munity property  goes  to  the  surviving  wife,  and  the  other 
half  is  subject  to  the  testamentary  disposition  of  the  husband, 
and  in  the  absence  of  such  disposition,  goes  to  his  descendants, 
equally,  if  such  descendants  are  in  the  same  degree  of  kin- 
dred to  the  decedent ;  otherwise,  according  to  the  right  of 
representation ;  and  in  the  absence  of  both  such  disposition 
and  such  descendants,  is  subject  to  distribution  in  the  same 
manner  as  the  separate  property  of  the  husband.  In  case  of 
the  dissolution  of  the  community  by  the  death  of  the  husband, 
the  entire  community  property  is  equally  subject  to  "his  debts, 
the  family  allowance,  and  the  charges  and  expenses  of  admin- 
istration. 

Community  property,  defined:    Ante,  §§  163,  164. 

Legislation  §  1402.     Enacted  March  21,  1872;   based  on   Stats.   1863- 

64,  p.  363,  §  1. 

§  1403.  Inheritance  by  representation.  Inheritance  or  suc- 
cession "by  right  of  representation"  takes  place  when  the  de- 
scendants of  any  deceased  heir  take  the  same  share  or  right 
in  the  estate  of  another  person  that  their  parents  would  have 


I 


1401.      Distribution  of  Community   Property  on    Death   of   Wife 

L'pon  the  oeath  of  the  wife,  [one-half]  of  the  conimunit; 
I  property  belongs]  to  the  surviving-  husband,  [and  the  othe 
half  is  subject  to  the  testamentary  disposition  of  the  wife,  sub 
ject,  however,  to  the  provisions  of  section  one  thousand  twi 
hundred  seventy-one  of  the  Civil  Code:]  and  in  tlie  absence  o 
such  testamentai\-  disposition,  [the  entire  community  propert; 
goes  to  the  surviving  husband  without  administration,  excep 
such  portion  thereof  as  may  have  been  set  apart  to  the  wif 
by  judicial  decree  for  her  support  and  maintenance,  which  por 
tion  is  subject  to  her  testamentary  disposition,  and  in  th- 
absence  of  such  disposition  goes  to  her  descendants  or  heirs 
exclusive  of  her  husband,  and  the  fact  of  intestacy  may  bi 
determined  by  proceedings  under  section  one  thousand  sevei 
hundred  twenty-three  of  the  Code  of  Civil  Procedure.  Whei 
the  wife  makes  testamentary  disposition  of  her  interest  in  thi 
community  property,  the  entire  community  property  is  subjec 
to  the  community  debts,  and  the  charges  and  expenses  of  ad 
ministration.  Prior  to  admission  of  any  such  will  to  probate 
the  husband  shall  continue  in  the  management  and  control  o 
the  community  property;  after  the  admission  of  the  will  ti 
probate,  the  court  may  and  so  far  as  the  proper  and  advantage 
ous  administration  of  the  estate  will  permit,  must  continue  th( 
management  and  control  of  the  community  property  in  the  hus 
band,  who  from  time  to  time  shall  account  to  the  estate  foi 
such  management  and  control.]  (In  effect  HO  days  from  anc 
after  April   Tl,    1919.      Stats.    1919,    Chap.    Gil.)  Civ.    Code,    1919 

1402.  Distribution  of  Community  Profperty  on  Death  of  Hus- 
band. Upon  the  death  of  the  husband,  one-half  of  the  com- 
munity property  [belongs]  to  the  surviving  wife,  and  the  other 
lialf  is  subject  to  the  testamentary  disposition  of  the  husband, 
[subject,  however,  to  the  provisions  of  section  one  thousand  two 
hundred  seventy-one  of  the  Civil  Code,]  and  in  ab.sence  of  such 
testamentary  disposition,  [it  all  goes  to  the  surviving  wife  upon 
administration.]  In  case  of  the  dissolution  of  the  community 
by  the  death  of  the  husband,  the  entire  community  property 
is  equally  subject  to  his  debts,  the  family  allowance  and  the 
charges  and  expenses  of  administration.  (In  effect  90  days  from 
and  after  April  22,  1919.     Stats.  1919.  Chap.   611.)        Civ.   Code,   1919. 

rN,        1       Half    of    Community    Property    Belonging    tc 

1402a.      iNew^]      HaK    o     ^°  J^^^  ^,,,   Etc.     The   one- 

surviving   Spouse   ^ot  Subject  to    ,  ^^    ^^^    surviving 

,,alf  of  t'-/°"f  ""^^  J';,r\o  inheritance  tax  or  be  reckonec 
spouse  shall  not  ^^  ^^''^\^'l.^''  '^^^^  spouse  for  the  purpose 
as  part  of  the  estate  "JJ^^  ^'^"^^^.Xs  or  administrators  o: 
of  fixing  the  compensation  ^^  ^^^'^'^'^  f,„^  ^nd  after  Apri 
fixing    attorneys    fees.       (In    effect    90    da>  s  ^_^     ^^^^     ^^^^ 

22,   1919.      Stats.   1919,   Chap.   611.) 


De^afh^o;    w?;r"^^     Distnbut/on    of    r 


Civ.  Code,  1921. 


1402  [Repealed.]  Distribution  of  Community  Property  on 
Death  of  Husband.  (Stats.  1919,  p.  1274.)  Refused  enactment  by 
referendum  vote  of  people  at  general  election  November  2,  1920. 

Civ.  Code,  1921. 


l-402a.  [Repealed.]  Half  of  Community  Property  Belonging 
to  Surviving  Spouse  Not  Subject  to  Inheritance  Tax,  etc  (Stats. 
1919,  p.  1275.)  Refused  enactment  by  referendum  vote  of  people  at 
general  election  November  2,    1920.  Civ.  Code,  1921. 


1405.  Escheat  Property.  [Whenever  any  person  dies  leaving 
any  property  in  this  state  not  disposed  of  by  will,  and  there 
are  no  persons  entitled  to  succeed  thereto  under  the  laws  of  this 
state,  the  same  shall  escheat  to  the  state  as  of  the  date  of  the 
death  of  the  decedent.  The  property  or  proceeds  of  any  estate 
deposited  in  the  state  treasury  after  final  decree  of  distribution 
or  judgment  of  the  superior  court  by  reason  of  the  failure  of 
heirs  to  make  claim  thereto-  may  be  recovered  upon  judgment 
of  the  superior  court  or  order  of  the  state  board  of  control  as 
provided  in  the  Code  of  Civil  Procedure.]  (In  effect  90  days 
from   and   after  April    27,    1917.     Stats.    1917,    Chap.    170.) 

Civ.    Code,    1917. 


481  SUCCESSION.  §  1405 

taken  if  living.     Posthumous  children  are  considered  as  living 
at  the  death  of  their  parents. 

Death  of  devisee,  relative  of  testator,  in  lifetime  of  testator:   See 

ante,  §  1310. 

Succession  by  posthumous  children:  See  ante,  §§  698,  1306,  1339. 

Legislation  §  1403.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  221,  §  11. 

§  1404.  Aliens  may  inherit,  when,  and  how.  Resident  aliens 
may  take  in  all  cases  by  succession  as  citizen.s ;  and  no  person 
capable  of  succeeding  under  the  provisions  of  this  title  is  pre- 
cluded from  such  succession  by  reason  of  the  alienage  of  any 
relative ;  but  no  non-resident  foreigner  can  take  by  succession 
unless  he  appears  and  claims  such  succession  within  five  years 
after  the  death  of  the  decedent  to  whom  he  claims  succession. 

Aliens.     May  take  by  succession:  See  ante,  §§  671,  672. 

Aliens.     Control  of  property  by:  Const.,  art.  i,  §  17. 

Time  to  claim  succession:    See   ante,  §  672. 

Alien  land  law  of  1913:   See  General  Laws,  Act  128. 

Legislation  §  1404.  Enacted  March  21,  1872;  based  on  Const.  1849, 
art.  i,  §  17;  Stats.  1856,  p.  137,  §  1;  State  v.  Rogers,  13  Cal.  159;  Field's 
Draft,  N.  Y.  Civ.  Code,  §  660. 

§  1405.  Succession  not  claimed,  attorney-general  to  cause 
to  be  sold,  and  proceeds  deposited  with  state  treasurer.  When 
succession  is  not  claimed  as  provided  in  the  preceding  section, 
the  superior  court,  on  information,  must  direct  the  attorney- 
general  to  reduce  the  property  to  his  possession  or  that  of  the 
state,  or  to  cause  it  to  be  sold,  and  it  or  its  proceeds  to  be  de- 
posited in  the  state  treasury  for  the  benefit  of  the  person  en- 
titled thereto,  to  be  paid  to  him,  if,  within  five  years  after  such 
deposit,  he  appears  in  the  court  in  which  such  information  was 
filed  and  asks  for  a  judgment  or  order  entitling  him  thereto. 
[Amendment  approved  1905;  Stats.  1905,  p.  609.] 

Legislation  §  1405.  1.  Enacted  March  21,  1872  (based  on  Stats.  1856, 
p.  137,  §1),  and  then  read:  "When  succession  is  not  claimed  as  pro- 
vided in  the  preceding  section,  the  district  court,  on  information,  must 
direct  the  attorney  general  to  reduce  the  property  to  his  or  the  pos- 
session of  the  state,  or  to  cause  the  same  to  be  sold,  and  the  same 
or  the  proceeds  thereof  to  be  deposited  in  the  state  treasury  for  the 
benefit  of  such  non-resident  foreigner,  or  his  le'gal  representative,  to 
be  paid  to  him  whenever,  within  five  years  after  such  deposit,  proof 
to  tlie  satisfaction  of  the  state  controller  and  treasurer  is  produced 
that  he  is  entitled  to  succeed  thereto." 

2.  Amendment  by  Stats.  1901,  p.  406;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  609;  the  code  commissioner  saying, 
"The  design  of  the  amendment  is  to  require  the  proof  of  the  right  to 
succession  to  be  made  in  court  instead  of  vesting  the  controller  and 
treasurer  with  power  to  determine  the  question." 

Civ.  Code — 31 


§  1409  CIVIL  CODE.  482 

§  1406.     When  the  property  and  estate  escheat  to  the  state. 

When  such  judgment  or  order  is  obtained,  a  certified  copy 
thereof  must  be  filed  "with  the  state  treasurer  as  his  voucher. 
Thereupon  the  property  must  be  delivered,  or  the  proceeds 
paid,  to  the  claimant,  on  filing  his  receipt  therefor.  If  no  one 
succeeds  to  the  estate  or  the  proceeds,  as  herein  provided,  the 
property  of  the  decedent  devolves  and  escheats  to  the  people 
of  the  state,  and  must  be  placed  by  the  state  treasurer  to  the 
credit  of  the  school  fund.  [Amendment  approved  1905 ;  Stats. 
1905,  p.  610.] 

Legislation  §  1406.  1.  Enacted  March  21,  1872  (based  on  Stats.  1856, 
p.  137,  §  1),  and  then  read:  "When  so  claimed,  the'  evidence  and  the 
joint  order  of  the  controller  and  treasurer  must  be  filed  by  the  treas- 
urer as  his  voucher,  and  the  property  delivered  or  the  proceeds  paid 
to  the  claimant  on  filing  his  receipt  therefor.  If  no  one  succeeds  to 
the  estate  or  the  proceeds,  as  herein  provided,  the  property  of  the 
decedent  devolves  and  escheats  to  the  people  of  the  state,  and  is 
placed  by  the  state  treasurer  to  the  credit  of  the     school  fund." 

2.  Amendment  by  Stats.  1901,  p.  407;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  610;  the  code  commissioner  saying, 
"This  section  is  recast  to  conform  to  the  proposed  amendment  to  the 
last  section." 

§  1407.  Property  escheated  subject  to  charges  as  other  prop- 
erty. Real  property  passing  to  the  state  under  the  last  section, 
whether  held  by  the  state  or  its  officers,  is  subject  to  the  same 
charges  and  trusts  to  which  it  would  have  been  subject  if  it 
had  passed  by  succession,  and  is  also  subject  to  all  the  provi- 
sions of  title  eight,  part  three,  of  the  Code  of  Civil  Procedure. 
Title  VIII,  part  III,  Code  Civ.  Proc:  See  §§  1269-1272. 
Legislation  §  1407.     Enacted  March   21,  1872;  based   on  Stats.  1869- 

70,  p.  72;   §  1;  Stats.  1862,  p.  103.  §§  2  et  seq.;  Stats.  18.5o,  p.  222,  §§  1 

et  seq.;  Field's  Draft,  N.  Y.  Civ.  Code,  §  668. 

§  1408.  Successor  liable  for  decedent's  obligations.  Those 
who  succeed  to  the  property  of  a  decedent  are  liable  for  his 
obligations  in  the  cases  and  to  the  extent  prescribed  by  the 
Code  of  Civil  Procedure. 

Legislation  §  1408.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  669. 

§  1409.  Person  convicted  of  murder  of  decedent  not  to  suc- 
ceed. No  person  who  has  been  convicted  of  the  murder  of 
the  decedent  shall  be  entitled  to  succeed  to  any  portion  of  his 
estate ;  but  the  portion  thereof  to  which  he  Avould  otherwise 
be  entitled  to  succeed  descends  to  the  other  persons  entitled 
thereto  under  the  provisions  of  this  title. 

Legislation  §  1409.  1.  Addition  by  Stats.  1901,  p.  407;  unconstitu- 
tional.   See  note,  §  4,  ante. 


483  WATER  RIGHTS.  §  1410a 

2.  Added  by  Stats.  1905,  p.  610;  the  code  commissioner  saying,  "This 
is  a  new  section,  and  is  limited  to  cases  where  a  conviction  for  murder 
has  been  had." 

TITLE  VIII. 
Water  Rights. 

§  1410.  How  rights  to  water  may  be  acquired. 

§  1410a.  Use  of  waters  flowing  out  of  state. 

§  1410b.  Maintenance  of  flow  of  water  in  streams  to  canal  intakes. 

§  1411.  Appropriation  must  be  for  a  useful  purpose. 

§  1412.  Point   of   diversion    may   be    changed. 

§  1413.  Water    may   be   turned   into    natural   channels. 

§   1414.  First  in  time,   first  in  right. 

§  1415.  Notice    of    appropriation. 

§  1416.  Work  to   be   done  in   appropriation   of   waters. 

§  1417.  Completion  defined. 

§  1418.  Doctrine  of  relation  applied. 

§  1419.  Forfeiture. 

§   1420.  Eights   of  present   claimant. 

§   1421.  Eecorder  to  keep  book  in  which  to  record  notices. 

§   1422.  Time  within  which  to  commence  excavation  on  public  reserva- 
tion. 

§  1410.  How  rights  to  water  may  be  acquired.  All  water 
or  the  use  of  water  within  the  state  of  California  is  the  prop- 
erty of  the  people  of  the  state  of  California,  but  the  right  to 
the  use  of  running  water  flowing  in  a  river  or  stream  or  down 
a  canyon  or  ravine  may  be  acquired  by  appropriation  in  the 
manner  provided  by  law ;  provided,  that  no  water  for  the  gen- 
eration of  electricity  or  electrical  or  other  power  may  be  ap- 
propriated for  a  longer  period  than  twenty-five  years,  except 
by  a  municipal  corporation,  other  than  an  irrigation  district 
or  a  lighting  district,  or  by  an  irrigation  district  when  such 
electricity,  electrical  or  other  power  is  for  use  and  distribu- 
tion only  within  its  own  limits,  and  as  subsidiary  to  and 
mainly  for  the  purpose  of  serving  and  carrying  out  irrigation, 
or  by  a  lighting  district  when  such  electricity,  electrical  or 
other  power,  is  for  use  and  distribution  only  within  its  own 
limits.      [Amenfliiiont  approved  1911;  Stats.  1911,  p.  821.] 

Acts  relating  to  irrigation:  See  General  Laws,  tit.  "Irrigation." 

Rights  of  approprlators  as  between  themselves:  See  §  1414. 

Posting  notice:  Post,  §§  1415  et  seq. 

Legislation  §  1410.  1.  Enacted  March  21,  1872,  and  then  read: 
"The  right  to  the  use  of  running  water  flowing  in  a  river  or  stream 
or  down  a  cafion  or  ravine  may  be  acquired  by  appropriation." 

2.  Amended  by  Stats.  1911,  p.  821. 

§  1410a.  Use  of  waters  flowing  out  of  state.  The  entire 
flow  of  water  in  any  natural  stream  M'hicb  carries  water  from 
the  state  of  California  into  any  other  state  is  subject  to  use  in 
the  state  of  California,  under  the  laws  of  the  state  of  Califor- 


§  1411  CIVIL   CODE.  48-4 

nia,  and  the  right  niav  be,  so  far  as  not  already  acquired  by 
use  in  the  state  of  California,  acquired  and  held  under  the 
laws  of  the  state  of  California.  The  rights  to  the  use  of  such 
water  held  under  the  laws  of  the  state  of  California,  shall 
be  prior  and  superior  to  any  rights  to  the  waters  of  such 
streams  held  under  the  laws  of  any  other  state. 
Legislation  §  1410a.     Added  by  Stats.  1913,  p.  93. 

§  1410b.  Maintenance  of  flow  of  water  in  streams  to  canal 
intakes.  The  flow  of  water  in  any  natural  stream  to  the  in- 
take of  any  canal  diverting  water  therefrom  for  sale,  rental 
or  distribution  to  the  public  or  for  any  public  use,  or  the  use 
of  any  farming  neighborhood  may  be  maintained  by  the  person 
in  charge  of  such  use  by  restoring  or  repairing  any  break  in 
the  bank  of  the  stream,  and  by  maintaining  the  banks  of  the 
stream,  and  by  preventing  by  physical  structure  and  other 
appropriate  means  any  increased  flow  of  water  through  any 
natural  by-ways  of  water  which  carry  or  threaten  to  carry 
such  increase  of  water  of  the  stream  away  from  such  intake ; 
provided,  however,  that  no  act  herein  authorized,  when  per- 
formed, shall  prevent,  retard  or  obstruct  the  building  there- 
after of  any  reclamation,  protection  or  flood  control  levee  and 
the  maintenance  thereof;  nor  shall  any  act  herein  authorized 
prevent  the  use  of  any  natural  channel  nor  the  enlargement 
thereof,  for  municipal  purposes  or  for  use  in  connection  with 
any  artificial  system  of  drainage,  irrigation  or  flood  control 
not  causing  the  flow  of  water  in  the  channel  at  the  intake  of 
such  canal  to  be  less  than  the  quantity  of  water  the  owners 
and  appropriators  may  have  the  right  to  divert  into,  said  in- 
take ;  nor  shall  any  act  herein  authorized  prevent  the  use  of 
any  natural  channel  or  the  enlargement  thereof  to  convey 
water  appropriated  under  the  laws  of  the  state  of  California, 
where  such  natural  channel  shall  be  designated  as  the  means, 
or  part  of  the  means  of  conveying  the  water  so  appropriated ; 
nor  shall  the  acts  herein  authorized  limit  the  powers  or 
authority  of  the  water  commission  of  the  state  of  California 
to  accomplish  in  its  own  way  the  purposes  of  this  section,  nor 
interfere  with  the  construction  of  any  flood  control  works  in 
accordance  with  any  plan  of  flood  control  adopted  by  the 
reclamation  board. 

Legislation  §  1410b.     Added  by  Stats.  1915,  p.  1376. 

§  1411.     Appropriation  must  be  for  a  useful  purpose.     The 

appropriation  must  be  for  some  useful  or  beneficial  purpose, 
and  when  the  appropriator  or  his  successor  in  interest  ceases  to 
use  it  for  such  a  purpose,  the  right  ceases. 


485  WATER  RIGHTS.  §  1415 

Appropriation    must    be   evidenced    by   physical     acts:     See     post, 
§  1416. 
Amount  of  water  appropriated:  See  post,  §  1415. 

Legislation  §  1411.     Enacted  March  21,  1872, 

§  1412,  Point  of  diversion  may  be  changed.  The  person 
entitled  to  the  use  may  change  the  place  of  diversion,  if  others 
are  not  injured  by  such  change,  and  may  extend  the  ditch, 
flume,  pipe,  or  aqueduct  by  which  the  diversion  is  made  to 
places  beyond  that  where  the  first  use  was  made. 

Changing  point  of  diversion:   See  post,  §  1415. 

Legislation  §  1412.     Enacted  March  21,  1872. 

§  1413.    Water  may  be  turned  into  natural  channels.     The 

water  appropriated  may  be  turned  into  the  channel  of  an- 
other stream  and  mingled  with  its  water,  and  then  reclaimed; 
but  in  reclaiming  it  the  water  already  appropriated  by  an- 
other must  not  be  diminished. 

Legislation  §  1413.     Entered  March  21,  1872, 

§  1414.  First  in  time,  first  in  right.  As  betAveen  appropri- 
ators,  the  one  first  in  time  is  the  first  in  right. 

When  right  begins:    See   post,  §  1418. 
Use  of  water,  nature  of:   See  ante,  §  1411. 
Change  of  use:   See  ante,  §  1412. 
Legislation  §  1414.     Enacted  March  21,  1872. 

§  1415.  Notice  of  appropriation.  A  person  desiring  to  ap- 
propriate water  must  post  a  notice,  in  writing,  in  a  conspicu- 
ous place  at  the  point  of  intended  diversion,  stating  therein : 

1.  That  he  claims  the  water  there  flowing  to  the  extent  of 
(giving  the  number)  inches,  measured  under  a  four-inch  pres- 
sure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of 
intended  use ; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size 
of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to 
divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  posted, 
be  recorded  in  the  office  of  the  recorder  of  the  county  in  which 
it  is  posted.  After  filing  such  copy  for  record,  the  place  of 
intended  diversion  or  the  place  of  intended  use  or  the  means 
by  which  it  is  intended  to  divert  the  water,  may  })c  changed 
by  the  person  posting  said  notice  or  his  assigns,  if  others  are 
not  injured  by  such  change.  This  provision  applies  to  no- 
tices already  filed  as  well  as  to  notices  hereafter  filed. 
[Amendment  approved  1903;  Stats.  1903,  p.  361.] 
Change  of  place  of  diversion:  See  ante,  §  1412. 


§  1416  CIVIL   CODE.  186 

Legislation  §  1415.  1.  Enacted  March  21,  1872,  the  section  then 
ending  with  the  first  sentence  of  the  present  final  paragraph. 

2.  Amended  by  Stats.  1903,  p.  361,  adding  two  sentences  to  the  final 
paragraph. 

§  1416.     Work   to   be    done    in   appropriation    of   waters. 

Within  sixty  days  after  the  notice  is  posted,  the  claimant  must 
commence  the  excavation  or  construction  of  the  works  in 
which  he  intends  to  divert  the  water,  or  the  survey,  road  or 
trail  building,  necessarily  incident  thereto,  and  must  prosecute 
the  work  diligently  and  uninterruptedly  to  completion,  unless 
temporarily  interrupted  by  snows  or  rain;  provided,  that  if 
the  erection  of  a  dam  has  been  recommended  by  the  Califor- 
nia debris  commission  at  or  near  the  place  where  it  is  intended 
to  divert  the  water,  the  claimant  shall  have  sixty  days  after 
the  completion  of  such  dam  in  which  to  commence  the  exca- 
vation or  construction  of  the  works  in  which  he  intends  to 
divert  the  water ;  provided,  that  whenever  any  city  and 
county,  or  any  incorporated  city  or  town  within  this  state 
makes,  or  has  made,  or  acquires,  or  has  acquired  any  appro- 
priation of  any  of  the  waters  of  this  state  in  accordance  with 
the  provisions  of  section  1415  of  this  code,  it  shall  not  be 
necessary  for  such  city  and  county,  city  or  toAvn  to  commence 
the  work  for  development  of  more  of  the  water  so  claimed 
than  is  actually  necessary  for  the  immediate  needs  of  such 
city  and  county,  city  or  town,  and  it  shall  be  held  to  be  a  suffi- 
cient compliance  with  the  requirements  of  this  chapter,  to  the 
full  amount  of  water  stated  in  the  notice  posted  and  recorded, 
for  such  city  and  county,  city  or  town  to  within  sixty  days 
make  the  necessary  surveys,  or  within  six  months  to  authorize 
the  issuance  of  municipal  bonds,  for  the  construction  of  the 
necessary  works  designed  to  supply  such  city  and  county,  city 
or  town  with  the  water  required  for  immediate  use.  Any  ap- 
propriation heretofore  made  by  any  such  city  and  county,  city 
or  town  in  connection  with  which  surveys  were  at  any  time 
made,  or  an  issue  of  bonds  authorized  for  the  construction 
of  any  portion  of  the  Avorks  necessary  for  a  diversion  of  any 
part  of  the  water  appropriated,  is  hereby  confirmed  to  the 
full  amount  of  water  stated  in  the  original  notice  or  notices. 
[Amended  1911;  Stats.  1911,  p.  1419.] 

Time  from  whicli  right  of  appropriation  becomes  vested:  See  post, 
§  1418. 

Legislation  §  1416.  1.  Enacted  March  21.  1872,  and  then  read: 
"Within  sixty  daj's  after  the'  notice  is  posted,  the  claimant  must  com- 
mence the  excavation  or  construction  of  the  works  in  which  he  in- 
tends to  divert  the  water,  and  must  prosecute  the  work  diligently  and 
uninterruptedly  to  completion,  unless  temporarily  interrupted  by  snow 
or  rain." 


487  WATER  RIGHTS.  §  1-120 

2.  Amended  by  Stats.  1895,  p.  70,  (1)  changing  "snow"  to  "snows," 
and  (2)  adding  the  first  proviso,  which  read  as  at  present. 

3.  Amended  by  Stats.  1903,  p.  396,  in  beginning  of  section  adding 
"or  the  survey,  road  or  trail  building,  necessarily  incident  thereto,"  the 
section  then  ending  with  the  first  proviso,  as  in  1895. 

4.  Amended  by  Stats.  1907,  p.  780,  adding  the  second  and  third  pro- 
visos and  then  read:  "Within  sixty  days  after  the  notice  is  posted,  the 
claimant  must  commence  the  excavation  or  construction  of  the  works 
in  which  he  intends  to  divert  the  water,  or  the  survey,  road  or  trail 
building,  necessarily  incident  thereto,  and  must  prosecute  the  work 
diligently  and  uninterruptedly  to  completion,  unless  temporarily  inter- 
rupted by  snows  or  rain;  provided,  that  if  the  erection  of  a  dam  has 
been  recommended  by  the'  California  debris  commission  at  or  near  the 
place  where  it  is  intended  to  divert  the  water,  the  claimant  shall  have 
sixty  days  after  the  completion  of  such  dam  in  which  to  commence  the 
excavation  or  construction  of  the  works  in  which  he  intends  to  divert 
the  water;  and  provided  further,  that  if  it  shall  be  necessary,  by  pro- 
ceedings in  eminent  domain,  to  acquire  water  rights  held  by  adverse 
riparian  owners  or  to  acquire  sites  for  dams  or  power  plants  at  the 
point  of  intended  diversion  or  the  point  of  intended  use,  as  described 
in  the  notice'  of  appropriation  of  said  water,  or  if  there  shall  be 
conflicting  claims  to  the  waters  so  appropriated,  then  the  party  so 
appropriating,  or  his  assigns,  shall  have  sixty  days  after  the  determina- 
tion of  legal  proceedings  by  final  judgment  in  which  to  commence  to 
excavate'  or  construct  the  works  in  v/hieh  he  intends  to  divert  the 
water  as  provided  in  this  section;  and  provided  further,  that  if  suits 
for  such  purpose  are  not  already  pending  at  the  date  of  the  passage  of 
this  act,  they  shall  be  commenced  within  sixty  days  after  this  act  takes 
effect,  and  as  to  future  appropriations  of  water,  within  sixty  days  after 
notice  of  such  appropriation  is  posted  as  required  by  law,  and  such 
proceedings  shall  be  prosecuted  diligently  to  final  judgment;  but  noth- 
ing in  this  act  shall  be  construed  to  revive  or  renew  appropriations 
of  water  heretofore  made  which  have  been^  abandoned  and  lost,  as 
against  subsequent  claimants  who  have  complied  with  this  act." 

5.  Amended  by  Stats.  1911,  p.  1419. 

§  1417.     Completion    defined.     By    "completion"    is    meant 
conducting  the  waters  to  the  place  of  intended  use. 
Legislation  §  1417.     Enacted  March  21,  1872. 

§  1418.     Doctrine  of  relation  applied.     By  a  compliance  with 
the  above  rules  the  claimant's  right  to  the  use  of  the  water 
relates  back  to  the  time  the  notice  was  posted. 
Legislation  §  1418.     Enacted  March  21,  1872. 

§  1419.     Forfeiture.     A  failure  to  comply  with  such  rules 
deprives  the  claimants  of  the  right  to  the  use  of  the  water  as 
against  a  subsequent  claimant  who  complies  therewith. 
Legislation  §  1419.     Enacted  March  21,  1872. 

§  1420.  Rights  of  present  claimant.  Persons  who  have 
heretofore  claimed  tlie  right  to  water,  and  who  have  not  con- 
structed works  in  which  to  divert  it,  and  M^ho  have  not  diverted 
nor  applied  it  to  some  useful  purpose,  must,  after  this  title 


§  1424  CIVIL  CODE.  488 

takes  effect,  and  M-ithin  twenty  days  thereafter,  proceed  as  in 
this  title  provided,  or  their  right  ceases. 
Legislation  §  1420.     Enacted  March  21,  1872. 

§  1421.     Recorder  to  keep  book  in  which  to  record  notices. 

The  recorder  of  each  county  must  keep  a  book,  in  which  he 
must  record  the  notices  provided  for  in  this  title. 
Legislation  §  1421.     Enacted  March  21,  1872. 

§  1422.  Time  within  which  to  commence  excavation  on  pub- 
lic reservation.  If  the  place  of  intended  diversion  or  any  part 
of  the  route  of  intended  conveyance  of  water  so  claimed,  be 
within,  and  a  part  of,  any  national  park,  forest  reservation,  or 
other  public  reservation,  and  be  so  shoAvn  in  the  notice  of 
appropriation  of  said  water,  then  the  claimant  shall  have  sixty 
days,  after  the  grant  of  authority  to  occupy  and  use  such  park 
or  reservation  for  such  intended  purpose,  within  which  to 
commence  the. excavation  or  construction  of  said  works;  pro- 
vided that  within  sixty  days  after  the  posting  of  said  notice 
of  appropriation,  as  provided  in  section  fourteen  hundred  and 
fifteen  of  the  Civil  Code,  the  claimant  shall  in  good  faith  com- 
mence (and  thereafter  diligently  and  continuously,  except 
when  temporarily  interrupted  by  snoAv  or  rain,  prosecute  to 
completion)  such  surveys  and  other  work  as  under  the  regu- 
lations governing  such  park  or  reservations,  may  be  required 
as  preliminary  to,  or  for  use  with,  an  application  for  such 
authority ;  and  provided  also  that  the  claimant  shall  in  good 
faith  on  completion  of  said  survey  and  preliminary  work, 
apply  to  the  officer,  board,  or  body,  having  charge  of  such 
park  or  reservation,  for  such  authority,  and  shall  thereafter, 
prosecute  said  application  with  reasonable  diligence. 

Acts  relating  to  irrigation:  See  General  Laws,  tit.  "Irrigation." 
Legislation  §  1422.  Added  by  Stats.  1903,  p.  397.  The  original  code 
§  1422  related  to  a  different  subject,  reading,  "The  rights  of  riparian 
proprietors  are  not  affected  by  the  provisions  of  this  title,"  and  was 
repealed  by  Stats  1887,  p.  114,  the  repealing  act  containing  a  proviso, 
which  read,  "provided,  that  the  repeal  of  this  section  shall  not  in  any 
way  interfere  with  any  rights  already  vested." 


TITLE  IX. 
Hydraulic  Mining. 

§   1424.     Where    hydraulic    mining   can   be    carried    on. 
§   1425.     Meaning    of    hydraulic    mining. 

Legislation  Title  IX.     Added  by  Stats.  1893,  p.  337. 

§  1424.     Where   hydraulic  mining  can  be  carried  on.     The 

business  of  hvdraulic  mining  mav  be  carried  on  within  the 


489  MINING  CLAIMS.      TUNNEL,  RIGHTS.      MILL  SITES.         §  1426 

state  of  California  wherever  and  whenever  the  same  can  be 
carried  on  without  material  injury  to  the  navigable  streams, 
or  the  lands  adjacent  thereto. 

Legislation  §  1424.     Added  by  Stats.   1893,   p.  3.37. 

§  1425.  Meaning  of  hydraulic  mining.  Hydraulic  mining, 
within  the  meaning;'  of  this  title,  is  mining  by  means  of  the  ap- 
plication of  water,  under  pressure,  through  a  nozzle,  against 
a  natural  bank. 

Legislation  §  1425.     Added  by  Stats.  1893,  p.  337. 

TITLE  X. 

Mining  Claims,  Tunnel  Rights,  and  Mill  Sites. 

§  1426.  Lode  claims,  how  located. 

§  1426a.  Boundaries. 

§  1426b.  Record  of  location. 

§  1426c.  Placer   claim,   location   of. 

§  1426d.  Record   of  location. 

§  1426e.  Tunnel  right,  location  of. 

§  1426f.  Boundaries. 

§  1426g.  Record  of  location. 

§  1426h.  Amended  notice. 

§  14261.  Surveyed  claims. 

§  1426J.  Mill   site,   location   of. 

§  1426k.  Record   of  location. 

§  14261.  Yearly  work  required. 

§  1426m.  Record   of  work. 

§  1426n.  Fee  for  recording  affidavits  of  labor,  etc. 

§  1426o.  Delinquent   co-owners,   notice   to.     Payment   by   delinquents. 

§  1426p.  Records   to   be   received   in   evidence. 

§  1426q.  Copies  of  records  as  evidence. 

§  1426r.  Effect    on    mining   districts. 

§  1426s.  Neglect   to   perform   development-work. 

Legislation  Title  X.  Added  by  Stats.  1909,  p.  313,  the  title  of  the 
act  reading,  "An  Act  to  amend  the  Civil  Code  of  California  by  adding 
a  new  title  thereto,  to  be  numbered  title  X,  in  part  IV  of  division  sec- 
ond, consisting  of  Sections  1426,  1426a,  1426b,  1426c,  1426d,  1426e,  1426f, 
]426g,  1426h,  14261,  1426,i,  1426k,  14261,  1426m,  1426n,  1426o,  1426p, 
1426q,  1426r,  and  1426s,  providing  for  the  manner  of  locating  lode  and 
placer-mining  claims,  tunnel  rights,  mill  sites,  and  prescribing  the 
character  and  amount  of  assessment-work  on  mining  claims,  and  pro- 
viding for  proofs  of  such  work,  and  for  the  recordation  of  location 
notices,  and  proof  of  labor,  and  for  the  enforcement  of  contributions 
from  delinquent  co-owners  of  mining  claims,  and  prescribing  the  duties 
of  county  recorders  respecting  the  recording  of  location  notices  of, 
and  proofs  of  labor  on,  mining  claims,  tunnel  rights,  and  mill  sites,  and 
the  fees  to  be  charged  therefor,  and  repealing  acts  in  conflict  here- 
with." 

§  1426.  Lode  claims,  how  located.  Any  person,  a  citizen  of 
the  United  States,  or  who  has  declared  his  intention  to  become 
such,  who  discovers  a  vein  or  lode  of  quartz,  or  other  rock  in 


§  1426c  CIVIL  CODE.  490 

place,  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other 
valuable  deposit,  may  locate  a  claim  upon  such  vein  or  lode, 
by  defining  the  boundaries  of  the  claim,  in  the  manner  herein- 
after described,  and  by  posting  a  notice  of  such  location,  at 
the  point  of  discovery,  which  notice  must  contain : 

First.     The  name  of  the  lode  or  claim. 

Second.     The  name  of  the  locator  or  locators. 

Third.  The  number  of  linear  feet  claimed  in  length  along 
the  course  of  the  vein,  each  way  from  the  point  of  discovery, 
with  the  width  on  each  side  of  the  center  of  the  claim,  and  the 
general  course  of  the  vein  or  lode,  as  near  as  may  be. 

Fourth.     The  date  of  location. 

Fifth.  Such  a  description  of  the  claim  by  reference  to  some 
natural  object,  or  permanent  monument,  as  Avill  identify  the 
claim  located. 

Legislation  §  1426.     Added  by  Stats.  1909,  p.  313. 

§  1426a.  Boundaries.  The  locator  must  define  the  bound- 
aries of  his  claim  so  that  they  may  be  readily  traced,  and  in 
no  case  shall  the  claim  extend  more  than  fifteen  hundred  feet 
along  the  course  of  the  vein  or  lode,  nor  more  than  three  hun- 
dred feet  on  either  side  thereof,  measured  from  the  center  line 
of  the  vein  at  the  surface. 

Legislation  §  1426a.     Added  by  Stats.  1909.  p.  314. 

§  1426b.  Record  of  location.  Within  thirty  days  after  the 
posting  of  his  notice  of  location  upon  a  lode  mining  claim,  the 
locator  shall  record  a  true  copy  thereof  in  the  office  of  the 
county  recorder  of  the  county  in  which  such  claim  is  situated, 
for  Avhich  service  the  county  recorder  shall  receive  a  fee  of  one 
dollar. 

Legislation  §  1426b.     Added  by  Stats.  1909,  p.  314. 

§  1426c.  Placer  claim,  location  of.  The  location  of  a  placer 
claim  shall  be  made  in  the  following  manner:  By  posting 
thereon,  upon  a  tree,  rock  in  place,  stone,  post  or  monument, 
a  notice  of  location,  containing  the  name  of  the  claim,  name 
of  locator  or  locators,  date  of  location,  number  of  feet  or  acre- 
age claimed,  such  a  description  of  the  claim  by  reference  to 
some  natural  object  or  permanent  monument  as  will  identify 
the  claim  located,  and  by  marking  the  boundaries  so  that  they 
may  be  readily  traced ;  provided,  that  where  the  United  States 
survey  has  been  extended  over  the  land  embraced  in  the  loca- 
tion, the  claim  may  be  taken  by  legal  subdivisions  and  no  other 
reference  than  those  of  said  survey  shall  be  required  and  the 
boundaries  of  a  claim  so  located  and  described  need  not  be 


491  MINING  CLAIMS.      TUNNED  RIGHTS.       MILL  SITES.       §  1426h 

st^^ked  or  monumented.     The  description  by  legal  subdivisions 
shall  be  deemed  the  equivalent  of  marking. 

Legislation  §  1426c.     Added  by  Stats.  1909,  p.  314. 

§  1426d.  Record  of  location.  "Within  thirty  days  after  the 
posting  of  the  notice  of  location  of  a  placer  claim,  the  locator 
shall  record  a  true  copy  thereof  in  the  office  of  the  county  re- 
corder of  the  county  in  which  such  claim  is  situated,  for  which 
service  the  recorder  shall  receive  a  fee  of  one  dollar. 
Legislation  §  I426d.     Added  by  Stats.  1909,  p.  314. 

§  1426e.  Tunnel  rig'ht,  location  of.  The  locator  of  a  tunnel 
right  or  location,  shall  locate  his  tunnel  right  or  location  by 
posting  a  notice  of  location  at  the  face  or  point  of  commence- 
ment of  the  tunnel,  which  must  contain : 

First.     The  name  of  the  locator  or  locators. 

Second.     The  date  of  the  location. 

Third.     The  proposed  course  or  direction  of  the  tunnel. 

Fourth.  A  description  of  the  tunnel,  with  reference  to  some 
natural  object  or  permanent  monument  as  shall  identify  the 
claim  or  tunnel  right. 

Legislation  §  1426e.     Added  by  Stats.  1909,  p.  314. 

§  1426f.  Boundaries.  The  boundary  lines  of  the  tunnel 
shall  be  established  by  stakes  or  monuments  placed  along  the 
lines  at  an  interval  of  not  more  than  six  hundred  feet  from 
the  face  or  point  of  commencement  of  the  tunnel  to  the  termi- 
nus of  three  thousand  feet  therefrom. 

Legislation  §  1426f.     Added  by  Stats.  1909,  p.  314. 

§  1426g\  Record  of  location.  "Within  thirty  days  after  the 
posting  the  notice  of  location  of  the  tunnel  right  or  location, 
the  locator  shall  record  a  true  copy  thereof,  in  the  office  of 
the  county  recorder  of  the  county  in  which  such  claim  is  sit- 
uated, for  Avhich  service  the  recorder  shall  receive  a  fee  of  one 
dollar. 

Legislation  §  1426g.     Added  by  Stats.  1909,  p.  314. 

§  1426h,  Amended  notice.  Tf  at  any  time  the  locator  of 
any  mining  claim  heretofore  or  hereafter  located,  or  his  as- 
signs, shall  apprehend  that  his  original  location  notice  was  de- 
fective, erroneous,  or  that  the  requirements  of  the  law  had  not 
been  complied  with  before  filing;  or  in  case  the  original  notice 
was  made  prior  to  the  passage  of  this  act,  and  he  shall  be 
desirous  of  securing  the  l)enefit  of  this  act,  such  locator,  or 
his  assigns,  may  file  an  additional  notice,  subject  to  the  pro- 
visions of  this  act;  provided,  that  such  amended  location 
notice  does  not  interfere  with  the  existing  rights  of  others  at 
the  time  of  posting  and  filing  such  amended  location  notice, 


§  142  6in  CIVIL  CODE.  492 

and  no  siicli  amended  location  notice  or  the  record  thereof, 
shall  preclude  the  claimant,  or  claimants  from    proving  any 
such  title  as  he  or  they  may  have  held  under  previous  locations. 
Legislation  §  14261i.     Added  by  Stats.  1909,  p.  31.5. 

§  14261.  Surveyed  claims.  Where  a  locator,  or  his  assigns, 
has  the  boundaries  and  corners  of  his  claim  established  by  a 
United  States  deputy  mineral  survey,  or  a  licensed  surveyor 
of  this  state,  and  his  claim  connected  with  the  corner  of  the 
public  or  minor  surveys  of  an  established  initial  point,  and 
incorporates  into  the  record  of  the  claim,  the  field-notes  of 
such  survey,  and  attaches  to  and  files  with  such  location  notice, 
a  certificate  of  the  surveyor,  setting  forth :  first,  that  said  sur- 
vey was  actually  made  by  him,  giving  the  date  thereof ;  second, 
the  name  of  the  claim  surveyed  and  the  location  thereof;  third, 
that  the  description  incorporated  in  the  declaratory  statement 
is  sufficient  to  identify;  such  survey  and  certificate  becomes 
a  part  of  the  record,  and  such  record  is  prima  facie  evidence 
of  the  facts  therein  contained. 

Legislation  §  14261.     Added  by  Stats.  1909,  p.  315. 

§  1426 j.  Mill  site,  location  of.  The  proprietor  of  a  vein  or 
lode  claim  or  mine,  or  the  owner  of  a  quartz-mill  or  reduction- 
works,  or  any  person  qualified  by  the  laws  of  the  United 
States,  may  locate  not  more  than  five  acres  of  non-mineral 
land  as  a  mill  site.  Such  location  shall  be  made  in  the  same 
manner  as  hereinbefore  required  for  locating  placer  claims. 
Legislation  §  1426J.     Added  by  Stats.  1909,  p.  315. 

§  1426k.  Record  of  location.  The  locator  of  a  mill  site 
claim  or  location  shall,  within  thirty  days  from  the  date  of  his 
location,  record  a  true  copy  of  his  location  notice  with  the 
county  recorder  of  the  county  in  which  such  location  is  situ- 
ated, for  which  service  the  recorder  shall  receive  a  fee  of  one 
dollar. 

Legislation  §  1426k.     Added  by  Stats.  1909,  p.  315. 

§  14261.     Yearly  v^ork  required.     The  amount  of  work  done 
or  improvements  made  during  each  year  to  hold  possession  of 
a  mining  claim  shall  be  that  prescribed  by  the  laws  of  the 
United  States,  to  wit :  One  hundred  dollars  annually. 
Legislation  §  14261.     Added  by  Stats.  1909,  p.  315. 

§  1426in.  Record  of  work.  Wlienever  mine-owner,  com- 
pany, or  corporation  shall  have  performed  the  labor  and  made 
the  improvements  required  by  law  upon  any  mining  claim,  the 
person  in  whose  behalf  such  labor  was  performed  or  improve- 
ments made,  or  some  one  in  his  behalf,  shall  within  thirty 


493  MINING  CLAIMS.      TUNNEL  RIGHTS.       MILL  SITES.       §  1426o 

days  after  the  time  limited  for  performing  such  labor  or  mak- 
ing such  improvements  make  and  have  recorded  by  the  county 
recorder,  in  books  kept  for  that  purpose,  in  the  county  in  which 
such  mining  claim  is  situated,  an  affidavit  setting  forth  the 
value  of  labor  or  improvements  made,  the  name  of  the  claim, 
and  the  name  of  the  owner  or  claimant  of  said  claim  at  whose 
expense  the  same  was  made  or  performed.  Such  affidavit,  or  a 
copy  thereof,  duly  certified  by  the  county  recorder,  shall  be 
prima  facie  evidence  of  the  performance  of  such  labor  or  the 
making  of  such  improvements,  or  both. 

Legislation  §  1426m.     Added  by  Stats.  1909,  p.  315. 

§  1426n.  Fee  for  recording-  affidavits  of  labor,  etc.  For  re- 
cording the  affidavit  herein  required,  the  county  recorder  shall 
receive 'a  fee  of  ten  cents  per  folio,  twenty  cents  for  indorse- 
ment and  ten  cents  for  indexing  the  name  of  each  claim  and 
each  owner.  [Amendment  approved  1915;  Stats.  1915, 
p.  734.] 

Legislation  §  1426n.  1.  Added  by  Stats.  1909,  p.  316  and  then  read: 
"For  recording  the  affidavit  herein  required,  the  county  recorder  shall 
receive  a  fee  of  fifty  cents." 

2.  Amended  by  Stats.  1915,  p.  734. 

§  1426o.  Delinquent  co-owners,  notice  to.  Payment  by  de- 
linquents. Whenever  a  co-owner  or  co-owners  of  a  mining 
claim  shall  give  to  a  delinquent  co-owner  or  co-owners  the 
notice  in  writing  or  notice  by  publication  provided  for  in  sec- 
tion two  thousand  three  hundred  and  twenty-four,  Revised 
Statutes  of  the  United  States,  an  affidavit  of  the  person  giving 
such  notice,  stating  the  time,  place,  manner  of  service,  and  by 
whom  and  upon  whom  such  service  was  made,  shall  be  attached 
to  a  true  copy  of  such  notice,  and  such  notice  and  affidavit  must 
be  recorded  in  the  office  of  the  county  recorder,  in  books  kept 
for  that  purpose,  in  the  county  in  which  the  claim  is  situated, 
within  ninety  days,  after  the  giving  of  such  notice;  for  the 
recording  of  which  said  recorder  shall  receive  the  same  fees  as 
are  now  alloAved  by  law  for  recording  deeds ;  or  if  such  notice 
is  given  by  publication  in  a  newspaper,  there  shall  be  attached 
to  a  printed  copy  of  such  notice  an  affidavit  of  the  printer  or 
his  foreman,  or  principal  clerk  of  such  paper,  stating  the  date 
of  the  first,  last  and  each  insertion  of  such  notice  therein,  and 
where  the  newspaper  was  published  during  that  time,  and  the 
name  of  such  newspaper.  Such  affidavit  and  notice  shall  be 
recorded  as  aforesaid,  within  one  hundred  and  eighty  days 
after  the  first  publication  thereof.  The  original  of  such  notice 
and  affidavit,  or  a  duly  certified  copy  of  the  record  thereof, 
shall  be  prima  facie  evidence  that  the  delinquent  mentioned  in 
section  two  thousand  three  hundred  and  twenty-four  has  failed 


§  1426q  CIVIL  CODE.  494 

or  refused  to  contribute  his  proportion  of  the  expenditure  re- 
quired by  that  section,  and  of  the  service  of  publication  of  said 
notice ;  provided,  the  writing  or  affidavit  hereinafter  provided 
for  is  not  of  record.  If  such  delinquent  shall,  within  the  ninety- 
days  required  by  section  two  thousand  three  hundred  and 
twenty-four,  aforesaid,  contribute  to  his  co-owner  or  co-owners, 
his  proportion  of  such  expenditures,  and  also  all  costs  of  service 
of  the  notice  required  by  this  section,  whether  incurred  for 
publication  charges,  or  otherwise,  such  co-owner  or  co-owners 
shall  sign  and  deliver  to  the  delinquent  or  delinquents  a  writ- 
ing, stating  that  the  delinquent  or  delinquents  by  name  has 
within  the  time  required  by  section  two  thousand  three  hun- 
dred and  twenty-four  aforesaid,  contributed  his  share  for  the 

year ,  upon  the mine,  and  further  stating  therein  the 

district,  county  and  state  wherein  the  same  is  situated,  and  the 
book  and  page  where  the  location  notice  is  recorded,  if  said 
mine  was  located  under  the  provisions  of  this  act;  such  writing 
shall  be  recorded  in  the  office  of  the  county  recorder  of  said 
county,  for  which  he  shall  receive  the  same  fees  as  are  now 
allowed  by  law  for  recording  deeds.  If  such  co-owner  or  co- 
owners  shall  fail  to  sign  and  deliver  such  Avriting  to  the  delin- 
quent or  delinquents  within  twenty  days  after  such  contribu- 
tion, the  co-owner  or  co-owners  so  failing  as  aforesaid  shall  be 
liable  to  the  penalty  of  one  hundred  dollars  to  be  recovered  by 
any  person  for  the  use  of  the  delinquent  or  delinquents  in  any 
court  of  competent  jurisdiction.  If  such  co-owner  or  co-owners 
fail  to  deliver  such  writing  Avithin  said  twenty  days,  the 
delinquent,  with  two  disinterested  persons  having  personal 
knowledge  of  such  contribution,  may  make  affidavit  setting 
forth  in  what  manner,  the  amount  of,  to  whom,  and  upon  what 
mine,  such  contribution  was  made.  Such  affidavit,  or  a  record 
thereof,  in  the  office  of  the  county  recorder,  of  the  county  in 
which  such  mine  is  situated,  shall  be  prima  facie  evidence  of 
such  contribution. 

Legislation  §  li26o.     Added  bj  Stats.  1909,  p.  316. 

§  1426p.  Records  to  be  received  in  evidence.  The  record 
of  any  location  of  a  mining  claim,  mill  site  or  tunnel  right,  in 
the  office  of  the  county  recorder,  as  herein  provided  shall  be 
received  in  evidence,  and  have  the  same  force  and  effect  in  the 
courts  of  the  state  as  the  original  notice. 

Legislation  §  1426p.     Added  by  Stats.  1909,  p.  317. 

§  1426q.  Copies  of  records  as  evidence.  Copies  of  the 
records  of  all  instruments  required  to  be  recorded  by  the  pro- 
visions of  this  act,  duly  certified  by  the  recorder,  in  whose  cus- 
tody such  records  are,  may  be  read  in  evidence,  under  the  same 


495  MINING  CLAIMS.      TUNNEL  RIGHTS.      MILL  SITES.       §  1426s 

circumstances  and  rules  as  are  now,  or  may  be  hereafter  pro- 
vided by  law,  for  using  copies  of  instruments  relating  to  real 
estate,  duly  executed  or  acknowledged  or  proved  and  recorded. 
Legislation  §  14r26q.     Added  by  Stats.  1909,  p.  317. 

§  1426r.  Effect  on  mining"  districts.  The  provisions  of  this 
act  shall  not  in  any  manner  be  construed  as  affecting  or  abolish- 
ing any  mining  district  or  the  rules  and  regulations  thereof 
within  the  state  of  California. 

Legislation  §  1426r.     Added  by  Stats.  1909,  p.  317. 

§  1426s.  Neglect  to  perform  development-work.  The  fail- 
ure or  neglect  of  any  locator  of  a  mining  claim  to  perform 
development-work  of  the  character,  in  the  manner  and  within 
the  time  required  by  the  laws  of  the  United  States,  shall  dis- 
qualify such  locators  from  relocating  the  ground  embraced  in 
the  original  location  or  mining  claim  or  any  part  thereof  under 
the  mining  laws,  within  three  years  after  the  date  of  his  origi- 
nal location  and  any  attempted  relocation  thereof  by  any  of 
the  original  locators  shall  render  such  location  void. 
Legislation  §  1426s.     Added  by  Stats.  1909,  p.  317. 


DIVISION  THIRD. 


♦ 


Part  I.     Obligations  in  General,     §§  1427-1543. 
II.     Contracts.     §§  1549-1701. 
III.     Obligations  Imposed  BY  Law.     §§1708-1715. 
IV.     Obligations    Arising    from    Particular    Trans- 
actions.    §§  1721-3268. 

Civ.  Code— 32  (497) 


499  DEFINITION  AND  CREATION  OF  OBLIGATIONS.  §  1428 


PART  I. 

OBLIGATIONS  IN  GENERAL. 

Title    I.  Definition  of  Obligations.     §§  1427, 1428. 

II.  Interpretation  op  Obligations.     §§  1429-1451. 

III.  Transfer  of  Obligations.     §§  1457-1468. 

IV.  Extinction  of  Obligations.     §§  1473-1543. 

TITLE  I. 
Definition  of  Obligations. 

§  1427.     Obligation,  what. 

§  1428.     How  created  and  enforced. 

§  1427.     Obligation,  what.     An  obligation  is  a  legal  duty,  by 
which  a  person  is  bound  to  do  or  not  to  do  a  certain  thing. 
Similar  provision:   Code  Civ.  Proc,  §  26. 

Legislation  §  1427.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  670. 

§  1428.     How  created  and  enforced.     An  obligation  arises 
either  from : 

One.     The  contract  of  the  parties;  or. 

Two.     The  operation  of  law.     An  obligation  arising  from 
operation  of  law  may  be  enforced  in  the  manner  provided  by 
law,  or  by  civil  action  or  proceeding.     [Amendment  approved 
1874;  Code  Amdts,  1873-74,  p.  239.] 
Obligation,  defined:   Code  Civ,  Proc,  §  26. 

Legislation  §  1428.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  671),  and  then  read:  "An  obligation  arises 
either  from:  1.  The  contract  of  the  parties;  or,  2.  The  operation  of 
law." 

2.  Amended  by  Code  Amdts.  1873-74,  p,  239. 


§  1431  CIVIL   CODE.  500 

TITLE  II. 

Interpretation  of  Obligations. 

Chapter  I.     General   Eules   of   Interpretation.     §  1429. 

II.  Joint    or    Several    Obligations.     §§  1430-1432. 

III.  Conditional    Obligations.     §§  1434-1442. 

IV.  Alternative    Obligations.     §§  1448-1451. 

CHAPTER  I. 
General  Rules  of  Interpretation. 

§   1429.     General    rules. 

§  1429.     General  rules.     The  rules  which  govern  the  inter- 
pretation of  contracts  are  prescribed  by  part  two  of  this  divi- 
sion.    Other  obligations  are  interpreted  by  the  same  rules  by 
which  statutes  of  a  similar  nature  are  interpreted. 
Interpretation  of  contracts:  See  post,  §§  1635-1661. 
Legislation  §  1429.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  672. 

CHAPTER  II. 

Joint    or    Several    Obligations. 

§   1430.     Obligations,  joint  or  several,  etc. 

§   1431.     When   joint. 

§   1432.     Contribution  between  joint  parties. 

§  1430.  Obligations,  joint  or  several,  etc.  An  obligation  im- 
posed upon  several  persons,  or  a  right  created  in  favor  of  sev- 
eral persons,  may  be : 

1.  Joint ; 

2.  Several ;  or, 

3.  Joint  and  several. 

Legislation  §  1430.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  673. 

§  1431.     When  joint.     An  obligation  imposed  upon  several 

persons,  or  a  right  created  in  favor  of  several  persons,  is  pre- 
sumed to  be  joint,  and  not  several,  except  in  the  sp'ecial  cases 
mentioned  in  the  title  on  the  interpretation  of  contracts.  This 
presumption,  in  the  case  of  a  right,  can  be  overcome  only  by 
express  words  to  the  contrary. 

Promise  joined  in  by  several,  all  of  whom  receive  some  benefit,  is 
presumed  to  be  joint  and  several:   See  post,  §  1659. 

Promise  in  the  singular,  but  executed  by  several,  is  presumed  to 
be  joint  and  several:   Post,  §  1660. 

Legislation  §  1431.  Enacted  March  21.  1872,  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  674. 


501  CONDITIONAL  OBLIGATIONS.  §  1438 

§  1432.     Contribution  between  joint  parties.     A  party  to  a 
joint,  or  joint  and  several  obligation,  wlio  satisfies  more  than 
liis  share  of  the  claim  against  all,  may  require  a  proportionate 
contribution  from  all  the  parties  joined  with  him. 
Siirety  acquires  rights  of  creditors:  See  post,  §  2848. 
Legislation  §  1432.     Plnaeted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  675. 

CHAPTER  TTI. 

Conditional   Oliligations. 

§  1434.  Obligation,  when  conditional. 

§   1436.  Conditions,  kinds   of. 

§   1436.  Condition  precedent. 

§   1437.  Conditions    concurrent. 

§  1438.  Condition   subsequent. 

§   1439.  Performance,  etc.,  of  conditions,  when  essential. 

§   1440.  When    performance,   etc.,    excused. 

§   1441.  Impossibje    or   unlawful    conditions   void. 

§   1442.  Conditions    involving    forfeiture,    how    construed. 

§  1434.  Obligation,  when  conditional.  An  obligation  is  con- 
ditional, when  the  rights  or  duties  of  any  party  thereto  depend 
upon  the  occurrence  of  an  uncertain  event. 

Legislation  §  1434.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  676. 

§  1435.  Conditions,  kinds  of.  Conditions  may  be  precedent, 
concurrent,  or  subsequent. 

Conditions  of  ownership:    See  ante,  §§  707   et  seq. 
Conditional  legacies:   See  ante,  §§  1345,  1346. 
Conditions  precedent:    See  post,  §  1436. 
Conditions  concurrent:   See  post,  §  1437. 
Conditions  subsequent:   See  post,  §  1438. 

Legislation  §  1435.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  677. 

§  1436.  Condition  precedent.  A  condition  precedent  is 
one  which  is  to  be  performed  before  some  right  dependent 
thereon  accrues,  or  some  act  dependent  thereon  is  performed. 

Unlawful  condition  precedent:    See  ante,  §  709. 
Conditions  precedent:  See  ante,  §§  707,  708,    1346. 
Legislation  §  1436.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  678. 

§  1437.  Conditions  concurrent.  Conditions  concurrent  are 
those  which  are  mutually  dependent,  and  are  to  be  performed 
at  the  same  time. 

Legislation  §  1437.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  679. 

§  1438.  Condition  subsequent.  A  condition  subsequent  is 
one  referring  to  a  future  event,  upon  the  happening  of  which 


M, 


§  1442  CIVIL  CODE.  502 

the  obligation  becomes  no  longer  binding  upon  the  other  party, 
if  he  chooses  to  avail  himself  of  the  condition. 
Conditions  subsequent:  See  ante,  §§  708,  1349. 

Legislation  §  1438.  EDacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  680. 

§  1439.     Performance,   etc.,   of   conditions,   when  essential. 

Before  any  party  to  an  obligation  can  require  another  party  to 
perform  any  act  under  it,  he  must  fulfill  all  conditions  pre- 
cedent thereto  imposed  upon  himself;  and  must  be  able  and 
offer  to  fulfill  all  conditions  concurrent  so  imposed  upon  him 
on  the  like  fulfillment  by  the  other  party,  except  as  provided 
by  the  next  section. 

Concurrent  or  precedent  conditions,  performance  of:  See  post, 
§  1498. 

Legislation  §  1439.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  681. 

§  1440.  When  performance,  etc.,  excused.  If  a  party  to  an 
obligation  gives  notice  to  another,  before  the  latter  is  in  de- 
fault, that  he  will  not  perform  the  same  upon  his  part,  and  does 
not  retract  such  notice  before  the  time  at  which  performance 
upon  his  part  is  due,  such  other  party  is  entitled  to  enforce  the 
obligation  without  previously  performing  or  offering  to  per- 
form any  conditions  upon  his  part  in  favor  of  the  former  party. 

Refusal  to  accept  performance  before  the  time  to  perform,  is 
equivalent  to  an  offer  of  performance  and  refusal:   Post,  §  1515. 

Excuse  of  performance:    See   post,  §  1511. 

Legislation  §  1440.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N".  Y.  Civ.  Code,  §  6S2. 

§  1441.  Impossible  or  unlawful  conditions  void.  A  condi- 
tion in  a  contract,  the  fulfillment  of  which  is  impossible  or  un- 
lawful, within  the  meaning  of  the  article  on  the  object  of  con- 
tracts, or  which  is  repugnant  to  the  nature  of  the  interest 
created  by  the  contract,  is  void. 

Object  of  contracts:    See   post,  §§  1595   et  seq. 

Unlawful  conditions:   See   ante,  §§  709   et  seq. 

Conditions,  when  impossible,  within  the  meaning  of  §1441:  See 
post,  §§  1596  et  seq. 

Legislation  §  1441.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  683. 

§  14^.     Conditions    involving    forfeiture,    how    construed. 

A  condition  involving  a  forfeiture  must  be  strictly  interpreted 
against  the  party  for  whose  benefit  it  is  created. 

Legislation  §  1442.  Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  684. 


503  ALTERNATIVE   OBLIGATIONS.  §  1451 


CHAPTER  IV. 

Alternative  Obligations. 

§  1448.  Who  has  the  right  of  selection. 

§  1449.  Right   of  selection,   how  lost. 

§  1450.  Alternatives  indivisible. 

§  1451.  Nullity  of  one  or  more  of  alternative  obligations. 

§  1448.  Who  has  the  right  of  selection.  If  an  obligation 
requires  the  performance  of  one  of  two  acts,  in  the  alternative, 
the  party  required  to  perform  has  the  right  of  selection,  unless 
it  is  otherwise  provided  by  the  terms  of  the  obligation. 

Legislation  §  1448.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  685. 

§  1449.  Right  of  selection,  how  lost.  If  the  party  having 
the  right  of  selection  between  alternative  acts  does  not  give 
notice  of  his  selection  to  the  other  party  within  the  time,  if 
any,  fixed  by  the  obligation  for  that  purpose,  or,  if  none  is 
so  fixed,  before  the  time  at  Avhich  the  obligation  ought  to  be 
performed,  the  right  of  selection  passes  to  the  other  party. 

Legislation  §  1449.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.   Y.  Civ.   Code,  §  686. 

§  1450.  Alternatives  indivisible.  The  party  having  the  right 
of  selection  between  alternative  acts  must  select  one  of  them 
in  its  entirety,  and  cannot  select  part  of  one  and  part  of 
another  Avithout  the  consent  of  the  other  party. 

Legislation  §  1450.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  687. 

§  1451.     Nullity  of  one  or  more  of  alternative  obligations. 

If  one  of  the  alternative  acts  required  by  an  obligation  is  such 
as  the  law  will  not  enforce,  or  becomes  unlawful,  or  impos- 
sible of  performance,  the  obligation  is  to  be  interpreted  as 
though  the  other  stood  alone. 

Legislation  §  1451.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  688. 


§  1460  civiii  CODE.  504 

TITLE  III. 

Transfer  of  Obligations. 

§"  1457.  Burden    of   obligation   not   transferable. 

§  1458.  Eights   arising  out   of   obligation   transferable. 

§  1459.  Non-negotiable   instruments   may   be   transferred. 

§  1460.  Covenants   running   with   land,   what. 

§  1461.  What   covenants  run   with   land. 

§  1462.  Same. 

§  1463.  Same. 

§  1464.  What  covenants  run  with  land  when  assigns  are  named. 

§  1465.  Who  are  bound  by  covenants. 

§  1466.  Who   are  not. 

§  1467.  Apportionment    of    covenants. 

§  146S.  Transfer  of  obligations.     Covenants  to   run  with  land. 

§  1457.  Burden  of  obligation  not  transferable.  The  burden 
of  an  obligation  may  be  transferred  with  the  consent  of  the 
party  entitled  to  its  benefit,  but  not  otherwise,  except  as  pro- 
vided by  section  fourteen  hundred  and  sixty-six. 

Legislation  §  1457.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
X.  Y.  Civ.  Code,  §  689. 

§  1458.     Rights  arising-  out  of  obligation  transferable.     A 

right  arisiiig  out  of  an  obligation  is  the  property  of  the  person 
to  whom  it  is  due,  and  may  be  transferred  as  such. 

Assignment  of  things  in  action:   See  ante,  §  954. 

Legislation  §  1458.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  690. 

§  1459.     Non-negotiable  instruments  may  be  transferred.     A 

non-negotiable  written  contract  for  the  payment  of  money  or 
personal  property  may  be  transferred  by  indorsement,  in  like 
manner  with  negotiable  instruments.  Such  indorsement  shall 
transfer  all  the  rights  of  the  assignor  Under  the  instrument  to 
the  assignee,  subject  to  all  equities  and  defenses  existing  in 
favor  of  the  maker  at  the  time  of  the  indorsement. 

Negotiable  instruments,  what  are:  See  post,  §§  3087  et  seq. 

Legislation  §  1459.     Enacted   March   21.   1872. 

§  1460.  Covenants  running  with  land,  what.  Certain  cov- 
enants, contained  in  grants  of  estates  in  real  property,  are  ap- 
purtenant to  such  estates,  and  pass  witlf  them,  so  as  to  bind  the 
assigns  of  the  covenantor  and  to  vest  in  the  assigns  of  the 
covenantee,  in  the  same  manner  as  if  they  had  personally 
entered  into  them.  Such  covenants  are  said  to  run  with  the 
land. 

Implied   covenants:   See  ante,  §  1113.  * 


505  ALTERNATIVE   OBLIGATIONS.  §  1465 

Covenants  running  with  land:   See  succeeding  sections  of  this  title, 
especially  §§  1462,   1464. 

Legislation  §  1460.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  691. 

§  1461.  What  covenants  run  w^ith  land.  The  only  covenants 
which  run  with  the  land  are  those  specified  in  this  title,  and 
those  which  are  incidental  thereto. 

Legislation  §  1461.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  692. 

§  1462.  Same.  Every  covenant  contained  in  a  grant  of  an 
estate  in  real  property,  which  is  made  for  the  direct  benefit 
of  the  property,  or  some  part  of  it  then  in  existence,  runs  with 
the  land. 

Covenants  running  with  the  land:    See  post,  §§  1463,   1468. 
Effect  of  transfers,  generally:  See  ante,  §§  1083  et  seq. 
Legislation  §  1462.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  693. 

§  1463.  Same.  The  last  section  includes  covenants  ' '  of  war- 
ranty," "for  quiet  enjoyment,"  or  for  further  assurance  on  the 
part  of  a  grantor,  and  covenants  for  the  payment  of  rent, 
or  of  taxes  or  assessments  upon  the  land,  on  the  part  of  a 
grantee. 

Covenants  running  with  the  land:    See   ante,  §  1462;    post,  §  1468. 

Damages  for  breach  of  above  covenants:   See  post,  §  3304. 

Letter  of  real  property  to  secure    ctuiet    possession    to    hirer:     See 

post,  §  1927. 

Legislation  §  1463.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  694. 

§  1464.     What  covenants  run  with  land  v^^hen  assigns  are 

named.     A  covenant  for  the  addition  of  some  new  thing  to  real 

property,  or  for  the  direct  benefit  of  some  part  of  the  property 

not  then  in  existence  or  annexed  thereto,  when  contained  in  a 

grant  of  an  estate  in  such  property,  and  made  by  the  covenantor 

expressly  for  his  assigns  or  to  the  assigns  of  the  covenantee, 

runs  with  lanS  so  far  only  as  the  assigns  thus  mentioned  are 

concerned. 

Covenants  running  with  land:   See  ante,  §§  1460  et  seq. 

Legislation  §  1464.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  695. 

§  1465.     Who  are  bound  by  covenants.     A  covenant  running 

with  the  land  binds  those  only  who  acquire  the  whole  estate 

of  the  covenantor  in  some  part  of  the  property. 

Legislation  §  1465.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  696. 


§  1468  CIVIL  CODE.  506 

§  1466.  Who  are  not.  No  one,  merely  by  reason  of  having 
acquired  an  estate  subject  to  a  covenant  running  with  the  land, 
is  liable  for  a  breach  of  the  covenant  before  he  acquired  the 
estate,  or  after  he  has  parted  Avith  it  or  ceased  to  enjoy  its 
benefits. 

Legislation  §  1466.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  697. 

§  1467.  Apportionment  of  covenants.  Where  several  per- 
sons, holding  by  several  titles,  are  subject  to  the  burden  or 
entitled  to  the  benefit  of  a  covenant  running  with  the  land,  it 
must  be  apportioned  among  them  according  to  the  value  of  the 
property  subject  to  it  held  by  them  respectively,  if  such  value 
can  be  ascertained,  and  if  not,  then  according  to  their  re- 
spective interests  in  point  of  quantity. 

Legislation  §  1467.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  y.  Civ.  Code,  §  698. 

§  1468.  Transfer  of  obligations.  Covenants  to  run  with  land. 
A  covenant  made  by  the  owner  of  land  with  the  owner  of  other 
land  to  do  or  refrain  from  doing  some  act  on  his  own  land, 
which  doing  or  refraining  is  expressed  to  be  for  the  benefit  of 
the  land  of  the  covenantee,  and  which  is  made  by  the  cov- 
enantor expressly  for  his  assigns  or  to  the  assigns  of  the 
Covenantee,  runs  with  hoth  of  such  parcels  of  land. 

Covenants  running  with  the  land:   See  ante,  §§  1462,  1463. 
Legislation  §  1468.     1.  Addition  bv   Stats.   1901,   p.   407;    unconstitu- 
tional.   See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  610;  the  code  commissioner  saying,  "This 
is  a  new  section,  and  is  designed  to  remove  any  doubt  that  covenants 
of  the  kind  mentioned  therein  run  with  the  land." 

TITLE  IV. 

Extinction  of  Obligations, 

Chapter  I.  Performance.     §§  147.3-1479. 

II.  Offer   of   Performance.     §§  1485-1505. 

ni.  Prevention    of   Performance    or    Offer.     §§  15J.1-1515. 

IV.  Accord  and  Satisfaction.     §§  1521-1524. 

V.  Novation.     §§  1530-1533. 

VI.  Eelease.     §§  1541-1543. 

CHAPTER  I. 
Performance. 
§  1473.     Obligation  extinguished  by  performance. 
§   1474.     Performance  b}^  one   of   several  joint   debtors. 
§  1475.     Performance   to   one   of  joint   creditors. 
§  1476.     Effect  of  directions  by  creditors. 
§  1477.     Partial   performance. 
§  1478.     Payment,  what. 
§   1479.     Application   of   general   performance. 


507  PERFORMANCE  OF  OBLIGATIONS.  §  1478 

§  1473.  Obligation  extinguished  by  performance.  Full  per- 
formance of  an  obligation,  by  the  party  whose  duty  it  is  to 
perform  it,  or  by  any  other  person  on  his  behalf,  and  with  his 
assent,  if  accepted  by  the  creditor,  extinguishes  it-. 

Legislation  §  1473.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  699. 

2.  Amendment  by  Stats.  1901,  p.  407;  unconstitutional.  See  note,  §  4, 
ante. 

§  1474.  Performance  by  one  of  several  joint  debtors.  Per- 
formance of  an  obligation,  by  one  of  several  persons  who  are 
jointly  liable  under  it,  extinguishes  the  liability  of  all. 

Legislation  §  1474.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Cod^,  §  700. 

§  1475.  Performance  to  one  of  joint  creditors.  An  obliga- 
tion in  favor  of  several  persons  is  extinguished  by  performance 
rendered  to  any  of  them,  except  in  the  case  of  a  deposit  made 
by  owners  in  common,  or  in  joint  ownership,  which  is  regulated 
by  the  title  on  deposit. 

Joint  deposit:    See  post,  §  1828. 

Legislation  §  1475.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  701. 

§  1476.  Effect  of  directions  by  creditors.  If  a  creditor,  or 
any  one  of  two  or  more  joint  creditors,  at  any  time  directs  the 
debtor  to  perform  his  obligation  in  a  particular  manner,  the 
obligation  is  extinguished  by  performance  in  that  manner,  even 
though  the  creditor  does  not  receive  the  benefit  of  such  per- 
formance. 

Legislation  §  1476.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  702. 

§  1477.  Partial  performance.  A  partial  performance  of  an 
indivisible  obligation  extinguishes  a  corresponding  proportion 
thereof,  if  the  benefit  of  such  performance  is  voluntarily  re- 
tained by  the  creditor,  but  not  otherwise.  If  such  partial  per- 
formance is  of  such  a  nature  that  the  creditor  cannot  avoid 
retaining  it  without  injuring  his  own  property,  his  retention 
thereof  is  not  presumed  to  be  voluntary. 

Part  performance,  effect  of:   See  post,  §§  1486,  1524,  2822. 

Legislation  §  1477.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  703. 

§  1478.  Payment,  what.  Performance  of  an  obligation  for 
the  delivery  of  money  oidy,  is  called  payment. 

Legislation  §  1478.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  704. 


k^ 


§  1479  CIVIL  CODE.  508 

§  1479.  Application  of  general  performance.  AVhere  a 
debtor,  under  several  obligations  to  another,  does  an  act,  by 
way  of  performance,  in  whole  or  in  part,  which  is  equally 
applicable  to  tAvo  or  more  of  such  obligations,  such  performance 
must  be  applied  as  follows : 

One.  If,  at  the  time  of  performance,  the  intention  or  desire 
of  the  debtor  that  such  performance  should  be  applied  to  the 
extinction  of  any  particular  obligation,  be  manifested  to  the 
creditor,  it  must  be  so  applied. 

Two.  If  no  such  application  be  then  made,  the  creditor, 
within  a  reasonable  time  after  such  performance,  may  apply 
it  toward  the  extinction  of  any  obligation,  performance  of 
which  was  due  to  him  from  the  debtor  at  the  time  of  such  per- 
formance ;  except  that  if  similar  obligations  were  due  to  him 
both  individually  and  as  a  trustee,  he  must,  unless  otherwise 
directed  by  the  debtor,  apply  the  performance  to  the  extinction 
of  all  such  obligations  in  equal  proportion ;  and  an  application 
once  made  by  the  creditor  cannot  be  rescinded  without  the 
consent  of  [the]  debtor. 

Three.  If  neither  party  makes  such  application  within  the 
time  prescribed  herein,  the  performance  must  be  applied  to  the 
extinction  of  obligations  in  the  following  order ;  and,  if  there 
be  more  than  one  obligation  of  a  particular  class,  to  the  extinc- 
tion of  all  in  that  class,  ratably : 

1.  Of  interest  due  at  the  time  of  the  performance. 

2.  Of  principal  due  at  that  time. 

3.  Of  the  obligation  earliest  in  date  of  maturity. 

4.  Of  an  obligation  not  secured  by  a  lien  or  collateral  under- 
taking. 

5.  Of  an  obligation  secured  by  a  lien  or  collateral  undertak- 
ing. [Amendment  approved  1874 ;  Code  Anidts.  1873-74, 
p.  239.] 

Legislation  §  1479.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  705),  and  then  read:  "Where  a  debtor,  under 
several  obligations  to  another,  does  an  act,  by  way  of  performance, 
which  is  equally  applicable  to'  two  or  more  of  such  obligations,  such 
performance  is  applied  as  follows:  1.  If,  at  the  time  of  performance, 
the  intention  or  desire  of  the'  debtor  that  such  performance  should  be 
applied  to  the  extinction  of  any  particular  obligation,  is  manifested 
to  the  creditor,  it  is  so  applied;  2.  If  no  such  application  is  then 
made,  the  creditor,  within  a  reasonable  time  after  such  performance, 
may  apply  it  toward  the  extinction  of  any  obligation,  performance 
of  which  was  due  to  him  from  the  debtor  at  the  time  of  such  perform- 
ance; except  that  if  similar  obligations  were  due  to  him  both  individ- 
ually and  as  a  trustee,  he  must,  unless  otherwise  directed  by  the  debtor, 
apply  the  performance  to  the  extinction  of  all  such  obligations  in 
equal  proportion;  and  an  application  once  made  by  the  creditor  cannot 
be  rescinded  without  the  consent  of  the  debtor;  3.  If  neither  party 
makes  such  application  within  the  time  prescribed  herein,  the  perform- 


509  OFFER  OF  PERFORMANCE  OF  OBLIGATIONS.  §  1486 

ance'  is  applied  to  the  extinction  of  obligations  in  the  following  order; 
and,  if  there  is  more  than  one  obligation  of  a  particular  class,  to  the 
extinction  of  all  in  that  class,  ratably:  (1.)  Of  an  obligation  due  at 
the  time  of  performance;  (2.)  Of  an  obligation  not  voidable  at  the 
option  of  the  debtor;  (3.)  Of  an  obligation  secured  by  a  lien  or  col- 
lateral undertaking;  (4.)  Of  interest;  (5.)  Of  the  obligation  earliest 
in  date  of  maturity;  (6.)  Of  the  obligation  which  it  is  most  for  the 
interest  of  the  debtor  to  extinguish." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  289. 

3.  Amendment  by  Stats.  1901,  p  407;  unconstitutional.  See  note,  §  4, 
ante. 

CHAPTER  II. 

Offer  of  Performance. 

§  1485.  Obligation   extinguished   by   offer   of   performance. 

§  1486.  Offer  of  partial  performance. 

§  1487.  By  whom  to  be  made.  ' 

§  1488.  To  whom  to  be  made.  ' 

§  1489.  Where  offer  may  be  made. 

§  1490.  When  offer  must  be  made. 

§  1491.  Same. 

§  1492.  Compensation   after   delay  in   performance. 

§  1493.  Offer  to  be  made  in  good  faith. 

§  1494.  Conditional   offer. 

§  1495.  Ability    and   willingness    essential. 

§  1496.  Production   of  thing  to  be  delivered  not  necessary. 

§  1497.  Thing  offered  to   be  kept   separate. 

§  1498.  Performance   of   condition   precedent. 

§  1499.  Written  receipts. 

§  1500.  Extinction   of  pecuniary  obligation. 

§  1501.  Objections  to  mode  of  offer. 

§  1502.  Title  to  thing  offered. 

§  1503.  Custody   of  thing  offered. 

§  1504.  Effect  of  offer  on  accessories  of  obligation. 

§  1505.  Creditor's  retention  of  thing  which  he  refuses  to  accept. 

§  1485.     Obligation  extinguished  by  offer  of  performance. 

An  obligation  is  extinguished  by  an  offer  of  performance,  made 
in  conformity  to  the  rules  herein  prescribed,  and  with  intent 
to  extinguish  the  obligation. 

Tender  of  payment:  See  post,  §§  1500,  1504. 

Tender  of  article  passes  title:  Post,  §  1502;  and  see  post,  §  1504. 

Duties  of  person  making  tender:   See  post,  §  1503. 

Tender,  deposit  of  money  in  court:   See  Code  Civ.  Proc,  §  1030. 

Tender  of  amount  due,  effect  of  on  costs:  See  Code  Civ.  Proc. 
§  1030. 

Tender  is  equivalent  to  pajnnent  on  redemption  from  execution 
sale:   See  Code  Civ.  Proc,  §  704. 

Offer  in  writing  is  equivalent  to  tender:  See  Code  Civ.  Proc, 
§  2074. 

Legislation  §  1485.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  706. 

§  1486.     Offer  of  partial  performance.     An  offer  of  partial 
performance  is  of  no  effect. 


§  1490  CIVIL   CODE.  510 

Part  performance,  effect  of:  See  ante,  §  1477;  post,  §§  1524,  2822. 
Legislation  §  1486.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  707. 

§  1487.  By  whom  to  be  made.  An  offer  of  performance 
must  be  made  by  the  debtor,  or  by  some  person  on  his  behalf 
and  with  his  assent. 

Legislation  §  1487.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  708. 

§  1488.  To  whom  to  be  made.  An  offer  of  performance 
must  be  made  to  the  creditor,  or  to  any  one  of  two  or  more 
joint  creditors,  or  to  a  person  authorized  by  one  or  more  of 
them  to  receive  or  collect  what  is  due  under  the  obligation,  if 
such  creditor  or  authorized  person  is  present  at  the  place  where 
the  offer  may  be  made ;  and  if  not,  wherever  the  creditor  may 
be  found.  [Amendment  approved  1873 ;  Code  Amdts.  1873-74, 
p.  240.] 

Where  offer  may  be  made:   See  post,  §  1489. 

Legislation  §  1488.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  709. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  240,  at  end  of  section,  sub- 
stituting "wherever  the  creditor  may  be  found"  for  "then  to  a  no- 
tary public." 

§  1489.  Where  offer  may  be  made.  In  the  absence  of  an 
express  provision  to  the  contrary,  an  offer  of  performance  may 
be  made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor ;  or, 

2.  Wherever  the  person  to  whom  the  offer  ought  to  be  made 
can  be  found ;  or, 

3.  If  such  person  cannot,  with  reasonable  diligence,  be  found 
within  this  state,  and  within  a  reasonable  distance  from  his 
residence  or  place  of  business,  or  if  he  evades  the  debtor,  then 
at  his  residence  or  place  of  business,  if  the  same  can,  with 
reasonable  diligence,  be  found  within  the  state;  or, 

4.  If  this  cannot  be  done,  then  at  any  place  within  this  state. 

Delivery  of  personalty:   See  post,  §§  1753  et  seq. 

As  to  giving  notice  of  election  as  to  delivery  on  sales  of  personalty, 

see  post,  §  1756. 

Legislations  1489.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  710. 

§  1490.  When  offer  must  be  made.  Where  an  obligation 
fixes  a  time  for  its  performance,  an  offer  of  performance  must 
be  made  at  that  time,  within  reasonable  hours,  and  not  before 
nor  afterwards. 

Legislation  §  1490.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  711. 


511  OFFER  OF  PERFORMANCE  OF  OBLIGATIONS.  §  1497 

§  1491.     Same.     "Where  an  obligation  does  not  fix  the  time 

for  its  performance,  an  offer  of  performance  may  be  made  at 

any  time  before  the  debtor,  upon  a  reasonable  demand,  has 

refused  to  perform. 

Legislation  §  1491.     Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  712. 

§  1492,  Compensation  after  delay  in  performance.  Where 
delay  in  performance  is  capable  of  exact  and  entire  compensa- 
tion, and  time  has  not  been  expressly  declared  to  be  of  the 
essence  of  the  obligation,  an  offer  of  performance,  accompanied 
with  an  offer  of  such  compensation,  may  be  made  at  any  time 
after  it  is  due,  but  without  prejudice  to  any  rights  acquired  by 
the  creditor,  or  by  any  other  person,  in  the  mean  time. 

Legislation  §  1492.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  713. 

§  1493.  Offer  to  be  made  in  g-ood  faith.  An  offer  of  per- 
formance must  be  made  in  good  faith,  and  in  such  manner  as 
is  most  likely,  under  the  circumstances,  to  benefit  the  creditor. 

Legislation  §  1493.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  714. 

§  1494.     Conditional  offer.     An  offer  of  performance  must 

be  free  from  any  conditions  which  the  creditor  is  not  bound, 

on  his  part,  to  perform. 

Offer  of  perfonnance  upon  condition:  See  post,  §§  1498,  1499. 

Legislation  §  1494.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  715. 

§  1495.  Ability  and  willingness  essential.  An  offer  of  per- 
formance is  of  no  effect  if  the  person  making  it  is  not  able 
and  willing  to  perform  according  to  the  offer. 

Legislation  §  1495.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  716. 

§  1496.     Production  of  thing-  to  be  delivered  not  necessary. 

The  thing  to  be  delivered,  if  any,  need  not  in  any  case  be  act- 
ually produced,  upon  an  offer  of  performance,  unless  the  offer 
is  accepted. 

Legislation  §  1496.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  717. 

§  1497.     Thing  offered  to  be  kept  separate.     A  thing,  when 

offered  by  way  of  performance,  must  not  be  mixed  with  other 

things  from  which  it  cannot  be  separated  immediately  and 

without  difficulty. 

Vendor  of  personalty  must  put  in  condition  for  delivery:    Post 
§1753.  ' 


§  1503  CIVIL  CODE.  512 

'  Legislation  §  1497.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  718. 

§  1498.  Performance  of  condition  precedent.  When  a 
debtor  is  entitled  to  the  performance  of  a  condition  precedent 
to,  or  concurrent  with,  performance  on  his  part,  he  may  make 
his  offer  to  depend  upon  the  due  performance  of  such  condi- 
tion. 

Conditions  precedent:   See  ante,  §  1439. 

Perfonnance  of  concurrent  conditions:   See  ante,  §  1439. 

Legislation  §  1498.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Cod^,  §  719. 

§  1499.  Written  receipts.  A  debtor  has  a  right  to  require 
from  his  creditor  a  written  receipt  for  any  property  delivered 
in  performance  of  his  obligation. 

Whoever  pays  entitled  to  receipt:   See  Code  Civ.  Proc,  §  2075. 
Legislation  §  1499.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  720.     The  code  commissioners  say:    "This  provision 
is  new.     Its  propriety  should  seem  scarcely  to  admit  of  doubt." 

§  1500.  Extinction  of  pecuniary  oblig-ation.  An  obligation 
for  the  payment  of  money  is  extinguished  by  a  due  offer  of 
payment,  if  the  amount  is  immediately  deposited  in  the  name 
of  the  creditor,  with  some  bank  of  deposit  within  this  state,  of 
good  repute,  and  notice  thereof  is  given  to  the  creditor. 
Tender  stopping  interest:   See  post,  §  1504. 

Legislation  §  1500.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  721. 

§  1501.  Objections  to  mode  of  offer.  All  objections  to  the 
mode  of  an  offer  of  performance,  which  the  creditor  has  an 
opportunity  to  state  at  the  time  to  the  person  making  the  offer, 
and  which  could  be  then  obviated  by  him,  are  waived  bj^  the 
creditor,  if  not  then  stated. 

Similar  provision,  although  more  specific  in  its  requirements:   Code 

Civ.   Proc,  §  2076. 

Legislation  §  1501.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  722. 

§  1502.  Title  to  thing  offered.  The  title  to  a  thing  duly 
offered  in  performance  of  an  obligation  passes  to  the  creditor, 
if  the  debtor  at  the  time  signifies  his  intention  to  that  effect. 

Legislation  §  1502.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  723.  Des  Arts  v.  Leggett,  16  N.  Y.  582;  Lamb  v. 
Lathrop,  13  Wend.  95;  Rix  v.  Strong,  1  Eoot,  55;  see  Smith  v.  Loomis, 
7  Conn.  110. 

§  1503.  Custody  of  thing-  offered.  The  person  offering  a 
thing,  other  than  money,  by  way  of  performance,  must,  if  ho 
means  to  treat  it  as  belonging  to  the  creditor,  retain  it  as  a 


513         PREVENTION  OF  PERFORMANCE  OR  OFFER.       §  1511 

depositary  for  hire,  until  the  creditor  accepts  it,  or  until  he 
has  given  reasonable  notice  to  the  creditor  that  he  will  retain 
it  no  longer,  and,  if  with  reasonable  diligence  he  can  find  a  suit- 
able depositary  therefor,  until  he  has  deposited  it  with  such 
person. 

Depositary  for  hire:  See  post,  §  1852. 

Legislation  §  1503,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  724. 

§  1504.     Effect  of  offer  on  accessories  of  obligation.     An 

offer  of  payment  or  other  performance,  duly  made,  though  the 
title  to  the  thing  offered  be  not  transferred  to  the  creditor, 
stops  the  running  of  interest  on  the  obligation,  and  has  the 
same  effect  upon  all  its  incidents  as  a  performance  thereof. 

Tender  transfers  title:   See  ante,  §  1502. 
Tender  bars  costs:   Code  Civ.  Proc,  §  1030. 

Effect  of  offer  in  writing  is  the  same  as  tender:   Code  Civ.  Proe., 
§  2074. 

Legislation  §  1504.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  725. 

§  1505.  Creditor's  retention  of  thing-  which  he  refuses  to 
accept.  If  anything  is  given  to  a  creditor  by  way  of  perform- 
ance, which  he  refuses  to  accept  as  such,  he  is  not  bound  to 
return  it  without  demand ;  but  if  he  retains  it,  he  is  a  gratuitous 
depositary  thereof. 

Costs  when  tender  is  made  hefore  suit  brought:    Code   Civ.  Proc, 
§  1030. 
Gratuitous  depositary:   See  post,  §§  1844  et  seq. 

Legislation  §  1505.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  726. 

CHAPTER  HI. 

Prevention  of  Performance  or  Offer. 

§   1511.  What   excuses  performance,   etc. 

§   1512.  Effect   of   prevention   of   performance. 

§  1513.  Same.     [Repealed.] 

§  1514.  Same. 

§   1515.  Effect   of   refusal    to   accept   performance   before   offer. 

§  1511.  What  excuses  performance,  etc.  The  want  of  per- 
formance of  an  o1)ligation,  or  of  an  offer  of  performance,  in 
whole  or  in  part,  or  any  delay  therein,  is  excused  by  the  follow- 
ing causes,  to  the  extent  to  which  they  operate : 

1.  When  such  performance  or  offer  is  prevented  or  delayed 
by  the  act  of  the  creditor,  or  l^y  the  operation  of  law,  even 
though  there  may  have  been  a  stipulation  that  this  shall  not  be 
an  excuse ; 

Civ.  Code — 33 


§  1515  CIVIL   CODE.  514 

2.  When  it  is  prevented  or  delayed  by  an  irresistible,  super- 
human cause,  or  by  the  act  of  public  enemies  of  this  state  or  of 
the  United  States,  unless  the  parties  have  expressly  agreed  to 
the  contrary ;  or, 

3.  When  the  debtor  is  induced  not  to  make  it,  by  any  act  of 
the  creditor  intended  or  naturally  tending  to  have  that  effect, 
done  at  or  before  the  time  at  Avhich  such  performance  or  offer 
may  be  made,  and  not  rescinded  before  that  time. 

Excuse  of  performance:  See  ante,  §  1440. 

Legislation  §  1511.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  727. 

§  1512.  Effect  of  prevention  of  performance.  If  the  per- 
formance of  an  obligation  be  prevented  by  the  creditor,  the 
debtor  is  entitled  to  all  the  benefits  which  he  would  have  ob- 
tained if  it  had  been  performed  bv  both  parties.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  240.] 

Legislation  §  1512.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  72S),  and  then  read:  "If  the  performance  of 
an  obligation  is  prevented  by  the  creditor,  the  debtor  is  entitled  to  all 
the  benefits  which  he  would  have  obtained  by  its  performance  on  both 

2.  Amended  by  Code  Amdts.  1873-74,  p.  240. 

§1513.  Same.  [Repealed  1874;  Code  Amdts.  1873-74,  p. 
240.] 

Legislation  §  1513.     1.  Enacted     March     21,     1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  240. 

§  1514.  Same.  If  performance  of  an  obligation  is  prevented 
by  any  cause  excusing  performance,  other  than  the  act  of  the 
creditor,  the  debtor  is  entitled  to  a  ratable  proportion  of  the 
consideration  to  which  he  would  have  been  entitled  upon  full 
performance,  according  to  the  benefit  which  the  creditor  re- 
ceives from  the  actual  performance. 

Legislation  §  1514.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  730. 

§  1515.  Effect  of  refusal  to  accept  performance  before  offer. 
A  refusal  by  a  creditor  to  accept  performance,  made  before 
an  offer  thereof,  is  equivalent  to  an  offer  and  refusal,  unless, 
before  performance  is  actually  due,  he  gives  notice  to  the 
debtor  of  his  Avillingness  to  accept  it. 

Refusal  to  perform  entitles  the  other  party  to  enforce  the  obliga- 
tion, without  performance  on  his  part:  See  ante,  §  1440. 

Legislation  §  1515.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  731. 


I 


515  ACCORD  AND   SATISFACTION.  §  1524 

CHAPTER  IV. 

Accord  and  Satisfaction. 

§   1521.  Accord,    what. 

§   1522.  Effect  of  accord. 

§  1523.  Satisfaction,   what. 

§  1524.  Part  performance. 

§  1521.  Accord,  what.  An  accord  is  an  agreement  to  ac- 
cept, in  extinction  of  an  obligation,  something  different  from  or 
less  than  that  to  which  the  person  agreeing  to  accept  is  entitled. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  240.] 

Release  of  oMigations:   See  post,  §§  1541  et  seq. 

Substituting  new  obligation  for  existing  one  is  novation:  See  post, 

§§  1530  et  seq. 

Order  on  third  person,  effect  of:   See  post,  §  1533. 

Legislation  §  1521.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code.  §  732),  and  then  read:  "An  accord  is  an  agree- 
ment to  accept,  in  extinction  of  an  obligation,  something  to  which  the! 
person  agreeing  to  accept  is  not  otherwise  entitled." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  240. 

§  1522.  Effect  of  accord.  Thongh  the  parties  to  an  accord 
are  bound  to  execute  it,  yet  it  does  not  extinguish  the  obliga- 
tion until  it  is  fully  executed. 

Legislation  §  1522.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  733. 

§  1523.  Satisfaction,  what.  Acceptance,  by  the  creditor,  of 
the  consideration  of  an  accord  extinguishes  the  obligation,  and 
is  called  satisfaction. 

Part  performance:    See  infra,  §  1524. 

Legislation  §  1523.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  734. 

§  1524.  Part  performance.  Part  performance  of  an  obliga- 
tion, either  before  or  after  a  breach  thereof,  when  expressly  ac- 
cepted by  the  creditor  in  writing,  in  satisfaction,  or  rendered 
in  pursuance  of  an  agreement  in  writing  for  that  purpose, 
though  without  any  new  consideration,  extinguishes  the  obliga- 
tion. [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  241.] 

Part  performance:    See  ante,  §§  1477,  1486;   post,  §  2822. 

Legislation  §  1524.  1.  Enacted  March  21,  1872;  based  on  Stats.  1868, 
p.  31. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  241,  adding  the  words  "in 
writing"  in  both  instances. 


§  1533  ~  CIVIL  CODE.  516 

CHAPTER  V. 

Novation. 

§  1530.  Novation,   what. 

§  1531.  Modes    of   novation. 

§  1532.  Novation   a   contract. 

§  1533.  Eescission    of    novation. 

§  1530.  Novation,  what.  Novation  is  the  substitution  of  a 
new  obligation  for  an  existing  one. 

Novation  a  contract:   See  §  1532,  infra. 

Right  to  sue  on  contract  made  for  one's  benefit:   See  post,  §  1559. 
Legislation  §  1530.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  736. 

§  1531.     Modes  of  novation.     Novation  is  made : 

1.  By  the  substitution  of  a  new  obligation  between  the  same 
parties,  with  intent  to  extinguish  the  old  obligation  ; 

2.  By  the  substitution  of  a  new  debtor  in  place  of  the  old  one, 
with  intent  to  release  the  latter ;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place  of  the  old 
one,  with  intent  to  transfer  the  rights  of  the  latter  to  the 
former. 

Legislation  §  1531.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  737. 

§  1532.  Novation  a  contract.  Novation  is  made  by  con- 
tract, and  is  sul)ject  to  all  the  rules  concerning  contracts  in 
general. 

Legislation  §  1532.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  738. 

§  1533.  Rescission  of  novation.  When  the  obligation  of  a 
third  person,  or  an  order  upon  such  person  is  accepted  in  satis- 
faction, the  creditor  may  rescind  such  acceptance  if  the  debtor 
prevents  such  person  from  complying  with  the  order,  or  from 
fulfilling  the  obligation ;  or  if,  at  the  time  the  obligation  or 
order  is  received,  such  person  is  insolvent,  and  this  fact  is 
unknown  to  the  creditor,  or  if,  before  the  creditor  can  with 
reasonable  diligence  present  the  order  to  the  person  upon  whom 
it  is  given,  he  becomes  insolvent.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  241.] 

Legislation  §  1533.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft  N.  Y.  Civ.  Code',  §  740),  the  latter  part  of  the  section  then  read- 
ing, "or  if,  before  the  creditor  can  with  reasonable  diligence  reach  such 
person,  he  becomes  insolvent." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  241. 


517  RELEASE  OF  OBLIGATIONS.       '        §  1543 

CHAPTER  VI. 

Release. 

§   1541.     Obligation   extinguished   by   release. 

§   1542.     Certain  claims  not  affected  by  general  release. 

§   1543.     Release  of  one  of  several  joint  debtors. 

§  1541.  Obligation  extinguished  by  release.  An  obligation 
is  extinguished  by  a  release  therefrom  given  to  the  debtor  by 
the  creditor,  upon  a  new  consideration,  or  in  writing,  with  or 
without  new  consideration. 

Writing  imports  a  consideration:    Post,  §  1614. 

Legislation  §  1541.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  741. 

§  1542.     Certain  claims  not  affected  by  general  release.    A 

general  release  does  not  extend  to  claims  which  the  creditor 
does  not  know  or  suspect  to  exist  in  his  favor  at  the  time  of 
executing  the  release,  which  if  known  by  him  must  have  ma- 
terially affected  his  settlement  with  the  debtor.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  241.] 

Legislation  §  1542.  1.  Enacted  March  21,  1872  (based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  742),  and  then  read:  "A  general  release  does  not  ex- 
tend to  claims  which  the  creditor  did  not  know  or  suspect  to  exist  in 
■    his  favor  at  the  time  of  executing  the  release." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  241. 

§  1543.     Release  of  one  of  several  joint  debtors.     A  release 
of  one  of  two  or  more  joint  debtors  does  not  extinguish  the 
obligations  of  any  of  the  others,  unless  they  are  mere  guar- 
antors ;  nor  does  it  affect  their  right  to  contribution  from  him. 
Guarantor's  liability  discharged    by  what    dealings    with    debtor: 
See  post,  §  2819. 

Rights  of  sureties:   See  post,  §  2844. 

Legislation  §  1543.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Cod6,  §  743. 


§  1550  CIVIL   CODE.  51S 

PAET  II. 

CONTRACTS. 

Title  I.  Nature  of  a  CoNTRiVCT.     §§  1549-1615. 

II.  Manner  op  Creating  Contracts.     §§  1619-1629. 

III.  Interpretation  of  Contracts.     §§  1635-1661. 

IV.  Unlawful  Contracts.     §§  1667-1676. 

V.  Extinction  of  Contracts.     §§  1682-1701. 

TITLE  I. 
Nature  of  a  Contract. 

Chapter  I.  Definition.     §§  1549,    1550. 

II.  Parties.     §§  1556-1559. 

ni.  Consent.     §§  1565-1589. 

IV.  Object.     §§  1595-1599. 

V.  Consideration.     §§  1605-1615. 

CHAPTER  I. 

Definition. 

§  1549.     Contract,  what. 

§  1550.     Essential    elements   of    contract. 

§  1549.     Contract,  what.     A  contract  is  an  agreement  to  do 
or  not  to  do  a  certain  thing. 

Legislation  §  1549.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  744. 

§  1550.     Essential  elements  of  contract.     It  is  essential  to 
the  existence  of  a  contract  that  there  slionid  be : 

1.  Parties  capable  of  contracting ; 

2.  Their  consent; 

3.  A  lawful  object ;  and, 

4.  A  sufficient  cause  or  consideration. 

Consent:  See  post,  §§  1565  et  seq. 
Unlawful  contracts:  See  post,  §  1667. 
Consideration:  See  post,  §§  1605  et  seq. 

Legislation  §  1550.     Enacted  March  21,  1872;  based  on  Eiol.l's  Draft, 
N.  Y.  Civ.  Code,  §  745. 


619  PARTIES  TO  CONTRACTS.  §  1559 

CHAPTER  II. 
Parties. 

§   1556.     Who   may   contract. 

§   1557.     Minors,  etc. 

§  1558.     Identification  of  parties  necessary. 

§   1559.     When    contract   for   benefit   of   third   person   may   be   enforced. 

§  1556.  Who  may  contract.  All  persons  are  capable  of  con- 
tracting, except  minors,  persons  of  unsound  mind,  and  persons 
deprived  of  civil  rights. 

Contracts  of  infants:   See  ante,  §§33  et  seq. 

Contracts  of  persons   of  unsound  mind:   See  ante,  §§  38  et  seq. 

Contracts  of  married  women:  See  ante,  §§  158,  159,  167. 

Legislation  §  1556.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  746.  The  code  commissioners  say:  "The  disabilities 
of  married  women  are  entirely  removed  by  §  79." 

§  1557.  Minors,  etc.  Minors  and  persons  of  unsound  mind, 
have  only  such  capacity  as  is  defined  by  part  one  of  division 
one  of  this  code. 

Powers  of  minors:   See  ante,  §§33  et  seq. 

Legislation  §  1557.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  747. 

§  1558.  Identification  of  parties  necessary.  It  is  essential 
to  the  validity  of  a  contract,  not  only  that  the  parties  should 
exist,  but  that  it  should  be  possible  to  identify  them. 

Legislation  §  1558.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  748. 

§  1559.  When  contract  for  benefit  of  third  person  may  be 
enforced.  A  contract,  made  expressly  for  the  benefit  of  a  third 
person,  may  be  enforced  by  him  at  any  time  before  the  parties 
thereto  rescind  it. 

Legislation  §  1559.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  749. 


§  1567  CIVIL  CODE.  520 


CHAPTER  HI.- 

Consent. 

§   1565.  Essentials   of   consent. 

§  1566.  Consent,   when   voidable. 

§  1567.  Apparent   consent,  when  not  free. 

§  1568.  When  deemed  to  have  been  obtained  by  fraud,  etc. 

§  1569.  Duress,  what. 

§   1570.  Menace,   what. 

§   1571.  Fraud,   actual   or   constructive. 

§  1572.  Actual  fraud,  what. 

§   1573.  Constructive  fraud. 

§  1574.  Actual   fraud   a   question   of  fact. 

§  1575.  Undue  influence,  what. 

§   1576.  Mistake,  what. 

§  1577.  Mistake   of   fact. 

§  1578.  Mistake  of  law. 

§   1579.  Mistake   of   foreign   laws. 

§   1580.  Mutuality  of   consent. 

§   1581.  Communication  of  consent. 

§   1582.  Mode   of   communicating   acceptance   of  proposal. 

§   1583.  When  communication  deemed   complete. 

§  1584.  Acceptance  by   performance   of   conditions. 

§  1585.  Acceptance   must   be  absolute. 

§  1586.  Revocation  of  proposal. 

§   1587.  Eevocation,  how  made. 

§  1588'.  Eatification    of    contract    void   for   want    of    consent. 

§   1589.  Assumption  of  obligation  by  acceptance   of  benefits. 

§  1565.  Essentials  of  consent.  The  consent  of  the  parties 
to  a  contract  must  be : 

1.  Free; 

2.  Mutual ;  and, 

3.  Communicated  by  each  to  the  other. 

Consent,  when  not  free,  and.  effect:  Post,  §§  1566,  1567. 
Consent,  when  not  mutual:  See  post,  §  1580. 
Consent,  how  communicated:  See  post,  §§  1581  et  seq. 
Legislation  §  1565.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  750. 

§  1566.  Consent,  when  voidable.  A  consent  which  is  not 
free  is  nevertheless  not  absolutely  void,  but  may  be  rescinded 
by  the  parties,  in  the  manner  prescribed  by  the  chapter  on 
rescission. 

Rescission  of  contracts:  See  post,  §§  1688  et  seq.,  3406  et  seq. 
Legislation  §  1566.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  riv.  Code,  §  751. 

§  1567,  Apparent  consent,  when  not  free.  An  apparent 
consent  is  not  real  or  free  when  obtained  through : 

1.  Duress ; 

2.  Menace ; 
[\.  Fraud; 


521  CONSENT.  §  1572 

4.  Undue  influence ;  or, 

5.  Mistake. 

Duress,  defined:  Post,  §  1569. 
Menace,  defined:  Post,  §  1570. 
Fraud,  defined:  Post,  §  1571. 
Undue  influence,  defined:  Post,  §  1575. 
Mistake,  defined:  Post,  §§  1576,  1577. 

Rescission,    where    consent    obtained   by    mistake,    duress,    menacet, 
fraud,  or  undue  influence:   See  post,  §  1689. 

Legislation  §  1567.     Enacted  March  21;  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  752. 

§  1568.     When  deemed  to  have  been  obtained  by  fraud,  etc. 

Consent  is  deemed  to  have  heen  obtained  through  one  of  the 
causes  mentioned  in  the  last  section  only  when  it  would  not 
have  been  given  had  such  cause  not  existed. 

Legislation  §  1568.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  753. 

<5  1569.     Duress,  what.     Duress  consists  in  : 

1.  ITnlawful  confinement  of  the  person  of  the  party,  or  of 
the  husband  or  wife  of  such  party,  or  of  an  ancestor,  descend- 
ant, or  adopted  child  of  such  party,  husband,  or  wife ; 

2.  Unlawful  detention  of  the  property  of  any  such  person ; 
or, 

3.  Confinement  of  such  person,  lawful  in  form,  but  fraudu- 
lently obtained,  or  fraudulently  made  unjustly  harassing  or 
oppressive. 

Legislation  §  1569.     E'nacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  754. 

§  1570.     Menace,  what.     Menace  consists  in  a  threa,t : 

1.  Of  such  duress  as  is  specified  in  subdivisions  one  and  three 
of  the  last  section ; 

2.  Of  unlawful  and  violent  injury  to  the  person  or  property 
of  any  such  person  as  is  specified  in  the  last  section;  or, 

3.  Of  injury  to  the  character  of  any  such  person. 
Legislation  §  1570.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  755. 

§  1571.  Fraud,  actual  or  constructive.  Fraud  is  either 
actual  or  coiistructive. 

Legislation  §  1571.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  756. 

§  1572.  Actual  fraud,  what.  Aetual  fraud,  within  the  mean- 
ing of  this  chapter,  consists  in  any  of  the  folloAving  acts,  com- 
mitted by  a  party  to  the  contract,  or  with  his  connivance,  Avith 
intent  to  deceive  another  party  thereto,  or  to  induce  him  to 
enter  into  the  contract : 


§  1576  CIVIL  CODE.  522 

1.  The  suggestion,  as  ^  fact,  of  that  which  is  not  true,  by  one 
who  does  not  believe  it  to  be  true ; 

2.  The  positive  assertion,  in  a  manner  not  warranted  by  the 
information  of  the  person  making  it,  of  that  which  is  not  true, 
though  he  believes  it  to  be  true ; 

3.  The  suppression  of  that  which  is  true,  by  one  having 
knowledge  or  belief  of  the  fact ; 

4.  A  promise  made  without  any  intention  of  performing  it; 
or, 

5.  Any  other  act  fitted  to  deceive. 

Fraudulent  conveyance  a  misdemeanor:  Pen.   Code,  §  531. 
Fraudulent  instruments  and  transfers:   See  post,  §§  3439  et  seq. 
Rescission  of  contracts  for  fraud:   See  post,  §  1689. 
Deceit:   See  post,  §§  1709,  1710. 

Legislation  §  1572.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  757. 

§  1573.     Constructive  fraud.     Constructive  fraud  consists : 

1.  In  any  breach  of  duty  which,  Avithout  an  actually  fraudu- 
lent intent,  gains  an  advantage  to  the  person  in  fault,  or  any 
one  claiming  under  him,  by  misleading  another  to  his  prejudice, 
or  to  the  prejudice  of  any  one  claiming  under  him ;  or, 

2.  In  any  such  act  or  omission  as  the  law  specially  declares 
to  be  fraudulent,  without  respect  to  actual  fraud. 

Legislation  §  1573.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code-,  §  758. 

§  1574.  Actual  fraud  a  question  of  fact.  Actual  fraud  is 
ahvays  a  question  of  fact. 

Fraud  a  question  of  fact:   See  post,  §  3442. 

Legislation  §  1574.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  759. 

§  1575.     Undue  influence,  what.     Undue  influence  consists : 

1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed  by 
another,  or  who  holds  a  real  or  apjDarent  authority  over  him, 
of  such  confidence  or  authority  for  the  purpose  of  obtaining 
an  unfair  advantage  over  him ; 

2.  In  taking  an  unfair  advantage  of  another's  weakness  of 
mind;  or, 

3.  In  taking  a  grossly  oppressive  and  unfair  advantage  of 
another's  necessities  or  distress. 

Undue  influence  vitiating  will:   See  ante,  §  1272. 
Rescission  of  contracts:  See  post,  §§  1689,  3406. 

Legislation  §  1575.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  760. 

§  1576.  Mistake,  what.  Mistake  may  be  either  of  fact  or 
law. 


523  CONSENT.  §  1582 

Legislation  §  1576.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  761. 

§  1577.  Mistake  of  fact.  Mistake  of  fact  is  a  mistake,  not 
caused  by  the  neglect  of  a  legal  duty  on  the  part  of  the  person 
making  the  mistake,  and  consisting  in : 

1.  An  unconscious  ignorance  or  forgetfulness  of  a  fact  past 
or  present,  material  to  the  contract ;  or, 

2.  Belief  in  the  present  existence  of  a  thing  material  to  the 
contract,  which  does  not  exist,  or  in  the  past  existence  of  such 
a  thing,  which  has  not  existed. 

Legislation  §  1577.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  762. 

§  1578.  Mistake  of  law.  Mistake  of  law  constitutes  a  mis- 
take, Avithin  the  meaning  of  this  article,  only  when  it  arises 
from : 

1.  A  misapprehension  of  the  law  by  all  parties,  all  supposing 
that  they  knew  and  understood  it,  and  all  making  substantially 
the  same  mistake  as  to  the  law ;  or, 

2.  A  misapprehension  of  the  law  by  one  party,  of  which  the 
others  are  aware  at  the  time  of  contracting,  but  Avhich  they  do 
not  rectify. 

Legislation  §  1578.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  763. 

§  1579.     Mistake  of  foreig'n  laws.     Mistake  of  foreign  laws 

is  a  mistake  of  fact. 

Foreign  laws,  how  proved:   See  Code  Civ.  Proc,  §§  1900,  1901. 
Legislation  §  1579.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  764. 

§  1580.     Mutuality  of  consent.    Consent  is  not  mutual,  unless 

the  parties  all  agree  upon  the  same  thing  in  the  same  sense. 

But  in  certain  cases  defined  by  the  chapter  on  interpretation, 

they  are  to  be  deemed  so  to  agree  without  regard  to  the,  fact. 

Interpretation  of  contracts:  See  post,  §§  1635  et  seq. 

Legislation  §  1580.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  765. 

§  1581.  Comnmnication  of  consent.  Consent  can  be  com- 
municated Avith  effect,  only  by  some  act  or  omission  of  the 
party  contracting,  by  which  he  intends  to  communicate  it,  or 
which  necessarily  tends  to  such  communication. 

Legislation  §  1581.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  766. 

§  1582.    Mode  of  communicating-  acceptance  of  proposal.     If 

a  proposal  prescri1)es  any  conditions  concerning  the  communi- 
cation of  its  acceptance,  the  proposer  is  not  bound  unless  they 


§  1587  CIVIL  CODE.  524 

are  conformed  to;  but  in  other  cases  any  reasonable  and  usual 

mode  may  be  adopted. 

Legislation  §  1582.     Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  767. 

§  1583.  When  comnmnication  deemed  complete.  Consent  is 
deemed  to  he  fully  communicated  bet-ween  the  parties  as  soon 
as  the  party  accepting  a  proposal  has  put  his  acceptance  in  the 
course  of  transmission  to  the  proposer,  in  conformity  to  the 
last  section. 

Legislation  §  1583.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  768. 

§  1584.  Acceptance  by  performance  of  conditions.  Perform- 
ance of  the  conditions  of  a  proposal,  or  the  acceptance  of  the 
consideration  offered  with  a  proposal,  is  an  acceptance  of  the 
proposal. 

Legislation  §  1584.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  769. 

§  1585.  Acceptance  must  be  absolute.  An  acceptance  must 
be  absolute  and  unqualified,  or  must  include  in  itself  an  ac- 
ceptance of  that  character  Avhieh  the  proposer  can  separate 
from  the  rest,  and  which  will  conclude  the  person  accepting. 
A  qualified  acceptance  is  a  new  proposal. 

Legislation  §  1585.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  770. 

§  1586.  Revocation  of  proposal.  A  proposal  may  be  re- 
voked at  any  time  before  its  acceptance  is  communicated  to  the 
proposer,  but  not  afterwards. 

Legislation  §  1586.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.   Code,  §  771. 

§  1587.     Revocation,  how  made.     A  proposal  is  revoked : 

1.  By  the  communication  of  notice  of  revocation  by  the  pro- 
poser to  the  other  party,  in  the  manner  prescribed  by  sections 
fifteen  hundred  and  eighty-one  and  fifteen  hundred  and  eighty- 
three,  before  his  acceptance  has  been  communicated  to  the 
former ; 

2.  By  the  lapse  of  the  time  prescribed  in  such  proposal  for 
its  acceptance,  or  if  no  time  is  so  prescribed,  the  lapse  of  a 
reasonable  time  without  communication  of  the  acceptance ; 

3.  By  the  failure  of  the  acceptor  to  fulfill  a  condition  prece- 
dent to  acceptance ;  or, 

4.  By  the  death  or  insanity  of  the  proposer. 

Legislation  §  1587.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  772. 


525  OBJECT  OF  CONTRACTS.  §  1598 

§  1588.     Ratification  of  contract  void  for  want  of  consent. 

A  contract  which  is  voidable  solely  for  Avant  of  due  consent, 
may  be  ratified  by  a  subsequent  consent. 

Legislation  §  1588.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  773. 

§  1589.     Assumption  of  obligation  by  acceptance  of  benefits. 

A  voluntary  acceptance  of  the  benefit  of  a  transaction  is  equi- 
valent to  a  consent  to  all  the  obligations  arising  from  it,  so  far 
as  the  facts  are  known,  or  ought  to  be  known,  to  the  person 
accepting. 

He  who  takes  benefit  must  bear  burden:  See  post,  §  3521. 
Legislation  §  1589.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  774;  Bennett  v.  Judson,  21  N.  Y.  23S. 

CHAPTER  IV. 

•Object  of  a  Contract. 

•      §  1595.  Object,  what. 

§  1596.  Eequisites  of  object. 

§  1597.  Impossibility,  what. 

§  1598.  When  contract  wholly  void. 

§  1599.  When  contract  partially  void. 

§  1595.  Object,  what.  The  object  of  a  contract  is  the  thing 
which  it  is  agreed,  on  the  part  of  the  party  receiving  the  con- 
sideration, to  do  or  not  to  do. 

Unlawful  contracts:  See  post,  §  1596,  and  §§  1667  et  seq. 
Unlawful  conditions:  See  ante,  §  1441. 

Legislation  §  1595.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  775;  Martin  v.  McCormick,  8  N.  Y.  335. 

§  1596.     Requisites  of  object.     The  object  of  a  contract  must 
be  lawful  when  the  contract  is  made,  and  possible  and  ascer- 
tainable by  the  time  the  contract  is  to  be  performed. 
Unlawful  contracts:   See  post,  §§  1667  et  seq. 

Legislation  §  1596.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  776. 

§  1597.  Impossibility,  what.  Everything  is  deemed  possible 
except  that  which  is  impossible  in  the  nature  of  things. 

Legislation  §  1597.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code',  §  777. 

§  1598.  When  contract  wholly  void.  Where  a  contract  has 
but  a  single  object,  and  such  ol)ject  is  unlawful,  whether  m 
whole  or  in  part,  or  wholly  impossible  of  performance,  or  so 
vaguely  expressed  as  to  be  wholly  unascertainable,  the  entire 
contract  is  void. 
'^   Consideration  illegal  in  part:  See  post,  §§  1599,  1608. 


§  1607  CIVIL  CODE.  526 

Legislation  §  1598.     Enacted  March  2],  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  778. 

§  1599.  When  contract  partially  void.  Where  a  contract 
has  several  distinct  objects,  of  which  one  at  least  is  lawful,  and 
one  at  least  is  unlawful,  in  whole  or  in  part,  the  contract  is 
void  as  to  the  latter  and  valid  as  to  the  rest. 

Contract  illegal  in  part:  See  ante,  §  1598;  post,  §  1608. 
Legislation  §  1599.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  779. 

CHAPTER  V. 

Consideration. 

§  1605.  Good   consideration,  what. 

§  1606.  How  far  legal  or  moral  obligation  is  a  good  consideration. 

§  1607.  Consideration  lawful. 

§  1608.  Effect  of  its  illegality. 

§  1609.  Consideration   executed  ox   executory. 

§  1610.  Executory  consideration. 

§  1611.  How  ascertained. 

§  1612.  Effect   of   impossibility   of   ascertaining  consideration. 

§  1613.  Same. 

§  1614.  Written  instrument  presumptive  evidence  of  consideration. 

§  1615.  Burden   of   proof   to   invalidate   sufficient   consideration. 

§  1605.  Good  consideration,  w^hat.  Any  benefit  conferred, 
or  agreed  to  be  conferred,  upon  the  promisor,  by  any  other  per- 
son, to  which  the  promisor  is  not  lawfully  entitled,  or  any 
prejudice  suffered,  or  agreed  to  be  suffered,  by  such  person, 
other  than  such  as  he  is  at  the  time  of  consent  lawfully  bound 
to  suffer,  as  an  inducement  to  the  promisor,  is  a  good  considera- 
tion for  a  promise. 

Legislation  §  1605.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  780. 

§  1606.  How^  far  legal  or  moral  obligation  is  a  good  con- 
sideration. An  existing  legal  obligation  resting  upon  the 
promisor,  or  a  moral  obligation  originating  in  some  benefit 
conferred  upon  the  promisor,  or  prejudice  suffered  by  the 
promisee,  is  also  a  good  consideraion  for  a  promise,  to  an  ex- 
tent corresponding  with  the  extent  of  the  obligation,  but  no 
further  or  otherwise. 

Legislation  §  1606.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  781. 

§  1607.  Consideration  law^ful.  The  consideration  of  a  con- 
tract must  be  lawful  within  the  meaning  of  section  sixteen 
hundred  and  sixty-seven. 

Unlawful  contracts:   See  post,  §§  1667  et  seq. 

Legislation  §  1607.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  782. 


527  CONSIDERATION  OF  CONTRACTS.    •  §  1614 

§  1608.     Effect  of  its  illegality.     If  any  part  of  a  single  con- 
sideration for  one  or  more  objects,  or  of  several  considerations 
for  a  single  object,  is  unlawful,  the  entire  contract  is  void. 
Consideration  illegal  in  part:  See  ante,  §§  1598,  1599. 
Legislation  §  1608.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  7S3. 

§  1609.  Consideration  executed  or  executory.  A  considera- 
tion may  be  executed  or  executory,  in  whole  or  in  part.  In  so 
far  as  it  is  executory  it  is  subject  to  the  provisions  of  chapter 
four  of  this  title. 

Legislation  §  1609.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  784. 

§  1610.  Executory  consideration.  When  a  consideration  is 
executory,  it  is  not  indispensable  that  the  contract  should 
specify  its  amount  or  the  means  of  ascertaining  it.  It  may  be 
left  to  the  decision  of  a  third  person,  or  regulated  by  any 
specified  standard. 

Legislation  §  1610.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  785. 

§  1611.  How  ascertained.  When  a  contract  does  not  deter- 
mine the  amount  of  the  consideration,  nor  the  me'thod  by  which 
it  is  to  be  ascertained,  or  when  it  leaves  the  aniQunt  thereof 
to  the  discretion  of  an  interested  party,  the  consideration  must 
be  so  much  money  as  the  object  of  the  contract  is  reasonably 
worth. 

Legislation  §  1611.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §.786. 

§  1612.     Effect  of  impossibility  of  ascertaining-  consideration. 

Where  a  contract  provides  an  exclusive  method  by  which  its 
consideration  is  to  be  ascertained,  which  method  is  on  its  face 
impossible  of  execution,  the  entire  contract  is  void. 

Legislation  §  1612.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  787. 

§  1613.  Same.  Where  a  contract  provides  an  exclusive 
method  by  which  its  consideration  is  to  be  ascertained,  which 
method  appears  possible  on  its  face,  but  in  fact  is,  or  becomes, 
impossible  of  execution,  such  provision  only  is  void. 

Legislation  §  1613.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  788. 

§  1614.  Written  instrument  presumptive  evidence  of  con- 
sideration. A  written  instrument  is  presumptive  evidence  of 
a  consideration. 

Distinction    between    sealed    and    unsealed    instruments    abollslied: 

See  post,  §  1629. 

Legislation  §  1614.     Enacted  March  21,  1872. 


§  1623  CIVIL  CODE.  528 

§  161.5.  Burden  of  proof  to  invalidate  sufficient  considera- 
tion. The  burden  of  showing  a  want  of  consideration  sufficient 
to  support  an  instrument  lies  with  the  party  seeking  to  in- 
validate or  avoid  it. 

Recital  of  consideration  in  contract,  effect  of:  See  Code  Civ.  Proc, 
§  1963,   subd.   39. 

Legislation  §  1615.     Enacted  March  21,  1872. 


TITLE  II. 
Manner  of  Creating'  Contracts. 

§   1619.  Contracts,  express  or  implied. 

§   1620.  Express  contract,  what. 

§   1621.  Implied  contract,  what. 

§   1622.  What   contracts   may  be   oral. 

§  1623.  Contract  not  in  writing  through  fraud,  may  be  enforced  against 

fraudulent  party. 

§  1624.  What  contracts  must  be  written. 

§  1625.  Effect  of  written  contracts. 

§   1626.  Contract  in  writing,  takes  effect  when. 

§   1627.  Provisions  of  chapter  on  transfers  of  real  property. 

§   1628.  Corporate  seal,  how  affixed. 

§  1629.  Provisions  abolishing  seals  made  applicable. 

§  1619.  Contracts,  express  or  implied.  A  contract  is  either 
express  or  implied. 

Legislation  §  1619.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  789. 

§  1620.  Express  contract,  what.  An  express  contract  is 
^e,  the  terms  of  which  are  stated  in  words. 

Legislation  §  1620.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  790. 

§  1621.     Implied  contract,  what.    An  implied  contract  is  one, 
the  existence  and  terms  of  which  are  manifested  by  conduct. 
Obligations  imposed  by  law:  See  post,  §§  1708  et  seq. 
Legislation  §  1621.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  791. 

§  1622.  What  contracts  may  be  oral.  All  contracts  may  be 
oral,  except  such  as  are  specially  required  by  statute  to  be  in 
writing. 

Contracts,  when  to  be  in  writing:  See  post,  §§  1623,  162-1,  1739;  Code 
Civ.  Proc,  §§  1971-1974. 

Legislation  §  1622.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  792. 

§  1623.  Contract  not  in  writing  through  fraud,  may  be  en- 
forced against  fraudulent  party.     Where  a  contract,  which  is 


529  MANNER  OF  CREATING  CONTRACTS.  §  1624 

required  by  la^v  to  be  in  writing,  is  prevented  from  being  put 
into  writing  by  the  fraud  of  a  party  thereto,  any  other  party 
who  is  by  such  fraud  led  to  believe  that  it  is  in  writing,  and 
acts  upon  such  belief  to  his  prejudice,  may  enforce  it  against 
the  fraudulent  party. 

Statute  of  frauds:  See  Code  Civ.  Proc,  §§  1971-1974. 

Legislation  §  1623.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  793. 

§  1624.  What  contracts  must  be  written.  The  following 
contracts  are  invalid,  unless  the  same,  or  some  note  or  mem- 
orandum thereof,  is  in  writing  and  subscribed  by  the  party 
to  be  charged,  or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed 
within  a  year  from  the  making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another,  except  in  the  cases  provided  for  in  section 
twenty-seven  hundred  and  ninety-four ; 

3.  An  agreement  made  upon  consideration  of  marriage 
other  than  a  mutual  promise  to  marry ; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things  in 
action,  at  a  price  not  less  than  two  hundred  dollars,  unless 
the  buyer  accepts  or  receives  part  of  such  goods  and  chattels 
or  the  evidences,  or  some  of  them,  of  such  things  in  action,  or 
pays  at  the  time  some  part  of  the  purchase-money ;  but  when 
a  sale  is  made  at  auction,  an  entry  by  the  auctioneer  in  his 
sale-book,  at  the  time  of  the  sale,  of  the  kind  of  property  sold, 
the  terms  of  the  sale,  the  price,  and  the  names  of  the  pur- 
chaser and  person  on  whose  account  the  sale  is  made,  is  a 
sufficient  memorandum ; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  real  property,  or  of  an  interest 
therein ;  and  such  agreement,  if  made  by  an  agent  of  the  party 
sought  to  be  charged,  is  invalid,  unless  the  authority  of  the 
agent  is  in  writing,  subscribed  by  the  party  sought  to  be 
charged ; 

6.  An  agreement  authorizing  or  employing  an  agent  or 
broker  to  purchase  or  sell  real  estate  for  compensation  or  a 
commission ; 

7.  An  agreement  which  by  its  terms  is  not  to  be  performed 
during  the  lifetime  of  the  promisor,  or  an  agreement  to  devise 
or  bequeath  any  property,  or  to  make  any  provision  for 
any  person  by  will.  [Amendment  approved  1905 ;  Stats.  1905, 
p.  611.] 

statute  of  frauds:    See  Code  Civ.  Proc,  §§  1971-1974. 
Memorandum  by  auctioneer:   See  post,  §  1798. 
Sale  of  realty:  See  ante,  §  1091;  post,  §  1741. 
Oiv.  Code — 34 


§  1626  CIVIL  CODE.  530 

Fraudulent  transfers:  See  post,  §  3440. 

Sales  of  personalty:  See  post,  §§1739  et  seq. 

Guaranty:  See  post,  §§  2793  et  seq. 

Part  performance  taking  case  out  of  statute:   See  post,  §  1741. 

Oral  authorization,  sufficiency  of:   See  post,  |  2309. 

Legislation  §  1624.  1.  Enacted  March  21,  1872,  and  then  read:  "The 
folio-wing  contracts,  or  some  memorandum  thereof,  expressing  the  par- 
ties, their  consent,  and  the  object  of  the  contract,  must  be  in  writing, 
subscribed  by  the  party  to  be  charged  thereby,  or  by  his  agent  for  the 
purpose:  1.  An  agreement  that  by  its  terms  cannot  be  fully  performed 
within  one  year;  2.  An  agreement  made  upon  consideration  of  mar- 
riage, other  than  mutual  promises  to  marry." 

2.  Amended  by  Code  Amdts.  1873-74,  p'.  241,  and  differed  from  the 
amendment  of  1905  (the  present  section),  in  having  (1)  in  introductory 
paragraph  "be"  instead  of  "is"  before  "in  writing";  (2)  the  section 
subdivisions  designated  by  cardinal  numbers  instead  of  Arabic  nu- 
merals; (3)  at  end  of  subd.  2,  the  words  "of  this  code";  (4)  in  subd  4, 
(a)  "accept  or  receive"  instead  of  "accepts  or  receives,"  (b)  "pay"  in- 
stead of  "pays,"  (c)  "by  auction"  instead  of  "at  auction,"  and  (d), 
"terms  of  sale"  instead  of  "terms  of  the  sale";  (5)  in  subd.  5,  "be" 
instead  of  "is"  before  "in  writing,"  the  section  then  ending  with  this 
subdivision,  subd.  6  being  added  in  1877-78. 

3.  Amended  by  Code  Amdts.  1877-78,  p  86,  (1)  changing  the  cardi- 
nal numbers  of  the  subdivisions  to  ordinals,  and  (2)  adding  subd.  6, 
which  read  as  at  present. 

4.  Amendment  by  Stats.  1901,  p.  408;  unconstitutional.  See  note, 
§  4,  ante. 

5.  Amended  by  Stats.  1905,  p.  611,  adding  subd.  7;  the  code  commis- 
sioner saying,  "The  change  consists  in  the  addition  of  subd.  7.  The 
cases  in  which  it  sought  to  establish  by  parol  evidence  alleged  agree- 
ments to  provide  for  a  person  by  will  are  becoming  so  numerous  as  to 
warrant  the  assumption  that  the  reasons  inducing  the  original  enact- 
ment of  the  statute  of  frauds  apply  with  especial  force  to  agreements 
of  this  class  and  that  they  ought  to  be  brought  within  that  statute." 

§  1625.  Effect  of  written  contracts.  The  execution  of  a 
contract  in  -writing,  whether  the  law  requires  it  to  be  written 
or  not,  supersedes  all  the  negotiations  or  stipulations  concern- 
ing its  matter  which  preceded  or  accompanied  the  execution 
of  the  instrument.  [Amendment  approved  1905;  Stats.  1905, 
p.  611.] 

Writing  supersedes  oral  stipulations:  See  post,  §  1639. 

Legislation  §  1625.     1.  Enacted    March    21,    1872    (based   on   Field's 

Draft,  N.  Y.  Civ.  Code,   §  795),  and  then  had  the  word  "oral"  before 

"negotiations." 

2.  Amendment  by  Stats.  1901,  p.  408;  unconstitutional.  See  note,  §  4. 
ante. 

3.  Amended  by  Stats.  1905,  p.  611. 

§  1626.  Contract  in  writing',  takes  effect  when.  A  contract 
in  writing  takes  effect  upon  its  delivery  to  the  party  in  whose 
favor  it  is  made,  or  to  his  agent. 

Delivery  of  transfers  in  -writing:  See,  generally,  ante,  §  1054. 
Legislation  §  1626.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  796. 


531  INTERPRETATION  OF  CONTRACTS.  §  1629 

§  1627.     Provisions  of  chapter  on  transfers  of  real  property. 

The  provisions  of  the  chapter  on  transfers  in  general,  concern- 
ing the  delivery  of  grants,  absolute  and  conditional,  apply  to 
all  written  contracts. 

Mode  of  transfer:  See  ante,  §§  1052  et  seq. 

Legislation  §  1627.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  797. 

§  1628.  Corporate  seal,  how  affixed.  A  corporate  or  official 
seal  may  be  affixed  to  an  instrument  by  a  mere  impression  upon 
the  paper  or  other  material  on  which  such  instrument  is  writ- 
ten. 

Seal:  See  Code  Civ.  Proc,  §  14;  Pol.  Code,  ^14. 

Legislation  §  1628.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  798. 

§  1629.     Provisions  abolishing-  seals  made  applicable.     All 

distinctions  between  sealed  and  unsealed  instruments  are 
abolished. 

Legislation  §  1629.     Enacted  March  21,  1872. 


TITLE  III. 
Interpretation  of  Contracts. 

§   1635.  Uniformity  of  interpretation. 

§  1636.  Contracts,  how  to  be  interpreted. 

§   1637.  Intention    of    parties,    how    ascertained. 

§   1638.  Intention   to   be   ascertained  from   language. 

§   1639.  Interpretation   of  written   contracts. 

§   1640.  Writing,   when   disregarded. 

§  1641.  Effect   to   be   given  to   every   part   of   contract. 

§   1642.  Several    contracts,    when    taken    together. 

§   1643.  Interpretation  in  favor  of  contract. 

§  1644.  Words  to  be  understood  in  usual  sense. 

§   1645.  Technical  words. 

§  1646.  Law  of  place. 

§   1G47.  Contracts   explained   by   circumstances. 

§  1648.  Contract  restricted  to   its   evident   object. 

i  1649.  Interpretation  in  sense  in  which  promisor  believed  promisee  to 

rely. 

§  1650.  Particular  clauses  subordinate  to  general  intent. 

§   1651.  Contract,  partly  written   and   partly   printed. 

§  1652.  Kepugnancies,  how  reconciled. 

§  1653.  Inconsistent  words  rejected. 

§  1654.  Words  to  be  taken  most  strongly  against  whom. 

§  1655.  Reasonable  stipulations,  when  implied. 

§   1656.  Necessary  incidents  implied. 

§   1657.  Time  of  performance  of   contract. 

§  1658.  Time,  when   of   essence.     [Repealed.] 

§  1659.  When   joint   and   several. 

§  1660.  Same. 

§  1661.  Executed  and  executory   contracts,  what. 


§  1641  crviL  CODE.  532 

§  1635.  Uniformity  of  interpretation.  All  contracts,  whether 
public  or  private,  are  to  be  interpreted  by  the  same  rules,  ex- 
cept as  otherwise  provided  by  this  code. 

Legislation  §  1635.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  800. 

§  1636.  Contracts,  how  to  be  interpreted.  A  contract  must 
be  so  interpreted  as  to  give  effect  to  the  mutual  intention  of 
the  parties  as  it  existed  at  the  time  of  contracting,  so  far  as 
the  same  is  ascertainable  and  lawful. 

Parol  evidence  to  prove  intention:  See  Code  Civ.  Proc,  §§  1855 
et  seq. 

Legislation  §  1636.  .Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  801. 

§  1637.  Intention  of  parties,  how  ascertained.  For  the  pur- 
pose of  ascertaining  the  intention  of  the  parties  to  a  contract, 
if  otherwise  doubtful,  the  rules  given  in  this  chapter  are  to  be 
applied. 

Parol  evidence  with  respect  to  writings:  See  Code  Civ.  Proc,  §§ 
ISoo,  1856  et  seq. 

Legislation  §  1637.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  S02. 

§  1638.  Intention  to  be  ascertained  from  language.  The 
language  of  a  contract  is  to  govern  its  interpretation,  if  the 
language  is  clear  and  explicit,  and  does  not  involve  an 
absurdity. 

Legislation  §  1638.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  Su3. 

§  1639.  Interpretation  of  written  contracts.  When  a  con- 
tract is  reduced  to  writing,  the  intention  of  the  parties  is  to 
be  ascertained  from  the  writing  alone,  if  possible;  subject, 
however,  to  the  other  provisions  of  this  title. 

Parol  evidence  in  construing  writings:  See  Code  Civ.  Proc,  §§  1855 
et  seq. 

Legislation!  1639.  Enacted  March  21,  1872,;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  804. 

§  1640.  Writing,  when  disregarded.  When,  through  fraud, 
mistake,  or  accident,  a  written  contract  fails  to  express  the  real 
intention  of  the  parties,  such  intention  is  to  be  regarded,  and 
the  erroneous  parts  of  the  writing  disregarded. 

Evidence  of  circumstances:  See  Code  Civ.  Proc,  §  1856. 
Legislation  §  1640.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  805. 

§  1641.     Effect  to  be  given  to  every  part  of  contract.     The 

whole  of  a  contract  is  to  be  taken  together,  so  as  to  give  effect 


I 


533  INTEEPRETATION  OF  CONTRACTS.  §  1647 

to  every  part,  if  reasonably  practicable,  each  clause  helping 

to  interpret  the  other. 

Legislation  §  1641.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  80G. 

§  1642.  Several  contracts,  when  taken  together.  Several 
contracts  relating  to  the  same  iiiattri's,  l)et\voeii  the  same  par- 
ties, and  made  as  parts  of  substantially  one  transaction,  are  to 
be  taken  together. 

Legislation  §  1642.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  807. 

§  1643.     Interpretation   in   favor   of  contract.     A   contract 
must  receive  such  an  interpretation  as  will  make  it  lawful,  opera- 
tive, definite,  reasonable,  and  capable  of  being  carried  into  effect, 
if  it  can  be  done  without  violating  the  intention  of  the  parties. 
Legislation  §  1643.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  SOS. 

§  1644.  Words  to  be  understood  in  usual  sense.  The  words 
of  a  contract  are  to  be  understood  in  their  ordinary  and  popu- 
lar sense,  rather  than  according  to  their  strict  legal  meaning; 
unless  used  by  the  parties  in  a  technical  sense,  or  unless  a 
special  meaning  is  given  to  them  by  usage,  in  Avhich  case  the 
latter  must  be  followed. 

Legislation  §  1644.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Co'de,  §  809. 

§  1645.  Technical  words.  Technical  words  are  to  be  in- 
terpreted as  usually  understood  by  persons  in  the  profession 
or  i)usiness  to  which  they  relate,  unless  clearly  used  in  a  differ- 
ent sense. 

Technical  words,  how  construed:  See  ante,  §§  13,  1327. 
Legislation  §  1645.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  810. 

§  1646.     Law  of  place.     A  contract  is  to  be  interpreted  ac- 
cording to  the  law  and  usage  of  the  place  where  it  is  to  be 
performed ;  or,  if  it  does  not  indicate  a  place  of  performance, 
according  to  the  law  and  usage  of  the  place  Avhere  it  is  made. 
Usage:   See  Code  Civ.  Proc,  §  1870,  subd.  12. 

Legislation  §  1646.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  811. 

§  1647.  Contracts  explained  by  circumstances.  A  contract 
may  be  explained  l)y  reference  to  the  circumstances  under 
which  it  was  made,  and  the  mattei"  to  which  it  relates. 

Legislation  §  1647.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §812. 


§  1653  CIVIL  CODE,  534 

§  1648.  Contract  restricted  to  its  evident  object.  However 
broad  may  be  the  terms  of  a  contract,  it  extends  only  to  those 
things  concerning  which  it  appears  that  the  parties  intended 
to  contract. 

Legislation  §  1648.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  813.  ' 

§  1649.  Interpretation  in  sense  in  which  promisor  believed 
promisee  to  rely.  If  the  terms  of  a  promise  are  in  any  respect 
ambiguous  or  uncertain,  it  must  be  interpreted  in  the  sense  in 
which  the  promisor  believed,  at  the  time  of  making  it,  that  the 
promisee  understood  it. 

Which  construction  preferred:  Code  Civ.  Proc,  §  1864. 
Interpretation  against  promisor:  See  post,  §  1654. 

Legislation  §  1649.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  814. 

§  1650.     Particular  clauses   subordinate  to  general  intent. 

Particular  clauses  of  a  contract  are  subordinate  to  its  general 
intent. 

Repugnancies  and  inconsistencies:  See  infra,  §§  1652,  1653. 

Legislation  §  1650.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  815. 

§  1651.  Contract,  partly  written  and  partly  printed.  Where 
a  contract  is  partly  Avritten  and  partly  printed,  or  where  part 
of  it  is  written  or  printed  under  the  special  directions  of  the 
parties,  and  with  a  special  view  to  their  intention,  and  the 
remainder  is  copied  from  a  form  originally  prepared  without 
special  reference  to  the  particular  parties  and  the  particular 
contract  in  question,  the  written  parts  control  the  printed 
parts,  and  the  parts  w^hich  are  purely  original  control  those 
which  are  copied  from  a  form.  And  if  the  two  are  absolutely 
repugnant,  the  latter  must  be  so  far  disregarded. 

Legislation  §  1651.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  816. 

§  1652.  Repugnancies,  how  reconciled.  Repugnancy  in  a 
contract  must  be  reconciled,  if  possible,  by  such  an  interpreta- 
tion as  wnll  give  some  effect  to  the  repugnant  clauses,  sub- 
ordinate to  the  general  intent  and  purpose  of  the  whole  con- 
tract. 

Legislation  §  1652.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  817. 

§  1653.  Inconsistent  words  rejected.  AVords  in  a  contract 
which  are  wholly  inconsistent  with  its  nature,  ot  with  the  main 
intention  of  the  parties,  are  to  be  rejected. 

Legislation  §  1653.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  818. 


535  INTERPRETATION  OP  CONTRACTS.  §  1659 

§  1654.     Words  to  be  taken  most  strongly  ag-ainst  whom.     In 

cases  of  uncertainty  not  removed  by  the  preceding  rules,  the 
language  of  a  contract  should  be  interpreted  most  strongly 
against  the  party  who  caused  the  uncertainty  to  exist.  The 
promisor  is  presumed  to  be  such  party;  except  in  a  contract 
between  a  public  officer  or  body,  as  such,  and  a  private  party, 
in  which  it  is  presumed  that  all  uncertainty  was  caused  by  the 
private  party. 

Interpretation  against  promisor:  See  ante,  §  1649. 
Interpretation  of  doubtful  words:  See  ante,  §  1068. 

Legislation  §  1654.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  819. 

§  1655.  Reasonable  stipulations,  v/hen  implied.  Stipula- 
tions which  are  necessary  to  make  a  contract  reasonable,  or 
conformable  to  usage,  are  implied,  in  respect  to  matters  con- 
cerning Avhich  the  contract  manifests  no  contrary  intention. 

Legislation  §  1655.     Enacted  March  21,  1872;  based  ou  Field's  Draft, 
N.  Y.  Civ.  Code,  §  820. 

§  1656.  Necessary  incidents  implied.  All  things  that  in  law 
or  usage  are  considered  as  incidental  to  a  contract,  or  as  neces- 
sary to  carry  it  into  effect,  are  implied  therefrom,  unless  some 
of  them  are  expressly  mentioned  therein,  when  all  other  things 
of  the  same  class  are  deemed  to  be  excluded. 

Legislation  §  1656.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  821. 

§  1657.  Time  of  performance  of  contract.  If  no  time  is 
specified  for  the  performance  of  an  act  required  to  be  per- 
formed, a  reasonable  time  is  allowed.  If  the  act  is  in  its  nature 
capable  of  being  done  instantly — as,  for  example,  if  it  consists 
in  the  payment  of  money  only — it  must  be  performed  imme- 
diately upon  the  thing  to  be  done  being  exactly  ascertained. 

Legislation  §  1657.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  822. 

§  1658.  Time,  when  of  essence.  [Repealed  1874 ;  Code 
Amdts.  187.3-74,  p.  242.] 

Legislation  §  1658.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  242. 

§  1659.  When  joint  and  several.  Where  all  the  parties  Avho 
unite  in  a  promise  receive  some  benefit  from  the  consideration, 
whether  past  or  present,  their  promise  is  presumed  to  be  joint 
and  several. 

Contracts.    Joint  and  several:  See  ante,  §§  1430  et  seq. 
Legislation  §  1659.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  824. 


§  1669  CIVIL  CODE.  536 

§  1660.  Same.  A  promise,  made  in  the  singular  number, 
but  executed  by  several  persons,  is  presumed  to  be  joint  and 
several. 

Legislation  §  1660.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  825. 

§  1661.  Executed  and  executory  contracts,  what.  An  exe- 
cuted contract  is  one,  the  object  of  which  is  fully  performed. 
All  others  are  executory. 

Legislation  §  1661.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ   Code,  §  826. 

TITLE  IV. 

Unlawful  Contracts. 

§   1667.  What  is  unlawful. 

§   1668.  Certain   contracts  unlawful. 

§   1669.  Penalties   void.     [Repealed.] 

§   1670.  Contract  fixing  damages,  void. 

§   1671.  Exception. 

§   1672.  Eestraints    upon    legal    proceedings.     [Repealed.] 

§   1673.  Contract  in  restraint  of  trade,  void. 

§   1674.  Exception  in  favor  of  sale  of  good-will. 

§  1675.  Exception    in   favor    of    partnership    arrangements. 

§   1676.  Contract  in  restraint  of  marriage,  void. 

§  1667.     What  is  unlawful.     That  is  not  lawful  which  is : 

1.  Contrary  to  an  express  provision  of  law ; 

2.  Contrary  to  the  policy  of  express  law,  though  not  ex- 
pressly prohibited ;  or, 

3.  Otherwise  contrary  to  good  morals. 

Act  to  prevent  combinations  to  obstruct  sale  of  live-stock:  See 
jiost,   Appendix,  tit.   "Animals." 

Contracts  in  restraint  of  trade:   See  post,  §§  1673,   1674. 

Contracts  in  restraint  of  marriage:   See  post,  §  1676. 

Conditions,  when  void:   See  ante,  §§  709,  710,  711. 

Legislation  §  1667.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  827. 

§  1668.  Certain  contracts  unlawful.  All  contracts  which 
have  for  their  object,  directly  or  indirectly,  to  exempt  any  one 
from  responsibility  for  his  OAvn  fraud,  or  willful  injury  to  the 
person  or  property  of  another,  or  violation  of  law,  Avhether 
willful  or  negligent,  are  against  the  policy  of  the  law. 

Carrier  cannot  exempt  himself  from  liability  for  negligent  or 
wrongful  acts:   See  post,  §  2175. 

Legislation  §  1668.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  828. 

§  1669.  Penalties  void.  [Repealed  1874 ;  Code  Amdts.  1873- 
74,  p.  242.] 

Legislation  §  1669.  1.  Enacted  March  21,  1872.  2.  Repealed  by 
Code  Amdts.  1873-74,  p.  242. 


I 


'537  UNLAWFUL  CONTRACTS.  §  1675 

§  1670.     Contract  fixing  damages,  void.     Every  conti-aet  by 

which  the  amount  of  damage  to  be  paid,  or  other  compensation 

to  be  made,  for  a  breach  of  an  obligation,  is  determined  in 

anticipation  thereof,  is  to  that  extent  void,  except  as  expressly 

provided  in  the  next  section. 

Legislation  §  1670.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  S30. 

§  1671.     Exception.     The  parties  to  a  contract  may  agree 

therein  upon  an  amount  which  shall  be  presumed  to  be  the 

amount  of  damage  sustained  hy  a  breach  thereof,  when,  from 

the  nature  of  the  case,  it  would  be  impracticable  or  extremely 

difficult  to  fix  the  actual  damage. 

Legislation  §  1671.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  831. 

§1672.    Restraints  upon  legal  proceedings.    [Repealed  1874; 

Code  Amdts.  1873-74,  p.  242.] 

Legislation  §  1672.  1.  Enacted  March  21,  1872.  2.  Eepealed  bv 
Code  Amdts.  1873-74,  p.  242. 

§  1673.  Contract  in  restraint  of  trade,  void.  Every  con- 
tract by  which  any  one  is  restrained  from  exercising  a  lawful 
profession,  trade,  or  business  of  any  kind,  otherwise  than  is 
provided  by  the  next  two  sections,  is  to  that  extent  void. 

Legislation  §  1673.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  833. 

§  1674.     Exception  in  favor  of  sale  of  good-will.     One  who 

sells  the  good-will  of  a  business  may  agree  with  the  buyer  to 
refrain  from  carrying  on  a  similar  business  within  a  specified 
county,  city,  or  a  part  thereof,  so  long  as  the  buyer,  or  any 
person  deriving  title  to  the  good-will  from  him,  carries  on  a 
like  business  therein. 

Good-will  of  business,  defined:  Ante,  §  992. 

Good-will  of  business  is  property:   Ante,  §  993. 

Sale  of  good- will,  implied  warranty  not  to  draw  away  customers: 
post,  §  1776. 

Partner  cannot  dispose  of  good-will:  See  post,  §  2430,  subd.  2. 

Legislation  §  1674.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  834. 

§  1675.     Exception  in  favor  of  partnership  arrangements. 

Partners  may,  upon  or  in  anticipation  of  a  dissolution  of  the 
partnership,  agree  that  none  of  them  will  carry  on  a  similar 
business  within  the  same  city  or  town  where  the  partnership 
business  has  been  transacted,  or  within  a  specified  part  thereof. 

Legislation  §  1675.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  835. 


§  1689  CIVIL  CODE.  538' 

§  1676.  Contract  in  restraint  of  marriage,  void.  Every  con- 
tract in  restraint  of  the  marriage  of  any  person,  other  than  a 
minor,  is  void. 

Conditions  in  restraint  of  marriage:  See  ante,  §  710. 
Legislation  §  1676.     Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  836. 


TITLE  V. 
Extinction  of  Contracts. 

Chapter  I.     Contracts,    how    Extinguished.     §  1682. 
II.     Eescission.     §§  1688-1691. 
III.     Alteration   and   Cancellation.     §§  1697-1701. 

CHAPTER  I. 

Contracts,  How  Extinguished. 

§   1682.     Contract,  how  extinguished. 

§  1682.  Contract,  how  extinguished.  A  contract  may  be 
extinguished  in  like  manner  with  any  other  obligation,  and 
also  in  the  manner  prescribed  by  this  title. 

Legislation  §  1682.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  837. 

CHAPTER  II. 

Rescission. 

§  1688.  Rescission  extinguishes  contract. 

§   1689.  When  party  may  rescind. 

§   1690.  When  stipuluations  against  right  to  rescind  do  not  defeat  it. 

§   1691.  Rescission,  how  effected. 

§  1688.  Rescission  extinguishes  contract.  A  contract  is 
extinguished  by  its  rescission. 

Legislation  §  1688.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  838. 

§1689.  When  party  may  rescind.  A  party  to  a  contract 
may  rescind  the  same  in  the  following  cases  only : 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  party 
jointly  contracting  with  him,  was  given  by  mistake,  or  obtained 
through  duress,  menace,  fraud,  or  undue  influence,  exercised 
by  or  w4th  the  connivance  of  the  party  as  to  whom  he  rescinds, 
or  of  any  other  party  to  the  contract  jointly  interested  with 
such  party ; 

2.  If,  through  the  fault  of  the  party  as  to  whom  he  rescinds, 
the  consideration  for  his  obligation  fails,  in  whole  or  in  part ; 

3.  If  such  consideration  becomes  entirely  void  from  any 
cause ; 


539  ALTERATION  AND  CANCELLATION  OF  CONTRACTS.         §  1697 

4.  If  such  consideration,  before  it  is  rendered  to  him,  fails 
in  a  material  respect,  from  any  cause ;  or, 

5 ,  By  consent  of  all  the  other  parties. 

Rescission:  See  post,  §§  3406  et  seq. 

Rescinding  sale  of  personalty  for  non-payment  of  price:  See  post, 
§  1749. 

Contract  not  free,  when  obtained  by  mistake,  duress,  menace,  fraud, 
or  undue  influence:  See  ante,  §  1567. 

Legislation  §  1689.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  839. 

§  1690.  When  stipulations  against  right  to  rescind  do  not 
defeat  it.  A  stipulation  that  errors  of  description  shall  not 
avoid  a  contract,  or  shall  be  the  subject  of  compensation,  or 
both,  does  not  take  away  the  right  of  rescission  for  fraud,  nor 
for  mistake,  where  such  mistake  is  in  a  matter  essential  to  the 
inducement  of  the  contract,  and  is  not  capable  of  exact  and 
entire  compensation. 

Legislation  §  1690.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  840. 

•  §  1691.  Rescission,  how  eifected.  Rescission,  when  not 
effected  by  consent,  can  be  accomplished  only  by  the  use,  on 
the  part  of  the  party  rescinding,  of  reasonable  diligence  to 
comply  with  the  following  rules : 

1.  He  must  rescind  promptly,  upon  discovering  the  facts 
which  entitle  him  to  rescind,  if  he  is  free  from  duress,  menace, 
undue  influence,  or  disability,  and  is  aware  of  his  right  to 
rescind ;  and, 

2.  He  must  restore  to  the  other  party  everything  of  value 
which  he  has  received  from  him  under  the  contract ;  or  must 
offer  to  restore  the  same,  upon  condition  that  such  party  shall 
do  likewise,  unless  the  latter  is  unable  or  positively  refuses  to 
do  so. 

Rescission  of  contracts:  See  post,  §§  3406-3408. 

Legislation  §  1691.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  841. 

2.  Amendment  by  Stats.  1901,  p.  408;  unconstitutional.  See  note,  §  4, 
ante. 

CHAPTER  in. 

Alteration  and  Cancellation. 

§  1697.  Alteration   of   verbal   contract. 

§  1698.  Written   contracts,  how  modified. 

§  1699.  Extinction  by  cancellation,  etc. 

§  1700.  Extinction  b^  unauthorized  alteration. 

§  1701.  Alteration   of  duplicate,   not   to   prejudice. 

§1697.  Alteration  of  verbal  contract.  A  contract  not  in 
writing  may  be  altered  in  any  respect  by  consent  of  the  parties, 


§  1701  CIVIL   CODE.  540 

in  writing,  without  a  new  consideration,  and  is  extinguished 
thereby  to  the  extent  of  the  new  alteration.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  242.] 

Alterations  in  written  instrument  to  be  accounted  for  by  party 
producing  it  in  evidence:   Code  Civ.  Proc,  §  1982. 

Legislation  §  1697.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  842),  and  then  read:  "A  contract  may  be 
altered  in  any  respect  by  consent  of  the  parties,  without  a  new  con- 
sideration, and  is  extinguished  therebA'  to  the  extent  of  the  alteration." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  242. 

§  1698.  Written  contracts,  how^  modified.  A  contract  in 
writing  may  be  altered  by  a  contract  in  writing,  or  by  an 
executed  oral  agreement,  and  not  otherwise.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  243.] 

Parol  evidence  to  alter  writings:  See  Code  Civ.  Proc,  §  1856;  and 
see  ante,  §  1639. 

Legislation  §  1698.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  jST.  Y.  Civ.  Code,  §843),  and  then  read:  "A  contract  in  writing 
may  be  altered  by  a  contract  in  writing,  or  by  an  executed  oral  agree- 
ment; and  not  otherwise,  except  as  to  the  time  of  performance,  which 
may  be  extended  by  any  form  of  agreement." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  243. 

§  1699.  Extinction  by  cancellation,  etc.  The  destruction  or 
cancellation  of  a  written  contract,  or  of  the  signature  of  the 
parties  liable  thereon,  with  intent  to  extinguish  the  obligation 
thereof,  extinguishes  it  as  to  all  the  parties  consenting  to  the 
act. 

Legislation  §  1699.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  844. 

§  1700.  Extinction  by  unauthorized  alteration.  The  inten- 
tional destruction,  cancellation,  or  material  alteration  of  a 
written  contract,  by  a  party  entitled  to  any  benefit  under  it,  or 
with  his  consent,  extinguishes  all  the  executory  obligations  of 
the  contract  in  his  favor,  against  parties  who  do  not  consent 
to  the  act. 

Legislation  §  1700.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  845. 

§  1701.  Alteration  of  duplicate,  not  to  prejudice.  Where 
a  contract  is  executed  in  duplicate,  an  alteration  or  destruction 
of  one  copy,  while  the  other  exists,  is  not  within  the  provisions 
of  the  last  section. 

Legislation  §  1701.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  846. 


541  OBLIGATIONS   IMPOSED  BY   LAW.  §  1711 

PAET  III. 
OBLIGATIONS  IMPOSED  BY  LAW. 

§  1708.  Abstinence  from   injury. 

§   1709.  Fraudulent   deceit. 

§  1710.  Deceit,   what. 

§   1711.  Deceit  upon  the  public,  etc. 

§   1712.  Eestoration   of   thing  wrongfully   acquired. 

§   1713.  When  demand  necessary. 

§  1714.  Eesponsibility  for  willful  acts,  negligence,  etc. 

§  1715.  Other  obligations. 

§  1708.     Abstinence  from  injury.     Every  person  is  bound, 
without  contract,  to  abstain  from  injuring  the  person  or  prop- 
erty of  another,  or  infringing  upon  any  of  his  rights. 
As  to  what  injuries  are  criminal:  See  Pen.  Code,  §§  346-367a. 
Legislation  §  1708.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  S47. 

§  1709.  Fraudulent  deceit.  One  who  willfully  deceives  an- 
other with  intent  to  induce  him  to  alter  his  position  to  his 
injury  or  risk,  is  liable  for  any  damage  which  he  thereby 
suffers. 

Legislation  §  1709.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  S48. 

§  1710.  Deceit,  what.  A  deceit,  within  the  meaning  of  the 
last  section,  is  either : 

1.  The  suggestion,  as  a  fact,  of  that  Avhich  is  not  true,  by  one 
who  does  not  believe  it  to  be  true ; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by  one 
who  has  no  reasonable  ground  for  believing  it  to  be  true ; 

3.  The  suppression  of  a  fact,  by  one  who- is  bound  to  disclose 
it,  or  who  gives  information  of  other  facts  which  are  likely  to 
mislead  for  want  of  communication  of  that  fact;  or, 

4.  A  promise,  made  without  any  intention  of  performing  it. 
Fraud.     Actual  or  constructive:  See  ante,  §§  1571  et  seq. 
Legislation  §  1710.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code!,  §  849. 

§  1711.  Deceit  upon  the  public,  etc.  One  Avho  practices  a 
deceit  with  intent  to  defraud  tlic  pu])]ic,  or  a  particular  class 
of  persons,  is  deemed  to  have  intended  to  defraud  every 
individual  in  that  class,  who  is  actually  misled  by  the  deceit. 

Legislation  §  1711.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  850. 


§  1715  CIVIL  CODE.  542 

§  1712.     Restoration    of   thing-   wrongfully   acquired.     One 

who  obtains  a  thing  without  the  consent  of  its  owner,  or  by  a 
consent  afterAvards  rescinded,  or  by  an  unlawful  exaction 
which  the  owner  could  not  at  the  time  prudently  refuse,  must 
restore  it  to  the  person  from  Avhom  it  Avas  thus  obtained,  un- 
less he  has  acquired  a  title  thereto  superior  to  that  of  such 
other  person,  or  unless  the  transaction  was  corrupt  and  unlaw- 
ful on  both  sides. 

Legislation  §  1712.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  851. 

§  1713.  When  demand  necessary.  The  restoration  required 
by  the  last  section  must  be  made  without  demand,  except  Avhere 
a  thing  is  obtained  by  mutual  mistake,  in  which  case  the  party 
obtaining  the  thing  is  not  bound  to  return  it  until  he  has 
notice  of  the  mistake. 

Legislation  §  1713.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  852. 

§  1714.     Responsibility    for    willful    acts,    negligence,    etc. 

Every  one  is  responsible,  not  only  for  the  result  of  his  Avillful 
acts,  but  also  for  an  injury  occasioned  to  another  by  his  want 
of  ordinary  care  or  skill  in  the  management  of  his  property  or 
person,  except  so  far  as  the  latter  has,  willfully  or  by  want  of 
ordinary  care,  brought  the  injury  upon  himself.  The  extent 
of  liability  in  such  cases  is  defined  by  the  title  on  compensatory 
relief. 

Compensatory  relief:   See  post,  §§  3281  et  seq. 

Legislation  §  1714.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  853. 

§  1715.  Other  obligations.  Other  obligations  are  prescribed 
by  divisions  one  and  tAvo  of  this  code. 

Legislation  §  1715.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  854. 

2.  Amendment  by  Stats.  1901,  p.  409;  unconstitutional.  See  note,  §  4, 
ante. 


543  GENERAL  PROVISIONS  AS  TO  SALES,  §  1721 


PART  IV. 

OBLIGATIONS    ARISING    FROM    PARTIC- 
ULAR TRANSACTIONS. 

Title  I.  Sale.     §§  1721-1798. 

II.  Exchange.     §§1804-1807. 

III.  Deposit.     §§  1813-1878. 

IV.  Loan.     §§  1884-1920. 

V.  Hiring.     §§  1925-1959. 

VI.  Service.     §§  1965-2079. 

VII.  Carriage.     §§  2085-2209. 

Vlir.  Trust.     §§2215-2289. 

IX.  Agency.     §§2295-2389. 

X.  Partnership.     §§  2395-2520. 

XI.  Insurance.     §§  2527-2766. 

XII.  Indemnity.     §§  2772-2781. 

XIII.  Guaranty.     §§  2787-2866. 

XIV.  Lien.     §§  2872-3080. 

XV.  Negotiable  Instruments.     §§  3086-3262. 

XVI.  General  Provisions.     §  3268. 

TITLE  I. 
Sale. 

Chapter  I.     General  Provisions.     Articles  I-III.     §§  1721-1741. 

11.     Eights    and    Obligations    of    the    Seller.     Articles    I-III.     §§ 
1748-1778. 
III.     Eights  and  Obligations   of  the  Buyer.     §§  1784-1786. 
TV.     Sale  by  Auction.     §§  1792-1798. 

CHAPTER  I. 

General  Provisions. 

Article  I.     Sale.     §§  1721,  1722. 

II.     Agreements   for   Sale.     §§  1726-1734. 
III.     Form    of    the    Contract.     §§  1739-1741. 

AETICLE  I. 

Sale. 

§  1721.     Sale,  what. 

§  1722.     Subject    of    sale. 

§  1721.  Sale,  what.  Sale  is  a  contract  by  which,  for  a 
pecuniary  consideration,  called  a  price,  one  transfers  to  another 
an  interest  in  property. 


§  1730  CIVIL  CODE.  544 

Legislation  §  1721.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  Soo. 

§  1722.  Subject  of  sale.  The  subject  of  sale  must  be  prop- 
erty, the  title  to  which  can  be  immediately  transferred  from 
the  seller  to  the  buyer. 

Legislation  §  1722.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  856. 

ARTICLE  II. 

Agreements  for  Sale. 

§  1726.  Agreement  for  sale. 

§   1727.  Agreement   to   sell. 

§   1728.  Agreement  to  buy. 

§  1729.  Agreement  to   sell   and  buy. 

§   1730.  "What  may  be  the  subject  of  the  contract. 

§   1731.  Agreement  to  sell  real  property. 

§   1732.  Form  of  grant  required  by  such   contract.     [Repealed.] 

§   1733.  Usual  common-law  covenants  required  by  such  contracts,  when. 

§   1734.  Form  of  such   covenants. 

§  1726.  Agreement  for  sale.  An  agreement  for  sale  is 
either : 

1.  An  agreement  to  sell; 

2.  An  agreement  to  buy ;  or, 

3.  A  mutual  agreement  to  sell  and  buy. 

Legislation  §  1726.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  857. 

§  1727.  Agreement  to  sell.  An  agreement  to  sell  is  a  con- 
tract by  Avhich  one  engages,  for  a  price,  to  transfer  to  another 
the  title  to  a  certain  thing. 

Legislation  §  1727.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  858. 

§  1728.  Agreement  to  buy.  An  agreement  to  buy  is  a  con- 
tract by  which  one  engages  to  accept  from  another,  and  pay  a 
price  for  the  title  to  a  certain  thing. 

Legislation  §  1728.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  859. 

§  1729.  Agreement  to  sell  and  buy.  An  agreement  to  sell 
and  buy  is  a  contract  by  which  one  engages  to  transfer  the 
title  to  a  certain  thing  to  another,  who  engages  to  accept  the 
same  from  him  and  to  pay  a  price  therefor. 

Legislation  §  1729.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  860. 

§  1730.  What  may  be  the  subject  of  the  contract.  Any 
property  which,  if  in  existence,  might  be  the  subject  of  sale, 
may  be  the  subject  of  an  agreement  for  sale,  whether  in  exist- 
ence or  not. 


545  FORM  OP  CONTRACT  OF  SALE.  §  1739 

Legislation  §  1730,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  861. 

§  1731.  Agreement  to  sell  real  property.  An  agreement  to 
sell  real  property  l)inds  the  seller  to  execute  a  conveyance  in 
form  sufficient  to  pass  the  title  to  the  property.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  243.] 

Legislation  §  1731.     1.  Enacted    March     21,     1872    (based    on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  862),  and  then  read:    "An  agreement  to  sell  real 
property  binds  the'  seller  to  execute  a  grant  in  the  form  and  manner 
prescribed  by  the  chapter  on  transfers  of  real  property." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  243. 

§  1732.  Form  of  grant  required  by  such  contract.  [Re- 
pealed 1874;  Code  Amdts.  1873-74,  p.  243.] 

Legislation  §  1732.     1.  Enacted  March  21.  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  243. 

§  1733.  Usual  common-law  covenants  required  by  such  con- 
tracts, when.  An  agreement  on  the  part  of  a  seller  of  real 
property  to  give  the  usual  covenants,  binds  him  to  insert  in 
the  grant  covenants  of  "seisin,"  ''quiet  enjoyment,"  "fur- 
ther assurance,"  "general  warranty,"  and  "against  encum- 
brances." 

Legislation  §  1733.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  863. 

§  1734.  Form  of  such  covenants.  The  covenants  mentioned 
in  the  last  section  must  be  in  substance  as  follows:  "The  party 
of  the  first  part  covenants  with  the  party  of  the  second  part, 
that  the  former  is  now  seised  in  fee-simple  of  the  property 
granted ;  that  the  latter  shall  enjoy  the  same  without  any  law- 
ful disturbance;  that  the  same  is  free  from  all  encumbrances; 
that  the  party  of  the  first  part,  and  all  persons  acquiring  any 
interest  in  the  same  through  or  for  him,  will,  on  demand,  exe- 
cute and  deliver  to  the  party  of  the  second  part,  at  the  expense 
of  the  latter,  any  further  assurance  of  the  same  that  may  be 
reasonably  required ;  and  that  the  party  of  the  first  part  will 
warrant  to  the  party  of  the  second  part  all  the  said  property 
against  every  person  lawfully  claiming  the  same." 

Legislature  §  1734.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  864. 

ARTICLE  III. 

Form    of   the    Contract. 

§   1739.     Contract  for   sale   of   personal   property. 

§   1740.     Contract    to    mannfactnro. 

§   1741.     Contract   for  sale  of  real   property. 

§  1739.  Contract  for  sale  of  personal  property.  No  sale 
of  personal  property,  or  agreement  to  buy  or  sell  it  for  a 
price  of  two  hundred  dollars  or  more,  is  valid,  unless : 

Civ.  Code — 35 


§  1741  CIVIL  CODE.  546 

One.  The  agreement  or  some  note  or  memorandum  thereof 
be  in  writing,  and  subscribed  by  the  part}'  to  be  charged,  or 
by  his  agent;  or, 

Two.  The  buyer  accepts  and  receives  part  of  the  thing 
sold,  or  when  it  consists  of  a  thing  in  action,  part  of  the  evi- 
dences thereof,  or  some  of  them ;  or, 

Three.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the 
price.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  243.] 

statute  of  frauds:  See  Code  Civ.  Proc,  §§  1971-1974. 
Legislation  §  1739.  1.  Enacted  March  21,  1872  (based  on  Fraudulent 
Conveyance  and  Contract  Act  1850,  Stats.  1850,  p.  266,  §13;  Field's 
Draft,  N.  Y.  Civ.  Code,  §  865),  and  then  read:  "No  sale  of  personal  prop- 
erty, or  agi-eement  to  buy  or  sell  it,  for  a  price  of  two  hundred  dollars  or 
more,  is  valid,  unless:  1.  A  memorandum  of  the  contract,  showing  the 
parties,  their  consent,  and  the  subject  of  sale,  is  made  in  writing,  and 
subscribed  by  the  party  to  be  charged;  or,  2.  The  buyer  accepts  and  re- 
ceives part  of  the  thing  sold,  or  when  it  consists  of  a  thing  in  action, 
part  of  the  evidences  thereof;  or,  3.  The  buyer,  at  the  time  of  sale,  pays 
a  part  of  the  price." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  243. 

§  1740.  Contract  to  manufacture.  An  agreement  to  manu- 
facture a  thing,  from  materials  furnished  by  the  manufac- 
turer, or  by  another  person,  is  not  within  the  provisions  of  the 
last  section. 

Legislation  §  1740.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  866. 

§  1741.  Contract  for  sale  of  real  property.  No  agreement 
for  the  sale  of  real  property,  or  of  an  interest  therein,  is  valid, 
unless  the  same,  or  some  note  or  memorandum  thereof,  be  in 
writing,  and  subscribed  by  the  party  to  be  charged,  or  his 
agent,  thereunto  authorized  in  writing;  but  this  does  not 
abridge  the  poAvcr  of  any  court  to  compel  the  specific  perform- 
ance of  any  agreement  for  the  sale  of  real  property  in  case  of 
part  performance  thereof.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  243.] 

statute  of  frauds:  See  ante,  §  1624;  also  Code  Civ.  Proc,  §§  1971- 
1974. 

Legislation  §  1741.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  867),  and  then  read:  "Xo  agreement  for  the 
sale  of  real  property,  or  of  any  estate'  therein,  other  than  an  estate 
for  a  term  not  exceeding  one  year,  is  valid,  unless  a  memorandum 
thereof,  showing  the  parties,  their  consent,  and  the  subject  of  sale, 
is  made  in  writing,  and  subscribed  by  the  party  to  be  charged,  or  his 
agent,  thereunto  authorized  in  writing,  or  unless  the  contract  has  been 
partially  performed  by  the  party  seeking  to  enforce  it,  and  such  part 
performance  has  been  accepted  by  the  other." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  243. 


547  DELIVERY  OF  GOODS.  §  1753 

CHAPTER  II. 

Rights  and  Obligations  of  the  Seller. 

Article  I.     Eights   and   Duties  before  Delivery.     §§  1748,   1749. 
II.     Delivery.     §§  1753-1758. 
III.     Warranty.     §§  1763-1778. 

ARTICLE  I. 

Rights  and  Duties  Before  Delivery. 

§  1748.     When  seller  must   act  as  depositary. 
§  1749.     When  seller  may  resell. 

§  1748.  When  seller  must  act  as  depositary.  After  per- 
sonal property  has  heen  sold,  and  nntil  the  delivery  is  com- 
pleted, the  seller  has  the  rights  and  obligations  of  a  deposi- 
tary for  hire,  except  that  he  must  keep  the  property,  without 
charge,  until  the  buyer  has  had  a  reasonarble  opportunity  to 
remove  it. 

Legislation  §  1748.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  869. 

§  1749.  When  seller  may  resell.  If  a  buyer  of  personal 
property  does  not  pay  for  it  according  to  contract,  and  it 
remains  in  the  possession  of  the  seller  after  payment  is  due, 
the  seller  may  rescind  the  sale,  or  may  enforce  his  lien  for  the 
price,  in  the  manner  prescribed  by  the  title  on  liens. 

Rescission  of  contracts,  generally:  See  ante,  §§  1688  et  seq.;  post, 
§§3406  et  seq. 

Rescission  of  contract  of  sale  by  buyer:  See  post,  §§  1785,  1786. 

Liens:   See  post,  §§  2872  et  seq. 

Legislation!  1749.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  870. 

ARTICLE  II. 

Delivery. 

§  1753.  Delivery   on   demand. 

§  1754.  Delivery,  where  made. 

§  1755.  Expense  of  transportation. 

§  1756.  Notice  of  election  as  to  delivery. 

§  1757.  Buyer's  directions  as  to  manner  of  sending  thing  sold. 

§  1758.  Delivery  to  be  within  reasonable  hours. 

§  1753.  Delivery  on  demand.  One  Avho  sells  personal  prop- 
erty, whether  it  was  in  his  possession  at  the  time  of  sale  or 
not,  must  put  it  into  a  condition  fit  for  delivery,  and  deliver 
it  to  the  buyer  within  a  reasonable  time  after  demand,  unless 
he  has  a  lien  thereon. 

Performance,  •'generally:  See  nnte,  §§  1473,  1485  et  seq. 
Delivery  sufficient  as  to  third  person:  See  post,  §  3440. 
Legislation  §  1753.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  871. 


§  1758  CIVIL,  CODE.  548 

§  1754.  Delivery,  where  made.  Personal  property  sold  is 
deliverable  at  the  place  "vvhere  it  is  at  the  time  of  the  sale  or 
agreement  to  sell,  or  if  it  is  not  then  in  existence,  it  is  deliver- 
able at  the  place  where  it  is  produced. 

Legislation  §  1754.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  872. 

§  1755.  Expense  of  transportation.  One  who  sells  personal 
property  must  bring  it  to  his  own  door,  or  other  convenient 
place,  for  its  acceptance  by  the  buyer,  but  further  transporta- 
tion is  at  the  risk  and  expense  of  the  buyer. 

Legislation  §  1755.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  873. 

§  1756.  Notice  of  election  as  to  delivery.  When  either 
party  to  a  contract  of  sale  has  an  option  as  to  the  time,  place, 
or  manner  of  delivery,  he  must  give  the  other  party  reason- 
able notice  of  his  choice ;  and  if  he  does  not  give  such  notice 
within  a  reasonable  time,  his  right  of  option  is  waived. 

Legislation  §  1756.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
jSr.  Y.  Civ.  Code,  §  874. 

§  1757.  Buyer's  directions  as  to  manner  of  sending*  thing 
sold.  If  a  seller  agrees  to  send  the  thing  sold  to  the  buyer, 
he  must  follow  the  directions  of  the  latter  as  to  the  manner 
of  sending,  or  it  will  be  at  his  own  risk  during  its  transporta- 
tion. If  he  folloAvs  such  directions,  or  if,  in  the  absence  of 
special  directions  he  uses  ordinary  care  in  forwarding  the 
thing,  it  is  at  the  risk  of  the  buyer. 

Legislation  §  1757.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  ^7-". 

§  1758.  Delivery  to  be  w^ithin  reasonable  hours.  The  de- 
livery of  a  thing  sold  can  be  offered  or  demanded  only  within 
reasonable  hours  of  the  day. 

Legislation  §  1758.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  876. 


549  WARRANTY  IN  SALES.  §  1767 

AETICLE  III. 

Warranty. 

§   1763.  Warranty,  what. 

§  1764.  No  implied  warranty  in  mere  contract  of  sale. 

§  1765.  Warranty  of  title  to  personal  property. 

§   1766.  Warranty  on  sale  by  sample. 

§   1767.  When    seller   knows   that   buyer   relies    on   his    statements,   etc. 

§  1768.  Merchandise  not  in  existence. 

§  1769.  Manufacturer's  warranty  against  latent  defects. 

§   1770.  Thing  bought  for  particular  purpose. 

§   1771.  When  thing  cannot  be  examined  by  buyer. 

§   1772.  Trade-marks. 

§  1773.  Other  marks. 

§  1774.  Warranty  on  sale  of  written  instrument. 

§  1775.  Warranty   of   provisions  for   domestic   use. 

§  1776.  Warranty  on  sale  of  good-will. 

§  1777.  Warranty  upon  judicial  sale. 

§  1778.  Effect  of  general  warranty. 

§  1763.     Warranty,  what.     A  warranty  is  an  engagement  by 

which  a  seller  assures  to  a  buyer  the  existence  of  some  fact 

affecting  the  transaction,  whether  past,  present,  or  future. 

Legislation  §  1763.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  877. 

§  1764.  No  implied  warranty  in  mere  contract  of  sale.  Ex- 
cept as  prescribed  hy  this  article,  a  mere  contract  of  sale  or 
agreement  to  sell  does  not  imply  a  warranty. 

Warranty  of  genuineness  on  exchange  of  money:  Post,  §  1807. 
Legislation  §  1764.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  878. 

§  1765.    Warranty  of  title  to  personal  property.     One  who 

sells  or  agrees  to  sell  personal  property,  as  his  own,  thereby 
warrants  that  he  has  a  good  and  unencumbered  title  thereto. 
Legislation  §  1765.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  879. 

§  1766.  Warranty  on  sale  by  sample.  One  who  sells  or 
agrees  to  sell  goods  by  sample,  thereby  warrants  the  bulk  to 
be  equal  to  the  sample. 

Legislation  §  1766.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  880. 

§  1767.  When  seller  knows  that  buyer  relies  on  his  state- 
ments, etc.  One  who  sells  or  agrees  to  sell  personal  property, 
knowing  that  the  buyer  relies  upon  his  advice  or  judgment, 
thereby  warrants,  to  the  buyer  that  neither  the  seller,  nor  any 
agent  employed  by  him  in  the  transaction,  knows  the  exist- 
ence of  any  fact  concerning  the  thing  sold  which  would,  to 
his  knowledge,  destroy  the  buyer's  inducement  to  buy. 

Legislation  §  1767.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Cod^,  §  881. 


§  1774  CIVIL  CODE.  550 

§  1768.     Merchandise  not  in  existence.     One  who  agrees  to 

sell  merchandise  not  then  in  existence,  thereby  warrants  that 

it  shall  be  sound  and  merchantable  at  the  place  of  production 

contemplated  by  the  parties,  and  as  nearly  so,  at  the  place  of 

delivery,  as  can  be  secured  by  reasonable  care. 

Legislation  §  1768.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  SS2. 

§  1769.     Manufacturer's   warranty  against  latent   defects. 

One  who  sells  or  agrees  to  sell  an  article  of  his  own  manufac- 
ture thereby  warrants  it  to  be  free  from  any  latent  defect, 
not  disclosed  to  the  buyer,  arising  from  the  process  of  manu- 
facture, and  also  that  neither  he  nor  his  agent  in  such  manu- 
facture has  knowingly  used  improper  materials  therein. 

Legislation  §  1769.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  883. 

§  1770.      Thing  bought  for  particular  purpose.      One  who 

manufactures  an  article  under  an  order  for  a  particular  pur- 
pose, warrants  by  the  sale  that  it  is  reasonably  fit  for  that 
purpose. 

Legislation  §  1770.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  884. 

§  1771.     When  thing   cannot   be  examined   by  buyer.     One 

who  sells  or  agrees  to  sell  merchandise  inaccessible  to  the 
examination  of  the  buyer,  thereby  Avarrants  that  it  is  sound 
and  merchantable. 

Legislation  §  1771.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  885. 

§  1772.     Trade-marks.     One  who  sells  or  agrees  to  sell  any 

article  to  which  there    is  affixed    or  attached    a  trade-mark, 

thereby  warrants  that  mark  to  be  genuine  and  lawfully  used. 

Selling  goods  with  counterfeit  trade-mark:    See  Pen.  Code.  §  351. 

Legislation  §  1772.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  886. 

§  1773.  Other  marks.  One  who  sells  or  agrees  to  sell  any 
article  to  which  there  is  affixed  or  attached  a  statement  or 
mark  to  express  the  quantity  or  quality  thereof,  or  the  place 
where  it  was,  in  whole  or  in  part,  produced,  manufactured,  or 
prepared,  thereby  warrants  the  truth  thereof. 
Owner  of  trade-mark:  Pol.  Code,  §  3199. 

Legislation  §  1773.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  887. 

§  1774.     Warranty  on  sale  of  written  instrument.     One  who 
sells  or  agrees  to  sell  an  instrument  purporting  to  bind  any 


551  ^  WARRANTY  IN  SALES.  §  1778 

one  to  the  performance  of  an  act,  thereby  warrants  that  he- 
has  no  knowledge  of  any  facts  Avhich  tend  to  prove  it  worth- 
less, such  as  the  insolvency  of  any  of  the  parties  thereto, 
where  that  is  material,  the  extinction  of  its  obligations,  or  its 
invalidity  for  any  cause.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  244.] 

■Legislation  §  1774.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code',  §  888),  and  then  read:  "One  who  sells  ot  agrees 
to  sell  an  instrnment  purporting  to  bind  any  one  to  the  performance 
of  an  act,  thereby  warrants  the  instrument  to  be  what  it  purports  to 
be,  and  to  be  binding  according  to  its  purport  upon  all  the  parties 
thereto;  and  also  warrants  that  he  has  no  knowledge  of  any  facts 
which  tend  to  prove  it  worthless,  such  as  the  insolvency  of  any  of  the 
parties  thereto,  where  that  is  material,  the  extinction  of  its  obligations, 
or  its  invalidity  for  any  cause." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  244. 

§  1775.     Warranty    of   provisions    for   domestic   use.     One 

who  makes  a  business  of  selling  provisions  for  domestic  use 
warrants  by  a  sale  thereof,  to  one  who  buys  for  actual  con- 
sumption, that  they  are  sound  and  w^holesome. 

Legislation  §  1775.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  889. 

§  1776.  Warranty  on  sale  of  good-will.  One  who  sells  the 
good-will  of  a  business  thereby  warrants  that  he  will  not  en- 
deavor to  draw  off  any  of  the  customers. 

Legislation  §  1776.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  890. 

§  1777.  Warranty  upon  judicial  sale.  Upon  a  judicial  sale, 
the  only  warranty  implied  is  that  the  seller  does  not  know 
that  the  sale  will  not  pass  a  good  title  to  the  property. 

Legislation  §  1777.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  891. 

§  1778.  Effect  of  general  warranty.  A  general  warranty 
does  not  extend  to  defects  inconsistent  therewith  of  which  the 
buyer  was  then  aware,  or  which  were  then  easily  discernible 
by  him  without  the  exercise  of  peculiar  skill;  but  it  extends 
to  all  other  defects. 

Legislation  §  1778.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  892. 


§  1793  CIVIL  CODE.  552 

CHAPTER  HI. 

Rights  and  Obligations  of  the  Buyer. 

§   1784.     Price,  wlien  to  be  paid. 
§   1785.     Eight  to  inspect  goods. 
§   1786.     Eights   in    ease   of   breach   of  warranty. 

§  1784.     Price,  when  to  be  paid.     A  buyer  must  pay  the 
price  of  the  thing  sokl  on  its  delivery,  and  must  take  it  away 
within  a  reasonable  time  after  the  seller  offers  to  deliver  it. 
When  seller  must  act  as  bailee:  See  ante,  §  1748. 

Legislation  §  1784.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  893. 

§  1785.  Right  to  inspect  goods.  On  an  agreement  for  sale, 
with  warranty,  the  buyer  has  a  right  to  inspect  the  thing  sold, 
at  a  reasonable  time,  before  accepting  it ;  and  may  rescind  the 
contract  if  the  seller  refuses  to  permit  him  to  do  so. 

Rescission  of  contract  by  seller:  See  ante,  §  1749. 
Rescission  by  buyer  for  breach  of  warranty:  See  post,  §  1786. 
Legislation  §  1785.      Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  894. 

§  1786.  Rights  in  case  of  breach  of  warranty.  The  breach 
of  a  warranty  entitles  the  buyer  to  rescind  an  agreement  for 
sale,  but  not  an  executed  sale,  unless  the  warranty  was  in- 
tended by  the  parties  to  operate  as  a  condition. 

Legislation  §  1786.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  895. 

CHAPTER  IV. 

Sale  by  Auction. 

§   1792.  Sale  by  auction,  what. 

§  1793.  Sale,  when  complete. 

§  1794.  Withdrawal  of  bid. 

§   1795.  Sale  under  written  conditions. 

§  1796.  Eights  of  buyer  upon   sale  without  reserve. 

§  1797.  By-bidding. 

§   1798.  Auctioneer's   memorandum   of   sale. 

§  1792.  Sale  by  auction,  what.  A  sale  by  auction  is  a  sale 
by  public  outcry  to  the  highest  bidder  on  the  spot. 

Auctioneers.     Authority  of,  generally:  See  post.  §§  2362,  2363. 
Regulations   respecting   auctioneers'   bonds,   license,   etc.:    Pol.   Code, 

§§  ;-!2S4   et   seq. 

Legislation  §  1792.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  896. 

§  1793.  Sale,  when  complete.  A  sale  by  auction  is  com- 
plete when  the  auctioneer  publicly  announces,  by  the  fall  of 


553  SALE  BY  AUCTION.  §  1798 

his  hammer,  or  in  any  other  customary  manner,  that  the  thing 
is  sold. 


N, 


Legislation  §  1793.     Enacted  March  -21,  1872;  based  on  Field's  Draft, 
,  Y.  Civ.  Code,  §  897. 


§  1794.  Withdrawal  of  bid.  Until  the  annonncement  men- 
tioned in  the  last  section  has  been  made,  any  bidder  may  with- 
draw his  bid,  if  he  does  so  in  a  manner  reasonably  sufficient 
to  bring  it  to  the  notice  of  the  auctioneer. 

Legislation  §  1794.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  S9S. 

§  1795.  Sale  under  written  conditions.  When  a  sale  by 
auction  is  made  upon  written  or  printed  conditions,  such  con- 
ditions cannot  be  modified  by  any  oral  declaration  of  the 
auctioneer,  except  so  far  as  they  are  for  his  own  benefit. 

Legislation  §  1795.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  899. 

§  1796.     Rights  of  buyer  upon  sale  without  reserve.     If,  at 

a  sale  by  auction,  the  auctioneer,  having  authority  to  do  so, 
publicly  announces  that  the  sale  will  be  without  reserve,  or 
makes  any  announcement  equivalent  thereto,  the  highest  bid- 
der in  good  faith  has  an  absolute  right  to  the  completion  of 
the  sale  to  him ;  and,  upon  such  a  sale,  bids  by  the  seller,  or 
any  agent  for  him,  are  void. 

Legislation  §  1796.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  900. 

§  1797.  By-bidding".  The  employment  by  a  seller  of  any 
person  to  bid  at  a  sale  by  auction,  without  the  knowledge  of 
the  buyer,  without  an  intention  on  the  part  of  such  bidder  to 
buy,  and  on  the  part  of  the  seller  to  enforce  his  bid,  is  a  fraud 
upon  the  buyer,  which  entitles  him  to  rescind  his  purchase. 

Legislation  §  1797.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  901. 

§1798.  Auctioneer's  memorandum  of  sale.  When  prop- 
erty is  sold  by  auction,  an  entry  made  by  the  auctioneer,  in 
his  sale-book,  at  the  time  of  the  sale,  specifying  the  name  of 
the  person  for  w^hom  he  sells,  the  thing  sold,  the  price,  the 
terms  of  sale,  and  the  name  of  the  buyer,  binds  both  the 
parties  in  the  same  manner  as  if  made  by  themselves. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  244.] 
Auctioneer  may  make  memorandum:  See'  ante,  §  1624,  subd.  4. 
Legislation  §  1798.     1.  Enacted    March    21,    1872    (based    on    Field's 

Draft,    N.    Y.    Civ.    Code,  §  902,    modified    in    form,    but    not    in    effect; 

Fraudulent  Conveyance  and  Contract  Act  1850,  Stats.  1850,  p.  266,  §  14), 

and  then  read:  "When  property  is  sold  by  auction,  the  auctioneer;  or  his 


§  1807  CIVIL  CODE.  554 

partner  or  clerk,  may  enter  Ib  a  sale-book  at  the  time  of  the  sale,  a 
memorandum  specifying  the  name  of  the  person  for  whom  he  sells,  the 
thing  sold,  the  price,  the  terms  of  sale,  and  the  name  of  the  buyer.  A 
memorandum  thus  made  binds  both  the  parties  in  the  same  manner  as 
if  made  bv  themselves." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  244. 


TITLE  II. 

Exchange. 

§  1804.  Exchange,  what. 

§  1805.  Form   of   contract. 

§  1806.  Parties  have  rights   and   obligations   of  sellers  and  buyers. 

5  1S07.  Warranty   of  money. 

§  1804.  Exchange,  what.  Exchange  is  a  contract  by  which 
the  parties  mutually  give,  or  agree  to  give,  one  thing  for  an- 
other, neither  thing,  or  both  things,  being  money  only. 

Legislation  §  1804.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  903. 

§  1805.  Form  of  contract.  The  provisions  of  section  seven- 
teen hundred  and  thirty-nine  apply  to  all  exchanges  in  Avhich 
the  value  of  the  thing  to  be  given  by  either  party  is  tAvo  hun- 
dred dollars  or  more. 

Legislation  §  1805.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  904. 

§  1806.  Parties  have  rights  and  oblig-ations  of  sellers  and 
buyers.  Tlie  provisions  of  the  title  on  sale  apply  to  exchanges. 
Each  party  haij  the  rights  and  obligations  of  a  seller  as  to  the 
thing  Avhich  he  gives,  and  of  a  buyer  as  to  that  which  he  takes. 

Legislation  §  1S06.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  905. 

§  1807.  Warranty  of  money.  On  an  exchange  of  money, 
each  party  thereby  warrants  the  genuineness  of  the  money 
given  by  him. 

Legislation  §  1807.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code',  §  906. 


555  '  NATURE   AND   CREATION   OF  DEPOSIT.  §  1815 

TITLE  III. 
Deposit. 

Chapter  I.     Deposit  in  General.     Articles  I,  II.     §§  1813-1828. 
II.     Deposit  for  Keeping.     Articles  I-V.     §§  1833-1872. 
III.     Deposit  for  Exchange.     §  1878. 

CHAPTER  I. 

Deposit  in  General. 

Article  I.     Nature   and   Creation   of   Deposit.     §§  1813-1818. 
II.     Obligations    of    the    Depositary.     §§  1822-1828. 

AETICLE  I. 

Nature  and  Creation  of  Deposit. 

§  1813.  Deposit,  kinds  of. 

§   1814.  Voluntary  deposit,  how  made. 

§   1815.  Involuntary   deposit,   how  made. 

§   1816.  Duty    of    involuntary    depositary. 

§   1817.  Deposit   for   keeping,   what. 

§  1818.  Deposit  for  exchange,  what. 

§  1813.  Deposit,  kinds  of.  A  deposit  may  be  voluntary  or 
involuntary ;  and  for  safekeeping  or  for  exchange. 

Deposit  for  keeping:   Post.  §§  1833  et  seq. 

Gratuitous  deposit,  and  incidents:  Post,  §§  1844  et  seq. 

Deposit  for  hire:  Post,  §§  18.51  et  seq. 

Deposit  for  exchange:  Post,  §  1878. 

Loan  for  use:  Post,  §§  1884  et  seq.     Loan  for  exchange:  Post,  §  1902. 

Loan  of  money:  Post,  §  1912. 

Hiring:   See  post,  §§  1925  et  seq. 

Innkeepers:  Post,  §§  1859  et  seq. 

Common  carriers:  Post,  §§  2085  et  seq. 

Pledge:  Post,  §§  2986  et  seq. 

Legislation  §  1813.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  907. 

§  1814.  Voluntary  deposit,  how  made.  A  voluntary  deposit 
is  made  by  one  giving  to  another,  with  his  consent,  the  pos- 
session of  personal  property  to  keep  for  the  benefit  of  the 
former,  or  of  a  third  party.  The  person  giving  is  called  the 
depositor,  and  the  person  receiving  the  depositary. 

Finder  of  lost  articles:   See  post,  §§  1864  et  seq. 
Obligations  of  depositary:   See  post,  §§  1822  et  seq. 
Legislation  §  1814.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  908. 

§  1815.  Involuntary  deposit,  how  made.  An  involuntary 
deposit  is  made : 


§  1822  CIVIL  CODE.  556 

1.  By  the  accidental  leaving  or  placing  of  personal  property 
in  the  possession  5f  any  pei:son,  without  negligence  on  the  part 
of  its  owner ;  or, 

2.  In  cases  of  fire,  shipwreck,  inundation,  insurrection,  riot, 
or  like  extraordinary  emergencies,  by  the  owner  of  personal 
property  committing  it,  out  of  necessity,  to  the  care  of  any 
person. 

Involuntary  deposit  in  cases  of  emergency  must  be  accepted:  See 

post,  §  IS  16. 

Involuntary  deposit  is  gratuitous:  See  post,  §  1845. 

Degree  of  care  requisite:  See  post,  §  1846. 

Duties  of  depositary,  when  cease:  See  post,  §  1847. 

Notice  to  owner  to  remove:  See  post,  §  1847. 

Legislation  §  1815.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code.  §  909.     ' 

§  1816.  Duty  of  involuntary  depositary.  The  person  with 
whom  a  thing  is  deposited  in  the  manner  described  in  the  last 
section  is  bound  to  take  charge  of  it,  if  able  to  do  so. 

Legislation  §  1816.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  910. 

§  1817.  Deposit  for  keeping",  Vv^hat.  A  deposit  for  keeping 
is  one  in  which  the  depositary  is  bound  to  return  the  identical 
thing  deposited. 

Deposit  for  keeping:   See  post,  §§  1833  et  seq. 

Legislation  §  1817.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  911. 

§  1818.     Deposit   for   exchange,   vi^hat.     A   deposit   for   ex- 
change is  one  in  which  the  depositary  is  only  bound  to  return 
a  thing  corresponding  in  kind  to  that  Avhich  is  deposited. 
Deposit  for  exchange  transfers  title:  Post,  §  1878. 
Loan  for  exchange:   See  post,  §§  1902  et  seq. 

Legislation  §  1818.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  912. 

ARTICLE  II. 

Obligations   of  the  Depositary. 

§  1822.  Depositary  must   deliver   on   demand. 

§  1823.  No  obligation  to  deliver  without  demand. 

§  1824.  Place  of  delivery. 

§  1825.  Notice  to  owner  of  adverse  claim. 

§  1S26.  Notice   to    owner   of  thing  wrongfully   detained. 

§  1827.  Delivery   of  thing   owned  jointly,   etc. 

§  1828.  Joint  deposits  by  more  than  one  person. 

§  1822.  Depositary  must  deliver  on  demand.  A  depositary 
must  deliver  the  thing  to  the  person  for  Avhose  benefit  it  was 
deposited,  on  demand,  whether  the  deposit  was  made  for  a 
specified  time  or  not,  unless  he  has  a  lien  upon  the  thing  de- 


557  OBLIGATIONS  OF  THE  DEPOSITARY.  §  1827 

posited,  or  has  been  for])idden  or  prevented  from  doing  so  b}^ 
the  real  owner  thereof,  or  by  the  act  of  the  law,  and  has  given 
the  notice  required  by  section  eighteen  hundred  and  twenty- 
five. 

Delivery:   See  post,  §§  1823,  1827. 

Care  rectuired  of  depositary:  See  post,  §  1852. 

Depositary's  lien.  For  a  general  lieu  upon  personalty  dependent 
on  possession,  consult  post,"§  30.51. 

Notice  of  adverse  proceedings:  Post,  §  1825. 

Lien  of  innkeepers:  See  post,  §§  1861  et  seq. 

Legislation  §  1822.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.   Code,  §  913. 

§  1823.  No  obligation  to  deliver  without  demand.  A  de- 
positary is  not  bound  to  deliver  a  thing  deposited  without  de- 
mand, even  A\'here  the  deposit  is  made  for  a  specified  time. 

Legislation  §  1823.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  914. 

§  1824.     Place  of  delivery.     A  depositary  must  deliver  the 

thing  deposited  at  his  residence  or  place  of  business,  as  may 

be  most  convenient  for  him. 

Delivery  on  sales:   See  ante,  §§  1753  et  seq. 

Legislation  §  1824.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  915. 

§  1825.  Notice  to  owner  of  adverse  claim.  A  depositary 
must  give  prompt  notice  to  the  person  for  whose  benefit  the 
deposit  was  made,  of  any  proceedings  taken  adversely  to  his 
interest  in  the  thing  deposited,  which  may  tend  to  excuse  the 
depositary  from  delivering  the  thing  to  him. 

Legislation  §  1825.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  916. 

§  1826.    Notice  to  owner  of  thing  wrongfully  detained.    A 

depositary,  who  believes  that  a  thing  deposited  with  him  is 
wrongfully  detained  from  its  true  owner,  may  give  him  notice 
of  the  deposit ;  and  if  within  a  reasonable  time  afterAvards  he 
does  not  claim  it,  and  sufficiently  establish  his  right  thereto, 
and  indemnify  the  depositary  against  the  claim  of  the  depos- 
itor, the  depositary  is  exonerated  from  liability  to  the  person 
to  whom  he  gave  the  notice,  upon  returning  the  thing  to  the 
depositor,  or  assuming,  in  good  faith,  a  new  obligation  chang- 
ing his  position  in  respect  to  the  thing,  to  his  prejudice. 

Legislation  §  1826.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Coile,  §  917. 

§1827.  Delivery  of  thing  owned  jointly,  etc.  If  a  thing 
deposited  is  owned  jointly  or  in  common  by  persons  who  can- 
not agree  upon  the  manner  of  its  delivery,  the  depositary  may 


§  1833  CIVIL  CODE.  558 

deliver  to  each  his  proper  share  thereof,  if  it  can  he  done  with- 
out injury  to  the  thing. 

Legislation  §  1827.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  918.  The  code  commissioners  say:  "This  provision 
is  new,  but  is  intended  to  obviate  a  difficulty  which  may  sometimes 
arise." 

§  1828.     Joint  deposits  by  more  than  one  person.     When  a 

deposit  is  made  in  the  name  of  two  or  more  persons,  deliverable 
or  payable  to  either  or  to  their  survivor  or  'survivors,  such  de- 
posit or  any  part  thereof,  or  increase  thereof,  may  be  delivered 
or  paid  to  either  of  said  persons  or  to  the  survivor  or  survivors 
in  due  course  of  business. 

Legislation  §  1828.  Added  by  Stats.  1907,  p.  92;  the  code  commis- 
sioner saying,  "A  new  section,  added  to  protect  banks  in  paying  joint 
accounts  to  survivors,  in  due  course  of  business,  without  waiting  for 
any  authorization  of  court." 


CHAPTER  II. 

Deposit  for  Keeping. 

Article  I.     General  Provisions.     §§  1833-1840. 
II.     Gratuitous    Deposit.     §§  1844-1847. 

III.  Storage.     §§  1851-1857. 

Ilia.  Warehousemen.     §§  1858-1858f. 

IV.  Innkeepers.     §§  1859-1863. 
V.     Finding.     §§  1864-1872. 

ARTICLE  I. 

General  Provisions. 

§  1833.  Depositor  must  indemnify  depositary. 

§  1834.  Obligation  of  depositary  of  animals. 

§  1835.  Obligations  as  to  use  of  thing  deposited. 

§  1836.  Liability  for  damage  arising  from  wrongful  use. 

§  1837.  Sale  of  thing  in  danger  of  perishing. 

§  1838.  Injury  to,  or  loss  of  thing  deposited. 

§  1839.  Service  rendered  by  depositary. 

§  1840.  Liability  of  depositary. 

§  1833.    Depositor  must  indemnify  depositary.    A  depositor 

must  indemnify  the  depositary : 

1.  For  all  damage  caused  to  him  by  the  defects  or  vices  of 
the  thing  deposited ;  and, 

2.  For  all  expenses  necessarily  incurred  by  him  about  the 
thing,  other  than  such  as  are  involved  in  the  nature  of  the  un- 
dertaking. 

Lender's  liability  for  defects  in  articles  borrowed:  See  post,  §  1893. 
Legislation,  §  1833.     EnaetedMarch  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  919. 


559  DEPOSIT    FOR    KEEPING.      GENERAL   PROVISIONS.  §  1839 

§  1834.  Obligation  of  depositary  of  animals.  A  depositary 
of  living  animals  must  provide  them  with  suitable  food  and 
shelter,  and  treat  them  kindly. 

Lien  of  keepers  of  live-stock:  See  post,  §  3051. 

Legislation  §  1834.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  920. 

§  1835.  Obligations  as  to  use  of  thing-  deposited.  A  deposi- 
tary may  not  use  the  thing  deposited,  or  permit  it  to  be  used, 
for  any  purpose,  without  the  consent  of  the  depositor.  He 
may  not,  if  it  is  purposely  fastened  by  the  depositor,  open  it 
without  the  consent  of  the  latter,  except  in  case  of  necessity. 

Liability  for  wrongful  use:  See  post,  §  1836. 
Hiring.     Definition  of  term:  See  post,  §§  192.5  et  seq. 
Legislation  §  1835.     Enacted  Mareli  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  921. 

§  1836.     Liability  for  damage  arising-  from  wrongful  use. 

A  depositary  is  liable  for  any  damage  happening  to  the  thing 

deposited,  during  his  wrongful  use  thereof,  unless  such  damage 

must  inevitably  have  happened  though  the  property  had  not 

been  thus  used. 

Legislation  §  1836.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  922. 

§  1837.  Sale  of  thing-  in  danger  of  perishing-.  If  a  thing 
deposited  is  in  actual  danger  of  perishing  before  instructions 
can  be  obtained  from  the  depositor,  the  depositary  may  sell 
it  for  the  best  price  obtainable,  and  retain  the  proceeds  as  a 
deposit,  giving  immediate  notice  of  his  proceedings  to  the  de- 
positor. 

Sale  of  perishables:  See  post,  §  1857. 

Legislation  §  1837.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  923. 

§  1838.  Injury  to,  or  loss  of  thing-  deposited.  If  a  thing 
is  lost  or  injured  during  its  deposit,  and  the  depositary  refuses 
to  inform  the  depositor  of  the  circumstances  under  which  the 
loss  or  injury  occurred,  so  far  as  he  has  information  concern- 
ing them,  or  Avillfully  misrepresents  the  circumstances  to  him, 
the  depositary  is  presumed  to  have  willfully,  or  by  gross  neg- 
ligence, permitted  the  loss  or  injury  to  occur. 

Legislation  §  1838.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  y.  Civ.  Code,  §  924. 

§  1839.  Service  rendered  by  depositary.  So  far  as  any  ser- 
vice is  rendered  by  a  depositary,  or  required  from  him,  his 
duties  and  liabilities  are  prescribed  by  the  title  on  employment 
and  service. 

Employment  and  service:  See  post,  §§  1965  et  seq. 


§  1847  CIVIL  CODE.  560 

Legislation  §  1839.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  925. 

§  1840.  Liability  of  depositary.  The  liability  of  a  deposi- 
tary for  negligence  cannot  exceed  the  amount  which  he  is  in- 
formed by  the  depositor,  or  has  reason  to  suppose,  the  thing 
deposited  to  be  worth.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  244.] 

Legislation  §  1840.     1.  Enacted    March   21,   1872  '(based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  926),  and  then  read:    "The  liability  of  a  de- 
positary for  negligence  is  limited  to  the  amount  which  he  is  informed, 
or  has  reason  to  suppose,  the  thing  deposited  to  be  worth." 
2.  Amended  by  Code  Amdts.  1873-7i,  p.  244. 

AETICLE  n. 

Gratuitous  Deposit. 

§  1844.  Gratuitous  deposit,  what. 

§  1845.  Nature  of  involuntary  deposit. 

§  1846.  Degree  of  care  required  of  gratuitous  depositary. 

§  1847.  His  duties  cease,  when. 

§  1844.  Gratuitous  deposit,  what.  Gratuitous  deposit  is  a 
deposit  for  which  the  depositary  receives  no  consideration  be- 
yond the  mere  possession  of  the  thing  deposited. 

Degree  of  care  necessary:  See  post,  §  1846.  If  this  bailment  corre- 
spond to  the  mandatum  as  generally  understood,  requiring,  on  the  part 
of  the  bailee,  some  service  to  be  performed  with  respect  to  the  de- 
posit, then  §  1839,  supra,  and  §§  1975,  1976,  1977,  post,  must  be  read 
together  with  §  1846,  in  determining  the  degree  of  care  which  this 
bailee  must  use. 

Legislation  §  1844.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,    §  927. 

§  1845.     Nature  of  involuntary  deposit.     An  involuntary  de- 
posit is  gratuitous,  the  depositary  being  entitled  to  no  reward. 
Involuntary  deposit,  defined:  See  ante,  §  1815. 
Legislation  §  1845.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y'.  Civ.  Code,  §  928. 

§  1846.     Degree  of  care  required  of  gratuitous  depositary. 

A  gratuitous  depositary  must  use,  at  least,  slight  care  for  the 
preservation  of  the  thing  deposited. 

Degree  of  care  requisite:   See  ante,  §  1844  and  note. 
Legislation  §  1846.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  929. 

§  1847.  His  duties  cease,  when.  The  duties  of  a  gratuitous 
depositary  cease : 

1.  Upon  his  restoring  the  thing  deposited  to  its  owner ;  or, 

2.  Upon  his  giving  reasonable  notice  to  the  owner  to  remove 
it,  and  the  owner  failing  to  do  so  Avithin  a  reasonable  time. 
But  an  involuntary  depositary,  under  subdivision  two  of  sec- 


561  STORAGE. 


1855 


tion    eighteen    hundred  and  fifteen,  cannot  give  such  notice 
until  the  emergency  which  gave  rise  to  the  deposit  is  past. 

Legislation  §  18-17.     Enacted  March  2],  1872;  based  on  Field's  Draft, 
■     N.  Y.  Civ.  Code,  §  930. 

ARTICLE  III. 
Storage. 
§  1851.     Deposit  for  hire. 

§  1852.     Degree  of  care  required  of    depositary  for  hire. 
§  1853.     Rate  of  compensation  for  fraction  of  a  week,  etc. 
§  1854.     Termination   of  deposit. 
§  1855.     Same. 

§  1856.     Lien  for  storage  charges,  advances,  insurance,  and  expenses. 
§  1857.     Storage  property  to  be  sold. 

§  1851.  Deposit  for  hire.  A  deposit  not  gratuitous  is  called 
storage.  The  depositary  in  such  case  is  called  a  depositary  for 
hire. 

Warehousemen  and  wharfingers:   See  post,  §§  1858  et  seq. 
Hiring.     In  general:   See  post,  §  1925. 

Legislation  §  1851.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  931. 

§  1852.     Degree  of  care  required  of  depositary  for  hire.    A 

depositary  for  hire  must  vise  at  least  ordinary  care  for  the 
preservation  of  the  thing  deposited. 

Liability  of  innkeepers:   See  post,  §  1859. 
Common  carriers;  Post,  §§  2100,  2114,  2194. 
Liability  of  warehousemen:   See  post,  §§  2120,  2121. 
Legislation  §  1852.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  932. 

§  1853.     Rate  of  compensation  for  fraction  of  a  week,  etc. 

In  the  absence  of  a  different  agreement  or  usage,  a  depositary 
for  hire  is  entitled  to  one  week's  hire  for  the  sustenance  and 
shelter  of  living  animals  during  any  fraction  of  a  week,  and 
to  half  a  month's  hire  for  the  storage  of  any  other  property 
during  any  fraction  of  a  half-month. 

Warehouseman  making  advances  may  sell  property  when:  See  Pol. 
Code,  §  3156. 

Legislation  §  1853.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Codd,  §  933. 

§  1854.  Termination  of  deposit.  In  the  absence  of  an  agree- 
ment as  to  the  length  of  time  during  which  a  deposit  is  to  con- 
tinue, it  may  be  terminated  by  the  depositor  at  any  time,  and 
by  the  depositary  upon  reasonable  notice. 

Legislation  §  1854.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  934. 

§  1855.  Same.  Notwithstanding  an  agi-ecment  respecting 
the  length  of  time  during  which  a  deposit  is  to  continue,  it 

Civ.  Code— 36 


§  1857  cn^iL  CODE.  562 

may  be  terminated  by  the  depositor  on  paying  all  that  would 
become  due  to  the  depositary  in  case  of  the  deposit  so  con- 
tinuing. 

Legislation  §  1855.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  935. 

§  1856.  Lien  for  storage  charges,  advances,  insurance,  and 
expenses.  A  depositary  for  hire  has  a  lien  for  storage  charges 
and  for  advances  and  insurance  incurred  at  the  request  of  the 
bailor,  and  for  money  necessarily  expended  in  and  about  the 
eare,  preservation  and  keeping  of  the  property  stored,  and 
he  also  has  a  lien  for  money  advanced  at  the  request  of  the 
bailor,  to  discharge  a  prior  lien,  and  for  the  expenses  of  a  sale 
where  default  has  been  made  in  satisfying  a  valid  lien.  The 
rights  of  the  depositary  for  hire  to  such  lien  are  regulated 
by  the  title  on  liens.  [Amendment  approved  1909 ;  Stats. 
1909,  p.  1001.] 

Legislation  §  1856.     1.  Added   by    Stats.  1891,  p.  470.  and  then  read: 

"A  depositary  for  hire  has  a  lien  for  storage  charges,  which  is  regulated 

by  the  title  on  liens." 

2.  Amended  by  Stats.  1909,  p.  1001. 

§  1857.  Storage  property  to  be  sold.  If  from  any  cause 
other  than  want  of  ordinary  care  and  diligence  on  his  part, 
a  depositary  for  hire  is  unable  to  deliver  perishable  property, 
baggage,  or  luggage  received  by  him  for  storage,  or  to  collect 
his  charges  for  storage  due  thereon,  he  may  cause  such  prop- 
erty to  be  sold,  in  open  market,  to  satisfy  his  lien  for  storage ; 
provided,  that  no  property  except  perishable  property  shall 
be  sold,  under  the  provisions  of  this  section,  upon  which  stor- 
age charges  shall  not  be  due  and  unpaid  for  one  year  at  the 
time  of  such  sale. 

Sale  of  perishables:  See  ante,  §  1837. 

Legislation  §  1857.     Added  by  Stats.  1891,  p.  470. 

ARTICLE  Ilia. 
Warehousemen. 

§  1858.     Warehouse-receipts,  when  must  not  be  issued. 

§  1858a.  Property  not  to  be  removed  without  consent  in  writing. 

§  1858b.  Warehouse-receipts,  classification  and  effect  of. 

§  1858c.  Indorsement  on  negotiable  receipt  of  property  delivered. 

§  1858d.  Non-negotiable  receipts  and  their  effect. 

§  1858e.  Liability  for  loss  by  fire. 

§  185Sf.  Penalties  and  liabilities. 

Legislation  Article  Ilia.  Added  by  Stats.  1905,  p.  611,  the  title  of 
the  act  reading,  "An  Act  to  add  an  Article  Ilia  to  Chapter  II  of  Title 
III  of  Part  IV  of  Division  Third  of  the  Civil  Code,  relating  to  ware- 
housemen." The  article  heading,  through  a  clerical  or  t\-pographical 
error,  is  printed   "Chapter  llla,"  which  is   not  followed  in  this  code. 


563  WAREHOUSEMEN.  §  1858b 

In  Ms  note  to  §§  1858-1858f,  the  sections  composing  the  new  article, 
the  code  commissioner  says,  "The'  statute  of  1877-78,  p.  949,  relating 
to  warehousemen's  and  wharfingers'  receipts,  is  codified  in  the  above 
sections."  Unconstitutional  additions  were  made  in  1901  of  sections 
of  the  same  numbers,  and  in  the  identical  language  of  the  present  sec- 
tions, with  only  one  exception,  namely,  §  1858a  not  having  the  word 
"immediate"  in  the'  words  "beyond  his  immediate  control."  See  post, 
tit.  "Legislation,"  under  the  respective  sections  constituting  the  article. 

§  1858.  Warehouse-receipts,  when  must  not  be  issued.  A 
warehouseman,  wharfinger,  or  other  person  doing  a  storage 
business  must  not  issue  any  receipt  or  voucher  for  any  mer- 
chandise, grain,  or  other  product  or  thing  of  value,  to  any 
person  purporting  to  be  the  owner  thereof,  nor  to  any  person 
as  security  for  any  indebtedness  or  for  the  performance  of 
any  obligation,  unless  such  merchandise,  grain,  or  other 
product,  commodity,  or  thing  has  been,  in  good  faith,  received 
by  such  warehouseman,  Avharfinger,  or  other  person,  and  is 
in  his  store  or  under  his  control  at  the  time  of  issuing  his  re- 
ceipt ;  nor  must  any  second  receipt  for  any  such  property  be 
issued  while  a  former  receipt  for  any  part  thereof  is  outstand- 
ing and  uncanceled. 

Act  of  1905  relating  to  warehouse  receipts:  See  General  Laws,  Act 
4319. 

Act  of  1909  making  uniform  the  law  of  warehouse  receipts:  See  Gen- 
eral Laws,  Act  4320. 

Legislation  §  1858.  1.  Addition  by  Stats.  1901,  p.  409;  unconstitu- 
tional.   See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  612.     See  ante.  Legislation,  Article  Ilia. 

§  1858a.  Property  not  to  be  removed  without  consent  in 
writing.  .  No  warehouseman,  wharfinger,  or  other  person  must 
sell  or  encumber,  ship,  transfer,  or  remove  beyond  his  imme- 
diate control  any  property  for  which  a  receipt  has  been  given, 
without  the  consent  in  writing  of  the  person  holding  such  re- 
ceipt plainly  indorsed  thereon  in  ink. 

Legislation  §  1858a.  1.  Addition  by  Stats.  1901,  p.  410;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  612.     See  ante.  Legislation  Article  Ilia. 

§  1858b.     Warehouse-receipts,    classification   and   effect   of. 

Warehouse-receipts  for  property  stored  are  of  two  classes : 
first,  transferable  or  negotiable ;  and  second,  non-transferable 
or  non-negotiable.  Under  the  first  of  these  classes  the  prop- 
erty is  transferable  by  indorsement  of  the  party  to  whose  order 
such  receipt  M-as  issued,  and  such  indorsement  is  a  valid  trans- 
fer of  the  property  represented  by  the  receipt,  and  may  be 
in  blank  or  to  the  order  of  another.  All  warehouse-receipts 
must  distinctly  state  on  their  face  for  what  they  are  issued 
and  its  brands  and  distinguishing  marks  and  the  rate  of  stor- 


§  1858f  CIVIL  CODE.  564 

age  per  month  or  season,  and,  in  the  case  of  grain,  the  kind, 
the  number  of  sacks,  and  pounds.  If  a  receipt  is  not  negotia- 
ble, it  must  have  printed  across  its  face,  in  red  ink,  in  bold, 
distinct  letters,  the  word  "non-negotiable." 

Legislation  §  18581).  1.  Addition  by  Stats.  1901,  p.  410  j  unconstitu- 
tional.   See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  612.     See  ante,  Legislation  Article  Ilia. 

§  1858c.  Indorsement  on  negotiable  receipt  of  property  de- 
livered. If  a  negotiable  receipt  is  issued  for  any  property, 
neither  the  person  issuing  it  nor  any  other  person  into  whose 
care  or  control  the  property  comes  must  deliver  any  part 
thereof  without  indorsing  on  the  back  of  the  receipt,  in  ink, 
the  amount  and  date  of  the  delivery ;  nor  can  he  be  allowed 
to  make  any  offset,  claim,  or  demand  other  than  is  expressed 
on  the  face  of  the  receipt,  Avhen  called  upon  to  deliver  any 
property  for  Avhich  it  was  issued. 

Legislation  §  1858c.  1.  Addition  by  Stats.  1901,  p.  410;  unconstitu- 
tional.   See  note*,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  G12.     See  ante,  Legislation  Article  Ilia. 

§  1858d.  Non-negotiable  receipts  and  their  effect.  If  a  non- 
negotiable  receipt  is  issued  for  any  property,  neither  the  per- 
son issuing  nor  any  other  person  in  whose  care  or  control  the 
property  comes  must  deliver  any  part  thereof,  except  upon 
the  written  order  of  the  person  to  whom  the  receipt  was  issued. 
Legislation  §  I858cl.  1.  Addition  by  Stats.  1901,  p.  410;  unconstitu- 
tional.   See  note*,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  612.     See  ante.  Legislation  Article  Ilia. 

§  1858e.  Liability  for  loss  by  fire.  No  warehouseman  or 
other  person  doing  a  general  storage  business  is  responsible 
for  any  loss  or  damage  to  property  by  fire  while  in  his  custody, 
if  he  exercises  reasonable  care  and  diligence  for  its  protection 
and  preservation. 

Legislation  §  1858e.  1.  Addition  by  Stats.  1901,  p.  411;  unconstitu- 
tional.    See  note",  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  613.     See  ante,  Legislation  Article  Ilia. 

§  1858f .  Penalties  and  liabilities.  Every  warehouseman, 
wharfinger,  or  other  person  Avho  violates  any  of  the  provisions 
of  sections  eighteen  hundred  and  fifty-eight  to  eighteen  hun- 
dred and  fifty-eight  e,  inclusive,  is  guilty  of  a  felony,  and, 
upon  conviction  thereof,  may  be  fined  in  a  sum  not  exceeding 
five  thousand  dollars,  or  imprisoned  in  the  state  prison  not 
exceeding  five  years,  or  both.  He  is  also  liable  to  any  person 
aggrieved  by  such  violation  for  all  damages,  immediate  or 
consequent,  which  he  may  have  sustained  therefrom,  which 
damages  may  be  recovered  by  a  civil  action  in  any  court  of 


1859.  Innkeeper's  Liability.  The  liability  of  an  innkeeper, 
hotel  keeper,  boarding  and  lodging  house  keeper,  for  losses  of  or 
injuries  to  personal  property,  other  than  money  placed  by  his 
gruests,  boarders,  or  lodgers  under  his  care,  is  that  of  a  deposi- 
tary for  hire;  provided,  however,  that  in  no  case  shall  such 
liability  exceed  the  sum  of  one  hundred  dollars  for  each  trunk 
and  its  contents,  fifty  dollars  for  each  valise  or  traveling  bag 
and  contents,  and  ten  dollars  for  each  box,  bundle,  or  package 
and  contents  so  placed  under  his  care,  [and  all  other  miscella- 
neous effects  including  wearing  apparel  and  personal  belongings, 
two  hundred  fifty  dollars;]  unless  he  shall  have  consented  in 
writing  with  the  owner  thereof  to  assume  a  greater  liability. 

[Sec.  2.  All  other  acts  in  conflict  with  this  act  are  hereby 
repealed.]  (In  effect  90  days  from  and  after  April  29,  1921. 
Stats.    1921,   Chap.   151.)  Civ,   Code,  1921. 


I860      HOW   Exempted    From   Liability.    If  an  innkeeper    hotel 
personally    or    by    putting    up    a    prmted    "°;ice    m    a    pio 

iiiiiiiiii 

Se°    un'L:  he  ZnZ.  ..ve/a  ,ece,p.  m  .H.in.  *er,fo.  to 

„pt"ed  ,     (.n    e«ec.    ,0    days    from    and    arter    Ap„.^  »^_  .»|^ 

.Stats.    1921,    Chap.    150.) 


I 


565  INNKEEPERS.  §  I860 

competent  jurisdiction,   whether  the   offender  has   been   con- 
victed or  not. 

Legislation  §  1858f.  1.  Addition  by  Stats.  1901,  p.  411;  unconstitu- 
tional.   See  notd,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  613.     See  ante,  Legislation  Article  Ilia. 

ARTICLE  IV. 
Innkeepers. 

§  18.59.     Innkeeper's  liability. 
§  1860.     How  exempted  from  liability. 

§  1861.     Hotels  have  lien  on  baggage  of  guests.     May  sell  baggage.     Resi- 
due.    Baggage  not  belonging  to  guest. 
§  1862.     Unclaimed  baggage  may  be  sold  at  auction.     Notice. 
§  1863.     Keeker  to  post  rates  of  charges 

§  1859.  Innkeeper's  liability.  The  liability  of  an  innkeeper, 
hotel-keeper,  boarding  and  lodging-house  keeper,  for  losses  of  or 
injuries  to  personal  property,  other  than  money,  placed  by  his 
guests,  boarders,  or  lodgers  under  his  care,  is  that  of  a  depositary 
for  hire ;  provided,  however,  that  in  no  case  shall  such  liability 
exceed  the  sum  of  one  hundred  dollars  for  each  trunk  and  its 
contents,  fifty  dollars  for  each  valise  or  traveling-bag  and  con- 
tents, and  ten  dollars  for  each  box,  bundle,  or  package  and 
contents,  so  placed  under  his  care,  unless  he  shall  have  con- 
sented in  writing  w4th  the  owner  thereof  to  assume  a  greater 
liability.      [Amendment  approved  1895;  Stats.  1895,  p.  49.] 

How  exempted  from  liability:  See  post,  §  1860. 

Refusing  to  receive  and  entertain  guests  a  misdemeanor:  Pen.  Code, 
§365. 

Cubic  air  law:   See  Pen.  Code,  §  401a. 

Legislation  §  1859.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  936),  and  then  read:  "An  innkeeper  is  liable 
for  all  losses  of  or  injuries  to  personal  property  placed  by  his  guests 
under  his  care,  unless  occasioned  by  an  irresistible  superhuman  cause, 
by  a  public  enemy,  by  the'  negligence  of  the  owner,  or  by  the  act  of 
some  one  whom  he  brought  into  the  inn." 

2.  Amended  by  Stats.  1895,  p.  49. 

§  1860.  How  exempted  from  liability.  If  an  innkeeper,  [  4  9^ 
hotel-keeper,  boarding-house  or  lodging-house  keeper,  keeps 
a  fireproof  safe,  and  gives  notice  to  a  guest,  boarder,  or  lodger, 
either  personally  or  by  putting  up  a  printed  notice  in  a  promi- 
nent place  in  the  office  or  the  room  occupied  by  the  guest, 
boarder,  or  lodger,  that  he  keeps  such  a  safe  and  will  not  be 
liable  for  money,  jewelry,  documents,  or  other  articles  of  un- 
usual value  and  small  compass,  unless  placed  therein,  he  is  not 
liable,  except  so  far  as  his  own  acts  shall  contribute  thereto, 
for  any  loss  of  or  injury  to  such  articles,  if  not  deposited  with 
him  to  be  placed  therein,  nor  in  any  case  for  more  than  the  sum 
of  two  hundred  and  fifty  dollars  for  any  or  all  such  property 
of  any  individual  guest,  boarder,  or  lodger,  unless  he  shall 


,  §  1861  CIVIL  CODE.  566 

have  given  a  receipt  in  writing  therefor  to  such  guest,  boarder, 
or 'lodger.  [Amendment  approved  1895;  Stats.  1895,  p.  50.] 
Legislation  §  1860.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft.  X.  Y.  Civ.  Code,  §  937),  and  then  read:  "If  an  innkeeper  keeps 
a  fireproof  safe,  and  gives  notice  to  a  guest,  either  personally  or  by- 
putting  np  a  printed  notice  in  a  prominent  place  in  the  room  occupied 
by  the  guest,  that  he  keeps  such  a  safe,  and  will  not  be  liable  for 
money,  jewelry,  documents,  or  other  articles  of  unusual  value  and 
small  compass,  unless  placed  therein,  he  is  not  liable,  except  so  far  as 
his  own  acts  contribute  thereto,  for  any  loss  of  or  injury  to  such  ar- 
ticles, if  not  deposited  with  him,  and  not  required  by  the  guest  for 
present  use." 

2.  Amended  by  Stats.  1895,  p.  .50. 

§  1861.     Hotels  have  lien  on  baggage  of  guests.    May  sell 
bagguge.     Residue.     Baggage  not  belonging  to  guest.    Hotel, 
inn,  boarding-house  and  lodging-house  keepers  shall  have  a 
lien  upon  the  baggage  and  other  property  belonging  to  or 
legally  under  the  control  of  their  guests,  or  boarders,  or  lodg- 
ers "which  may  be  in  such  hotel,  inn,  or  boarding  or  lodging- 
house    for    the    proper    charges    due    from    such    guests,    or 
boarders,  or  lodgers,  for  their  accommodation,  board  and  lodg- 
ing and  room  rent,  and  such  extras  as  are  furnished  at  their 
request,  and  for  all  money  paid  for  or  advanced  to  such  guests, 
or  boarders  or  lodgers,  and  for  the  costs  of  enforcing  such 
lien,  with  the  right  to  the  possession  of  such  baggage  and  other 
property  until  such  charges  and  moneys  are  paid ;  and  unless 
such  charges  and  moneys  shall  be  paid  within  sixty  days  from 
the  time  when  the  same  become  due,  said  hotel,  inn,  boarding- 
house   or   lodging-house   keeper  may  sell  said  baggage   and 
property  at  public  auction  to  the  highest  bidder,  after  giving 
notice  of  such  sale  by  publication  of  a  notice  containing  the 
name  of  the  debtor,  the  amount  due,  a  brief  description  of  the 
property  to  be  sold,  and  the  time  and  place  of  such  sale,  once 
every  week  for  four  successive  Aveeks  prior  to  the  day  of  sale, 
in  a  newspaper  of  general  circulation  in  the  county  in  which 
said  hotel,  inn,  boarding-house  or  lodging-house  is  situated  and 
also  by  mailing,  at  least  fifteen  (15)  days  before  such  sale,  a 
copy  of  such  notice  addressed  to  such  guest,  boarder  or  lodger 
at  his  post  office  address,  if  known,  and  if  not  known,  such 
notice  shall  be  addressed  to  such  guest,  boarder  or  lodger  at 
the  place  Avhere  such  hotel,  inn,  boarding-house  or  lodging- 
house  is  situated :  and  after  satisfying  such  lien  out  of  the  pro- 
ceeds of  such  sale  together  with  any  reasonable  costs  that  may 
have  been  incurred  in  enforcing  said  lien,  the  residue  of  said 
proceds  of  sale,  if  any,  shall  upon  demand  made  within  six 
months  after  such  sale,  be  paid  by  said  hotel,  inn,  boarding- 
house,    or   lodging-house    keeper   to   such    guest,   boarder    or  ' 
lodger;  and  if  not  demanded  within  six  months  from  the  date 


1861a.  [New.]  Liens  of  Keepers  of  Furnished  Apartment 
Houses.  Keepers  of  furnished  apartment  houses  shall  have  a 
lien  upon  the  baggage  and  other  property  of  value  belonging  to 
their  tenants  or  guests,  which  may  be  in  such  furnished  apart- 
ment house,  for  the  proper  charges  due  from  such  tenants  or 
guests,  for  their  accommodation,  rent,  services,  meals,  and  such 
extras  as  are  furnished  at  their  request,  and  for  all  moneys 
expended  for  them,  at  their  request,  and  for  the  costs  of  enforc- 
ing such  lien,  with  the  right  to  the  possession  of  siuch  baggage 
and  other  property  of  value  until  such  charges  are  paid,  and 
such  moneys  are  repaid;  and  unless  such  charges  shall  be  paid 
and  unless  such  moneys  shall  be  repaid  within  sixty  days  from 
the  time  when  such  charges  and  moneys,  respectively,  become 
due,  said  keeper  of  a  furnished  apartment  house  may  sell  said 
baggage  and  property,  at  public  auction  to  the  highest  bidder, 
after  giving  notice  of  such  sale  by  publication  of  a  notice  con- 
taining the  name  of  the  debtor,  the  amount  due,  a  brief  descrip- 
tion of  the  property  to  be  sold,  and  the  time  and  place  of  such 
sale,  once  every  week,  for  four  successive  weeks,  prior  to  the 
date  of  sale,  in  a  newspaper  of  general  circulation  in  the  county 
in  which  said  furnished  apartment  house  is  situated,  and  also  by 
mailing,  at  least  fifteen  days  prior  to  the  date  of  sale,  a  copy  of 
such  notice  addressed  to  such  tenant  or  guest  at  his  post-office 
address,  if  known,  and  if  not  known,  such  notice  shall  be  ad- 
dressed to  such  tenant  or  guest  at  the  place  where  such  furriished 
apartment  house  is  situated;  and,  after  satisfying  such  lien  out 
of  the  proceeds  of  &uch  sale,  together  with  any  reasonable  costs 
that  may  have  been  incurred  in  enforcing  said  lien,  the  residue 
of  said  proceeds  of  sale,  if  any,  shall,  upon  demand  made  within 
six  months  after  such  sale,  be  paid  by  said  keeper  of  a  furnished 
apartment  house  to  such  tenant  or  guest;  and  if  not  demanded 
within  six  months  from  the  date  of  such  sale,  said  residue,  if 
any,  .shall  be  paid  into  the  treasury  of  the  county  in  which  such 
sale  took  place;  and  if  the  same  be  not  claimed  by  the  owner 
thereof,  or  his  legal  representative,  within  one  year  thereafter, 
it  shall  be  paid  into  the  general  fund  of  the  county;  and  such 
sale  shall  be  a  perpetual  bar  to  any  action  against  said  keeper 
of  a  furnished  apartment  house  for  the  recovery  of  such  baggage 
or  property,  or  of  the  \-alue  thereof,  or  for  any  damages  growing 
out  of  the  failure  of  such  tenant  or  guest  to  receive  such  bag- 
gage or  property.  (In  effect  00  days  from  and  after  April  27, 
.1917.     Stats.    1917,   Chap.    794.)  Civ.    Code,    1917. 


567  INNKEEPERS.  §  1862 

of  such  sale,  such  residue  shall  be  paid  into  the  treasury  of  the 
county  in  which  such  sale  took  place ;  and  if  the  same  be  not 
claimed  by  the  owner  thereof,  or  his  legal  representatives, 
within  one  year  thereafter,  the  same  shall  be  paid  into  the  gen- 
eral fund  of  said  county ;  and  such  sale  shall  be  a  perpetual 
bar  to  any  action  against  said  hotel,  inn,  boarding-house  or 
lodging-house  keeper  for  the  recovery  of  such  baggage  or  prop- 
erty or  of  the  value  thereof,  or  for  any  damages  growing  out 
of  the  failure  of  such  guest,  boarder  or  lodger  to  receive  such 
baggage  or  property;  provided,  however,  that  if  any  baggage 
or  property  becoming  subject  to  the  lien  herein  provided  for 
does  not  belong  to  the  guest,  lodger  or  boarder  who  incurred 
the  charges  or  indebtedness  secured  thereby,  at  the  time  when 
such  charges  or  indebtedness  Avas  incurred,  and  if  the  hotel, 
inn,  boarding  or  lodging-house  keeper  entitled  to  such  lien 
receives  notice  of  such  fact  at  any  time  before  the  sale  of  such 
baggage  or  property  hereunder,  then,  and  in  that  event,  such 
baggage  and  property  which  is  subject  to  said  lien  and  did  not 
belong  to  said  guest,  boarder  or  lodger  at  the  time  when  such 
charges  or  indebtedness  was  incurred  shall  not  be  subject  to 
sale  in  the  manner  hereinbefore  provided,  but  such  baggage 
and  property  may  be  sold  in  the  manner  provided  by  the  Code 
of  Civil  Procedure  for  the  sale  of  property  under  a  want  of 
execution,  to  satisfy  a  judgment  obtained  in  any  action 
brought  to  recover  the  said  charges  or  indebtedness.  [Amend- 
ment approved  1915;  Stats.  1915,  p.  1285.] 

OTjtaining  accoiiimodations  with  intent  to  defraud:  See  Pen.  Code, 
§  537. 

Legislation  §  1861.  1.  Added  by  Code  Amendments  1875-76,  p.  78 
and  then  read:  "Hotel,  inn,  boarding-house  and  lodging-house  keepers 
shall  have  a  lien  upon  the  baggage  and  other  prope'rty  of  value 
of  their  guests,  or  boarders,  or  lodgers,  brought  into  such  hotel,  inn, 
or  boarding  or  lodging-house,  by  such  guests,  or  boarders,  or  lodgers, 
for  the  proper  charges  due  from  such  guests,  or  boarders,  or  lodgers, 
for  their  accommodation,  board  and  lodging,  and  room  rent,  [and} 
such  extras  as  are  furnished  at  their  request,  with  the  right  to  the 
possession  of  such  baggage  or  other  property  of  value,  until  all  such 
charges  are  paid." 

2.  Amended  by  Stats.  1915,  p.  1285. 

§  1862.     Unclaimed  bag-gage  may  be  sold  at  auction.     Notice. 

Whenevci-  any  trunk,  carpet-l)ag,  valise,  box,  bundle,  or  other 
baggage  has  heretofore  come,  or  shall  hereafter  come  into  the 
possession  of  the  keeper  of  any  hotel,  inn,  boarding  or  lodging- 
house,  as  such,  and  has  remained  or  shall  remain  unclaimed 
for  the  period  of  six  months,  such  keeper  may  proceed  to  sell 
the  same  at  public  auction,  and  out  of  the  proceeds  of  such 
sale  may  retain  the  charges  for  storage,  if  any,  and  the  ex- 
penses of  advertising  and  sale  thereof;  but  no  such  sale  shall 


§  1863  .        CIVIL  CODE.  568 

be  made  until  the  expiration  of  four  Aveeks  from  the  first  publi- 
cation of  notice  of  such  sale  in  a  newspaper  published  in  or 
nearest  the  city,  town,  village,  or  place  in  which  said  hotel, 
inn,  boarding  or  lodging-house  is  situated.  Said  notice  shall 
be  published  once  a  week,  for  four  successive  weeks,  in  some 
newspaper,  daily  or  weekly,  of  general  circulation,  and  shall 
contain  a  description  of  each  trunk,  carpet-bag,  valise,  box, 
bundle,  or  other  baggage,  as  near  as  may  be;  the  name  of  the 
owner,  if  known;  tbe  name  of  such  keeper,  and  the  time  and 
place  of  sale;  and  the  expenses  incurred  for  advertising  shall 
be  a  lien  upon  such  trunk,  carpet-bag,  valise,  box,  bundle,  or 
other  baggage,  in  a  ratable  proportion,  according  to  the  value 
of  such  piece  of  property,  or  thing,  or  article  sold ;  and  in  case 
any  balance  arising  from  such  sale  shall  not  be  claimed  by  the 
rightful  owner  within  one  Aveek  from  the  day  of  said  sale, 
the  same  shall  be  paid  into  the  treasury  of  the  county  in  which 
such  sale  took  place ;  and  if  the  same  be  not  claimed  by  the 
owner  thereof,  or  his  legal  representatives,  within  one  year 
thereafter,  the  same  shall  be  paid  into  the  general  fund  of 
said  county. 

Legislation  §  1862.     Added  by  Code  Amdts.  1875-76,  p.  78. 

§  1863.  Keeper  to  post  rates  of  charges.  Every  keeper  of 
a  hotel,  inn,  boarding  or  lodging-house,  shall  post  in  [a}  con- 
spicuous place  in  the  officj?  or  public  room,  and  in  ever}"-  bed- 
room of  said  hotel,  boarding-house,  inn,  or  lodging-house,  a 
printed  copy  of  this  section,  and  a  statement  of  charge  or  rate 
of  charges  by  the  day,  and  for  meals  or  items  furnished,  and 
for  lodging.  No  charge  or  sum  shall  be  collected  or  received 
by  any  such  person  for  any  service  not  actually  rendered,  or 
for  any  item  not  actually  delivered,  or  for  any  greater  or  other 
sum  than  he  is  entitled  to  by  the  general  rules  and  regulations 
of  said  hotel,  inn,  boarding  or  lodging-house.  For  any  viola- 
tion of  this  section,  or  any  provision  herein  contained,  the  of- 
fender shall  forfeit  to  the  injured  party  three  times  the  amount 
of  the  sum  charged  in  excess  of  what  he  is  entitled  to. 
Legislation  §  1863.  1.  Added  by  Code  Amdts.  1875-76,  p.  79. 
2.   Ameudment  by  Stats.  1901,  p.  411;  Lineoiistitntional.    See  note,  §  4, 

ante. 


569  FINDING  OF  PROPERTY.  §  18G5 

ARTICLE  V. 

Finding. 

§  1864.  Obligation  of  finder. 

§  1865.  Finder  of  goods  or  money,  or  saving  animals,  duty  of. 

§  1866.  Claimant  to  prove  ownership. 

§  1867.  Reward,  etc.,  to  finder. 

§  1868.  Finder  may  put  thing  found  on  storage. 

§  1869.  When  finder  may  sell  the  thing  found. 

§  1870.  How  sale  is  to  be  made. 

§  1871.  Property  vests  in  finder,  when;  liability  of  finder  to  owner. 

§  1872.  Thing  abandoned. 

§  1864.  Oblig-ation  of  finder.  One  who  finds  a  thing  lost  is 
not  bound  to  take  charge  of  it,  but  if  he  does  so  he  is  thence- 
forward a  depositary  for  the  owner,  with  the  rights  and  obliga- 
tions of  a  depositary  for  hire. 

Iiost  money  and  goods:  See  Pol.  Code,  §§  3136-3142. 
Depositary  for  hire:  See  ante,  §§1851  et  seq. 

Legislation  §  1864.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  938. 

§  1865.    Finder  of  goods  or  money,  or  saving'  animals,  duty  of. 

If  the  finder  of  a  thing,  other  than  a  domestic  animal,  takes 
possession  thereof,  or  if  a  person  saves  any  such  animal  from 
drowning  or  starvation,  he  must,  within  a  reasonable  time, 
inform  the  owner  thereof,  if  known,  and  make  restitution  to 
him  upon  demand,  without  compensation,  except  a  reason- 
able charge  for  saving  and  caring  therefor.  If  the  owner  is 
not  knoAvn  to  such  finder  or  saver,  he  must,  within  five  days, 
file  an  affidavit  Avith  the  justice  of  the  peace  of  the  county 
whose  office  is  nearest  to  the  place  of  such  finding  or  saving, 
particularly  describing  the  property  and  the  time,  place,  and 
circumstances  under  which  it  was  found  or  saved.  Such  jus- 
tice must  then  summon  three  disinterested  persons  to  ap- 
praise the  property.  They,  or  a  majority  of  them,  must 
make  two  lists  of  the  valuation  and  description  of  the  property, 
by  them  verified,  and  deliver  one  of  such  lists  to  the  justice 
of  the  peace,  to  be  kept  by  him  on  file  in  his  office,  and  the 
other  list  must  be  delivered  to  such  finder  or  saver,  who  must, 
within  five  days  thereafter,  cause  it  to  be  filed  for  record  in 
the  office  of  the  county  recorder  of  the  county,  who  must  record 
it  in  a  book  known  as  the  "Estray  and  Lost  Property  Book." 
[Amendment  approved  1905 ;  Stats.  1905,  p.  613.] 

Duty  of  finder.  Penalty.  If  owner  is  not  known  finder  must  report 
to  justice  of  the  peace  and  advertise.  If  he  fails  to  do  so  he  forfeits; 
double  tlie  value  thereof  to  the  owner:   Pol.  Code,  §§  3136-3142. 

Finder,  when  guilty  of  larceny:  See  Pen.  Code,  §  485. 

Legislation  §  1865.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  939),  and  then  read:    "If  the  finder  of  a  thing 


§  1870  CIVIL  CODE.  570 

knows  or  suspects  who  is  the  owner,  he  must,  with  reasonable  dili- 
gence, give  him  notice  of  the  finding;  and  if  he  fails  to  do  so,  he  is 
liable  in  damages  to  the  owner,  and  has  no  claim  to  any  reward  offered 
by  him  for  the  recovery  of  the  thing,  or  to  any  compensation  for  his 
trouble  or  expenses." 

2.  Amendment  by  Stats.  1901,  p.  411;  unconstitutional.  See'  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  613;  the  code  commissioner  saying, 
"The  section  is  amended  to  incorporate  therein  the  provisions,  upon 
the  same'  subject,  of  §§  3136,  3137,  and  3138  of  the  Political  Code." 

§  1866.  Claimant  to  prove  ownership.  The  finder  of  a  thing- 
may,  in  good  faith,  before  giving  it  up,  require  reasonable 
proof  of  ownership  from  any  person  claiming  it. 

Legislation  §  1866.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  940. 

§  1867,  Reward,  etc.,  to  finder.  The  finder  of  a  thing  is  en- 
titled to  compensation  for  all  expenses  necessarily  incurred 
by  him  in  its  preservation,  and  for  any  other  service  neces- 
sarily performed  by  him  about  it,  and  to  a  reasonable  rev/ard 
for  keeping  it. 

Legislation  §  1867.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  941. 

§  1868.  Finder  may  put  thing  found  on  storage.  The  finder 
of  a  thing  may  exonerate  himself  from  liability  at  any  time 
by  placing  it  on  storage  with  any  responsible  person  of  good 

character,  at  a  reasonable  expense. 

Legislation  §  1868.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  942. 

§  1869,  When  finder  may  sell  the  thing  found.  The  finder 
of  a  thing  may  sell  it,  if  it  is  a  thing  which  is  commonly  the 
subject  of  sale,  Avhen  the  owner  cannot,  ■\Yith  reasonable  dili- 
gence, be  found,  or,  being  found,  refuses  upon  demand  to  pay 
the  lawful  charges  of  the  finder,  in  the  following  cases : 

1.  When  the  thing  is  in  danger  of  perishing,  or  of  losing 
the  greater  part  of  its  value ;  or, 

2.  When  the  lawful  charges  of  the  finder  amount  to  two 
thirds  of  its  value. 

Lost  money  and  goods:  See  Pol.  Code,  §§  3136-3142. 
Legislation  §  1869.     Enacted  March  21,  1872,  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  943. 

§  1870.  How  sale  is  to  be  made.  A  sale  under  the  provi- 
sions of  the  last  section  must  be  made  in  the  same  manner  as 
the  sale  of  a  thing  pledged. 

Sale  of  pledge:  See  post,  §§  3000  et  seq. 

Legislation  §  1870.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  944. 


571       ^  DEPOSIT   FOR  EXCHANGE.  §  1878 

§  1871.  Property  vests  in  finder,  when;  liability  of  finder  to 
owner.  If  no  owner  appeai-s  within  six  months  after  such  find- 
ing or  saving  and  offers  reasonable  proof  of  his  ownership,  and 
compensates,  or  in  good  faith  oifers  to  compensate,  the  finder 
or  saver  for  the  expense  necessarily  incurred  by  him,  then 
such  property  vests  in  such  finder  or  saver,  unless  it  is  of 
greater  value  than  twenty  dollars.  If  of  such  greater  value, 
he  must  publish  a  copy  of  such  verified  list  for  three  successive 
weeks  in  some  newspaper  of  general  circulation  published  in 
the  county,  and  if  the  owner  does  not,  within  one  year  after 
the  completion  of  such  publication,  prove  the  property  and 
pay,  or  in  good  faith  offer  to  pay,  all  charges  thereon,  the  title 
thereto  vests  in  such  finder  or  saver.  If  the  finder  or  saver  of 
property  does  not  comply  Avitli  the  provisions  of  section 
eighteen  hundred  and  sixty-five,  or  if,  though  he  does  so  com- 
ply, he  refuses  to  surrender  the  property  to  an  owner  who  has 
made  reasonable  proof  of  ownership,  and  paid,  or  in  good 
faith  offered  to  pay,  all  legal  charges  thereon,  he  is  liable  to 
the  owner  for  double  the  value  of  the  property,  and  the  owner 
may  exonerate  himself  from  all  liability  arising  out  of  such 
property  by  surrendering,  or  offering  to  surrender,  it  in  sat- 
isfaction thereof.  [Amendment  approved  1905 ;  Stats.  1905, 
p.  614.] 

Legislation  §  1871.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  945),  and  then  read:  "The  owner  of  a  thing 
found  may  exonerate  himself  from  the  claims  of  the  finder  by  surren- 
dering it  to  him  in  satisfaction  thereof."  The  code  commissioners  say: 
"This  provision  cannot  be  supported  by  the  citation  of  any  positive 
authority,  but  seems  proper,  in  order  to  prevent  owners  from  being 
made  responsible  for  excessive  expenses:" 

2.  Amendment  by  Stats.  1901,  p.  412;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  614;  the  code  commissioner  saying, 
"The  section  is  amended  to  incorporate  therein  the  provisions  of 
§§  3139,  3140,  and  3141  of  the  Political  Code." 

§  1872.  Thing  abandoned.  The  provisions  of  this  article 
have  no  application  to  things  which  have  been  intentionally 
abandoned  by  their  owners. 

Legislation  §  1872.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  946. 

CHAPTER  III. 
Deposit  for  Exchange. 

§  1878.     Eelations  of  the  parties. 

§  1878.     Relations  of  the  parties.     A  deposit  for  exchange 

transfers  to  the  depositary  the  title  to  the  thing  deposited,  and 
creates  between  him  and  the  depositor  the  relation  of  debtor 
and  creditor  merely. 


§  188.  crv'iL  CODE.  572 

Deposit  for  exchange,  defined:  Ante,  §  1818. 
Loan  for  exchange:   See  post,  §  1902. 

Legislation  §  1878.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  947. 


TITLE  IV. 
Loan. 

Chapter  I.     Loan  for  Use.     §§  1884-1896. 

II.     Loan  for  Exchange.     §§  1902-1906. 
in.     Loan  of  Money.     §§  1912-1920. 


CHAPTER  I. 

Loan  for  Use. 

§  1884.  Loan,  what. 

§  1885.  Title  to  property  lent. 

§  1886.  Care  required  of  borrower. 

§  1887.  Same. 

§  1888.  Degree  of  skill. 

§  1889.  Borrower,  when  to  repair  injuries. 

§  1890.  Use  of  thing  lent. 

§  1891.  Eelending  forbidden. 

§  1892.  Borrower,  when  to  bear  expenses. 

§  1893.  Lender  liable  for  defects. 

§  1894.  Lender  may  recjuire  return  of  thing  lent. 

§  1895.  When  returnable  without  demand. 

§  1896.  Place  of  return. 

§  1884.  Loan,  what.  A  loan  for  use  is  a  contract  by  which 
one  gives  to  another  the  temporary  possession  and  nse  of  per- 
sonal property,  and  the  latter  agrees  to  return  the  same  thing 
to  him.  at  a  future  time,  without  reward  for  its  use. 

Legislation  §  1884.     Enacted  March  21,  1872;  based  on. Field's  Draft. 

N.  Y.  Civ.  Code,  §  948. 

§  1885.  Title  to  property  lent.  A  loan  for  use  does  not 
transfer  the  title  to  the  thing;  and  all  its  increase  during  the 
period  of  the  loan  belongs  to  the  lender. 

Legislation  §  1885.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  949. 

§  1886.  Care  required  of  borrower.  A  borrower  for  use 
must  use  great  care  for  the  preservation  in  safety  and  in  good 
condition  of  the  thing  lent. 

Legislation  §  1886.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  950. 

§  1887.  Same.  One  Avho  borrows  a  living  animal  for  use, 
must  treat  it  with  great  kindness,  and  provide  everything 
necessary  and  suitable  for  it. 

Depositary  of  living  animals  for  keeping:  See  ante,  §  1834. 


573  '  LOAN  FOR  USE.  §  1894 

Legislation  §  1887.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  951. 

§  1888.     Degree  of  skill.     A  borrower  for  use  is  bound  to 
have  and  to  exercise  sueh  skill  in  the  care  of  the  thing  lent  as 
he  causes  the  lender  to  believe  him  to  possess. 
Compare  with  §  1976,  post. 

Legislation  §  1888.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  952. 

§  1889.  Borrower,  w^hen  to  repair  injuries.  A  borrower  for 
use  must  repair  all  deteriorations  or  injuries  to  the  thing  lent, 
which  are  occasioned  by  his  negligence,  however  slight. 

Legislation  §  1889.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  953. 

§  1890.     Use  of  thing'  lent.     The  borrower  of  a  thing  for  use 
may  use  it  for  such  purposes  only  as  the  lender  might  reason- 
ably  anticipate  at  the  time  of  lending. 
Eelending  for  bidder:   See  post,  §  1891. 

Legislation  §  1890.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  954. 

§  1891.  Relending'  forbidden.  The  borrower  of  a  thing  for 
use  must  not  part  with  it  to  a  third  person,  without  the  con- 
sent of  the  lender. 

Legislation  §  1891.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  955. 

§  1892.  Borrower,  when  to  bear  expenses.  The  borrower 
of  a  thing  for  use  must  bear  all  its  expenses  during  the  loan, 
except  such  as  are  necessarily  incurred  by  him  to  preserve  it 
from  unexpected  and  unusual  injury.  For  such  expenses  he 
is  entitled  to  compensation  from  the  lender,  who  may,  how- 
ever, exonerate  himself  by  surrendering  the  thing  to  the 
borrower. 

Liability  for  expenses:   See  post,  §  1904. 

Legislation  §  1892.  Enacted  March  21,  1872;  based  on  Field's  Dra'ft, 
N.  Y.  Civ.  Code,  §  956. 

§  1893.  Lender  liable  for  defects.  The  lender  of  a  thing 
for  use  must  indemnify  the  borroAver  for  damage  caused  by 
defects  or  vices  in  it,  which  he  knew  at  the  time  of  lending,  and 
concealed  from  the  borrower. 

Indemnity  to  depositary:  See  §  1833,  ante. 
Loan  for  exchange:   See  post,  §§  1902,  1906. 

Legislation  §  1893.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  957. 

§  1894.  Lender  may  require  return  of  thing-  lent.  The 
lender  of  a  thing  for  use  may  at  any  time  require  its  return, 


§  1903  -     CIVIL  CODE.  574 

even  though  he  lent  it  for  a  specified  time  or  purpose.  But  if, 
on  the  faith  of  such  an  agreement,  the  borrower  has  made 
such  arrangements  that  a  return  of  the  thing  before  the  period 
agreed  upon  would  cause  him  loss,  exceeding  the  benefit  de- 
rived by  him  from  the  loan,  the  lender  must  indemnify  him  for 
such  loss,  if  he  compels  such  return,  the  borrower  not  having 
in  any  manner  violated  his  duty. 

Legislation  §  1894.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  958. 

§  1895.     When  returnable  without  demand.     If  a  thing  is 

lent  for  use  for  a  specified  time  or  purpose,  it  must  be  returned 
to  the  lender  v\-ithont  demand,  as  soon  as  the  time  has  expired, 
or  the  purpose  has  been  accomplished.  In  other  cases  it  need 
not  be  returned  until  demanded. 

Legislation  §  1895.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  959. 

§  1896.  Place  of  return.  The  borrower  of  a  thing  for  use 
must  return  it  to  the  lender,  at  the  place  contemplated  by  the 
parties  at  the  time  of  lending;  or  if  no  particular  place  was 
so  contemplated  by  them,  then  at  the  place  where  it  was  at 
that  time. 

Legislation  §  1896.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  960. 

CHAPTER  II. 

Loan  for  Exchange. 

§  1902.  Loan  for  exchange,  what. 

§  1903.  Same. 

§  1904.  Title  to  property  lent. 

§  1905.  Contract  cannot  be  modified  by  lender. 

§  1906.  Certain  sections  applicable. 

§  1902.     Loan  for  exchang-e,  what.     A  loan  for  exchange  is 
a  "contract  In-  which  one  delivers  personal  property  to  another, 
and  the  latter  agrees  to  return  to  the  lender  a  similar  thing 
at  a  future  time,  without  reward  for  its  use. 
Loan  of  money  as  a  loan  for  exchange:  See  §  1912. 
Legislation  §  1902.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  961. 

§  1903.  Same.  A  loan,  which  the  borrower  is  allowed  by 
the  lender  to  treat  as  a  loan  for  use,  or  for  exchange,  at  his 
option,  is  subject  to  all  the  provisions  of  this  chapter. 

Legislation  §  1903.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  962. 


575  LOAN    OF    MONEY.  §  1913 

§  1904.     Title  to  property  lent.     By  a  loan  for  exchange  the 
title  to  the  thing  lent  is  transferred  to  the  borrower,  and  he 
must  bear  all  its  expenses,  and  is  entitled  to  all  its  increase. 
Liability  for  expenses:   See  ante,  §  1892. 

Legislation  §  1904.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  963. 

§  1905.  Contract  cannot  be  modified  by  lender.  A  lender 
for  exchange  cannot  require  the  borrower  to  fulfill  his  obliga- 
tions at  a  time,  or  in  a  manner,  different  from  that  which  was 
originally  agreed  upon. 

Legislation  §  1905.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  964. 

§  1906.     Certain  sections  applicable.     Sections  eighteen  hun- 
dred and  ninety-three,  eighteen  hundred  and  ninety-five,  and 
eighteen  hundred  and  ninety-six,  apply  to  a  loan  for  exchange. 
Legislation  §  1906.     Enacted  March  21,  1872. 

CHAPTER  III. 

Loan  of  Money. 

§  1912.  Loan  of  money,  defined. 

§  1913.  Loan  to  be  repaid  in  current  money. 

§  1914.  Loan  presumed  to  be  on  interest. 

§  1915.  Interest,  what. 

§  1916.  Annual  rate. 

§  1917.  Legal  interest. 

§  1918.  Parties  may  agree  on  any  rate. 

§  1919.  Interest  becomes   part   of   principal,  when. 

§  1920.  Interest   on   judgment. 

Code  commissioner's  note  to  Chapter  III.  "Originally,  no  interest  was 
allowed  upon  a  loan  of  money.  But  with  the  progress  of  business,  it 
became  necessary,  and  the  transaction  thus  entered  into,  although  in 
strictness  a  hiring,  is  universally  known  as  a  loan.  This  use  of  the 
word  having  obtained  so  long,  it  would  be  idle  to  attempt  and  change 
it." 

§  1912.  Loan  of  money,  defined.  A  loan  of  money  is  a  con- 
tract by  Avhich  one  delivers  a  sum  of  money  to  another,  and 
the  latter  agrees  to  return  at  a  future  time  a  sum  equivalent  to 
that  which  he  borroAved.  A  loan  for  mere  use  is  governed 
by  the  chapter  on  loan  for  use. 
Interest:  See  post,  §§  1914  et  seq. 

Legislation  §  1912.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  9fiG. 

§  1913.  Loan  to  be  repaid  in  current  money.  A  liorrower 
of  money,  unless  thei'c  is  an  express  contract  to  the  contrary, 
must  pay  the  amount  due  in  such  money  as  is  current  at  the 


§  1917  CIVIL  CODE.  576 

time  when  the  loan  becomes  due,  whether  such  money  is  worth 
more  or  less  than  the  actual  money  lent. 

Detriment  caused  by  breach  of  obligation  to  loan:  See  post,  §  3302. 
Legislation  §  1913.     ?]naeted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  967. 

§  1914.  Loan  presumed  to  be  on  interest.  Whenever  a  loan 
of  money  is  made,  it  is  presumed  to  be  made  upon  interest, 
unless  it  is  otherwise  expressly  stipulated  at  the  time  in 
w^riting.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  244.] 

Legislation  §  1914.     1.  Enacted   March   21,    1872    (based   on   Field's 

Draft,  N.  Y.  Civ.  Code,  §  968),  and  then  read:  "A  loan  of  money  may 

be   made   with   or   without   reward,   but   is  presumed   to  be   made   for 

reward." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  244. 

§  1915.  Interest,  v^hat.  Interest  is  the  compensation  al- 
lowed by  law  or  fixed  by  the  parties  for  the  use,  or  forbearance, 
or  detention  of  money.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  245.] 

Legislation  §  1915.     1.  Enacted   March   21,   1872    (based   on   Field's 
Draft,  N.  Y.  Civ.  Code,  §  969),  and  then  read:   "Reward  for  the  loan, 
forbearance,  or  use  of  money  or  its  equivalent  is  called  interest." 
2.   Amended  by  Code  Amdts.  1873-74,  p.  245. 

§  1916.  Annual  rate.  When  a  rate  of  interest  is  prescribed 
by  a  law  or  contract,  without  specifying  the  period  of  time  by 
which  such  rate  is  to  be  calculated,  it  is  to  be  deemed  an  annual 
rate. 

Legislation  §  1916.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  970. 

§  1917.  Legal  interest.  Unless  there  is  an  express  contract 
in  writing,  fixing  a  different  rate,  interest  is  payable  on  all 
moneys  at  the  rate  of  seven  per  cent  per  annum  after  they 
become  due,  on  any  instrument  of  writing,  except  a  judgment, 
and  on  moneys  lent,  or  due  on  any  settlement  of  account,  from 
the  day  on  which  the  balance  is  ascertained,  and  on  moneys 
received  to  the  use  of  another  and  detained  from  him.  In  the 
computation  of  interest  for  a  period  less  than  a  year,  three 
hundred  and  sixty  days  are  deemed  to  constitute  a  year. 
[Amendment  approved  1878 ;  Code  Amdts.  1877-78,  p.  87.] 

Interest  on  judgments:  See  post,  §  1920. 

Compounding  interest:   See  post,  §  1919. 

Legislation  §  1917.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  971;  Stats.  1867-68,  p.  553,  §  1;  Stats.  1869-70, 
p.  199,  §  1),  and  then  read:  "Under  an  obligation  to  pay  interest,  no 
rate  being  specified,  interest  is  payable  at  the  rate  of  ten  per  cent 
per  annum,  and  in  like  proportion  for  a  longer  or  shorter  time;  but  in 


■<ai«      Repealed.     Initiative  act  approved  by  People  at  general 

1918.     Kepeaieu._  ^^^^^   November 

election,    November    o,    191b.      (In   ettect  ^_^    ^^^^    ^^^^ 

5,   1918.) 


1919.  Repealed.  Initiative  act  approved  by  People  at  general 
election,  November  5,  191S.  (In  effect  from  and  after  November  5, 
1918.)  Civ.   Code,   1918. 


1920.  Repealed.  Initiative  act  approved  by  People  at  general 
election,  November  5,  1918.  (In  effect  from  and  after  November 
5,   1918.)  Civ.   Code,  1918. 


1917.  Repealed.  Initiative  act  approved  by  People  at  genera 
election,  November  5,  191S.  (In  effect  from  and  after  Novembe 
5,  1918.)  Civ.  Code,   191£ 


577  LOAN   OF    MONEY.  §  1920 

the  computation  of  interest  for  less  than  a  year,  three  hundred  and 
sixty  days  are  deemed  to  constitute  a  year." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  245,  and  differed  from  the 
amendment  of  1877-78  (the  present  section),  in  having,  in  first  sen- 
tence, (1)  "ten  per  cent"  instead  of  "seven  per  cent,"  and  (2)  "ac- 
counts" instead  of  "account." 

3.  Amended  by  Code  Amdts.  1877-78,    p.  87. 

§  1918.  Parties  may  agree  on  any  rate.  Parties  may  agree 
in  writing  for  the  payment  of  any  rate  of  interest,  and  it  shall 
be  allowed,  according  to  the  terms  of  the  agreement,  until 
the  entry  of  judgment. 

Legislation  §  1918.     Enacted  March  21,  1872;  ))ased  on  Rtats.  1867-68, 

p.  553,  §  2;  Stats.  1869-70,  p.  699,  §  1. 

§  1919.    Interest   becomes    part    of    principal,  when.      The 

parties  may,  in  any  contract  in  writing  whereby  any  debt  is 
secured  to  be  paid,  agree  that  if  the  interest  on  such  debt  is 
not  punctually  paid,  it  shall  become  a  jDart  of  the  principal, 
and  thereafter  bear  the  same  rate  of  interest  as  the  principal 
debt. 

Legislation  §  1919.  Enacted  March  21,  1872;  based  on  Stats.  1850, 
p.  92,  §  3. 

§  1920.      Interest    on    judgment.      Interest    is    payable    on 
judgments  recovered  in  the  courts  of  this  state,  at  the  rate 
of  seven  per  cent  per  annum,  and  no  greater  rate,  but  such 
interest  must   not  be   compounded   in   any   manner   or   form. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  245.] 
Interest  as  damages:  See  post,  §§  3287,  3302,  3304,  3305,  3306. 
Legislation  §  1920.     1.  Enacted  March  21,  1872,  and  then  read:  "No 
judgment  in  any  court  of  this  state  shall  draw  interest  at  a  rate  to 
exceed  seven  per  cent  per  annum.     Interest  must  not  be  compounded 
in  any  manner  or  form  on  a  judgment." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  245, 
Civ.  Code — 37 


§  1928  CIVIL  CODE.  578 

TITLE  V. 

Hiring'. 

Chapter  I.     Hiring  in  General.     §§  1925-1935. 

II.     Hiring  of  Real  Property.     §§  1941-1950. 
III.     Hiring  of  Personal  Property.     §§  1955-1959. 


CHAPTER  I. 

Hiring  in  General. 

§  1925.  Hiring,  what. 

§  1926.  Products  of  thing. 

§  1927.  Quiet  possession. 

§  1928.  Degree  of  care,  etc.,  on  part  of  hirer. 

§  1929.  Must  repair  injuries,  etc. 

§  1930.  Thing  let  for  a  particular  purpose. 

§  1931.  When  letter  may  terminate  the  hiring. 

§  1932.  Hirer  may  terminate  the  hiring,  when. 

§  1933.  When   hiring  terminates. 

§  1934.  When  terminated  by  death,  etc.,  of  party. 

§  1935.  Apportionment  of  hire. 

§  1925.  Hiring-,  what.  Hiring  is  a  contract  by  Avhich  one 
gives  to  another  the  temporary  possession  and  use  of  property, 
other  than  money,  for  reward,  and  the  latter  agrees  to  return 
the  same  to  the  former  at  a  future  time. 

Hiring  of  real  property:   See  post,  §§  1941  et  seq. 
Hiring  personalty:  See  post,  §§  1955  et  seq. 

Legislation  §  1925.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  979. 

§  1926.  Products  of  thing'.  The  products  of  a  thing  hired, 
during  the  hiring,  belong  to  the  hirer. 

_      Legislation  §  1926.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  980. 

§  1927.  Quiet  possession.  An  agreement  to  let  upon  hire 
binds  the  letter  to  secure  to  the  hirer  the  quiet  possession  of 
the  thing  hired  during  the  term  of  the  hiring,  against  all  per- 
sons lawfully  claiming  the  same. 

Duty  of  letter  of  building  in  this  respect:  See  post,  §  1941. 
Duty  of  letter  of  personalty  likewise:  See  post,  §  1955. 
Legislation  §  1927.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  981. 

§  1928.  Degree  of  care,  etc.,  on  part  of  hirer.  The  hirer  of 
a  thing  must  use  ordinary  care  for  its  preservation  in  safety 
and  in  good  condition. 

Legislation  §  1928.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  982. 


579  HIRING  IN  GENERAL.  §  1932 

§  1929.  Must  repair  injuries,  etc.  The  hirer  of  a  thing  must 
repair  all  deteriorations  or  injuries  thereto  occasioned  by  his 
want  of  ordinary  care.  [Amendment  approved  1905 ;  Stats. 
1905,  p.  614.] 

Repairs.  This  requirement  results  from  the  rule  of  the  previous 
section,  and  the  same  rule  applies  to  realty:   See  post,  §  1941. 

With  respect  to  the  consequence  of  not  complying  with  provisions 
of  section,  see  post,  §  1931. 

Legislation  §  1929.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §983),  and  then  read:  "The  hirer  of  a  thing 
must  repair  all  deteriorations  or  injuries  thereto  occasioned  by  his  or- 
dinary negligence." 

2.  Amendmen,t  by  Stats.  1901,  p.  412;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  614. 

§  1930.  Thing'  let  for  a  particular  purpose.  When  a  thing 
is  let  for  a  particular  purpose  the  hirer  must  not  use  it  for  any 
other  purpose ;  and  if  he  does,  he  is  liable  to  the  letter  for  all 
damages  resulting  from  such  use,  or  the  letter  may  treat  the 
contract  as  thereby  rescinded.  [Aniendment  approved  1905 ; 
Stats.  1905,  p.  614."] 

Legislation  §  1930.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  984),  and  then  read:  "When  a  thing  is  let  for 
a  particular  purpose  the  hirer  must  not  use  it  for  any  other  purpose; 
but  if  he  does,  the  letter  may  hold  him  responsible  for  its  safety  during 
such  use  in  all  events,  or  may  treat  the  contract  as  thereby  rescinded." 

2.  Amendment  by  Stats.  1901,  p.  412;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  614. 

§  1931.  When  letter  may  terminate  the  hiring.  The  letter 
of  a  thing  may  terminate  the  hiring  and  reclaim  the  thing  be- 
fore the  end  of  the  term  agreed  upon : 

1.  When  the  hirer  uses  or  permits  a  use  of  the  thing  hired  in 
a  manner  contrary  to  the  agreement  of  the  parties;  or, 

2.  When  the  hirer  does  not,  within  a  reasonable  time  after 
request,  make  such  repairs  as  he  is  bound  to  make. 

Legislation  §  1931.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  985. 

§  1932.  Hirer  may  terminate  the  hiring",  when.  The  hirer 
of  a  thing  may  terminate  the  hiring  before  the  end  of  the 
term  agreed  upon : 

1.  When  the  letter  docs  not,  Avithin  a  reasonable  time  after 
request,  fulfill  his  obligations,  if  any,  as  to  placing  and  secur- 
ing the  hirer  in  the  quiet  possession  of  the  thing  hired,  or  put- 
ting it  into  good  condition,  or  repairing;  or, 

2.  When  the  greater  part  of  the  thing  hired,  or  that  part 
which  was  and  which  the  letter  had  at  the  time  of  the  hiring 
reason  to  believe  was  the  material  inducement  to  the  hirer  to 


§  1935  CIVIL  CODE.  580 

enter  into  the  contract,  perishes  from  any  other  cause  than 
the  want  of  ordinary  care  of  the  hirer.  [Amendment  approved 
1905;  Stats.  1905,  p.  614.] 

Repair  of  premises:  See  post,  §  1955. 

Legislation  §  1932.  1.  Enacted  March  21.  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  986),  the  final  words  of  subd.  2  then  being, 
"from  any  other  cause  than  the  ordinary  negligence  of  the  hirer." 

2.  Amendment  by  Stats.  1901,  p.  412;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  614. 

§  1933.     When  hiring  terminates.     The  hiring  of  a  thing  ter- 
minates : 

1.  At  the  end  of  the  term  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties ; 

3.  By  the  hirer  acquiring  a  title  to  the  thing  hired  sup<!rior 
to  that  of  the  letter ;  or, 

4.  By  the  destruction  of  the  thing  hired. 

Legislation  §  1933.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  987. 

§  1934.     When  terminated  by  death,  etc.,  of  party.     If  the 

hiring  of  a  thing  is  terminable  at  the  pleasure  of  one  ol!  the 
parties,  it  is  terminated  by  notice  to  the  other  of  his  death  or 
incapacity  to  contract.  In  other  cases  it  is  not  terminated 
thereby. 

Legislations  1934.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  988. 

§  1935.  Apportionment  of  hire.  AVhen  the  hiring  of  a  thing 
is  terminated  before  the  time  originally  agreed  upon,  the  hirer 
must  pay  the  due  proportion  of  the  hire  for  such  use  as  he 
has  actually  made  of  the  thing,  unless  such  use  is  merely  uojui- 
nal,  and  of  no  benefit  to  him. 

For  the  compensation  to  which  a  depositary  for  hire  is  entitled  upon 
a  termination  of  the  deposit,  see  ante,  §§  1853-1855. 

Legislation  §  1935.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  989. 


581  HIRING  OF  REAL  PROPERTY.  §  1943 

CHAPTER  II. 

Hiring  of  Real  Property. 

§  1941.  Lessor  to  make  dwelling-house  fit  for  its  purpose. 

§  1942.  When  lessee  may  make  repairs,  etc. 

§  1943.  Term  of  hiring  when  no  limit  is  fixed. 

§  1944.'  Hiring  of  lodgings  or  dwelling-house  for  indefinite  term. 

§  1945.  Renewal   of  lease  by  lessee's  continued  possession. 

§  1946.  Notice  to  quit. 

§  1947.  Eent,  when  payable. 

§  1948.  Attornment  of  a  tenant  to  a  stranger. 

§  1949.  Tenant  must  deliver  notice  served  on  him. 

§  1950.  Letting  parts  of  rooms  forbidden. 

§  1941.     Lessor  to  make  dwelling-house  fit  for  its  purpose. 

The  lessor  of  a  building  intended  for  the  occupation  of  human 
beings  must,  in  the  absence  of  an  agreement  to  the  contrary, 
put  it  into  a  condition  fit  for  such  occupation,  and  repair 
all  subsequent  dilapidations  thereof,  which  render  it  untenant- 
able, except  such  as  are  mentioned  in  section  nineteen  hundred 
and  twenty-nine.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  245.] 

Legislation  §  1941.  1.  Enacted  March  21.  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  990),  and  then  read:  "The  lessor  of  a  build- 
ing intended  for  the  occupation  of  human  beings  must  put  it  into  a 
condition  fit  for  that  purpose,  and  must  repair  all  subsequent  dilapida- 
tions thereof,  except  such  as  are  mentioned  in  section"  1929." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  245.  , 

§  1942.    When  lessee  may  make  repairs,  etc.    If  within  a 

reasonable  time  after  notice  to  the  lessor,  of  dilapioktions 
which  he  ought  to  repair,  he  neglects  to  "do  so,  the  lessee  may 
repair  the  same  himself,  where  the  cost  of  such  repairs  do  not 
require  an  expenditure  greater  than  one  month's  rent  of  the 
premises,  and  deduct  the  expenses  of  such  repairs  from  the 
rent,  or  the  lessee  may  vacate  the  premises,  in  which  case  he 
shall  be  discharged  from  further  payment  of  rent,  or  perform- 
ance of  other  conditions.  [Amendment  approved  1874;  Code 
Amdts.  1873^74,  p.  246.] 

Legislktion  §  1942.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  991),  and  then  read:  "If,  within  a  reasonable 
time  after  notice  to  the  lessor,  of  dilapidations  which  he  ought  to  re- 
pair, he  neglects  to  do  so,  the  lessee  may  repair  the  same  himself,  and 
deduct  the  expenses  of  such  repairs  from  the  rent,  or  otherwise  recover 
it  from  the  lessor." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  246. 

§  1943.  Term  of  hiring  when  no  limit  is  fixed.  A  hiring  of 
real  property,  other  than  lodgings  and  dwelling-houses,  in 
places  where  there  is  no  usage  on  the  subject,  is  presumed  to 


§  1947  CIVIL  CODE.  582 

be  for  one  year  from  its  commencement,  unless  otherwise  ex- 
pressed in  the  hiring. 

Legislation!  1943.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  992. 

§  1944.  Hiring-  of  lodgings  or  dwelling-house  for  indefinite 
term.  A  hiring  of  lodgings  or  a  dwelling-house  for  an  un- 
specified term  is  presumed  to  have  been  made  for  such  length 
of  time  as  the  parties  adopt  for  the  estimation  of  the  rent. 
Thus  a  hiring  at  a  monthly  rate  of  rent  is  presumed  to  be  for 
one  month.  In  the  absence  of  any  agreement  respecting  the 
length  of  time  or  the  rent,  the  hiring  is  presumed  to  be 
monthly. 

Legislation  §  1944.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  993. 

§1945.     Renewal  of  lease  by  lessee's  continued  possession. 

If  a  lessee  of  real  property  remains  in  possession  thereof  after 
the  expiration  of  the  hiring,  and  the  lessor  accepts  rent  from 
him,  the  parties  are  presumed  to  have  renewed  the  hiring  on 
the  same  terms  and  for  the  same  time,  not  exceeding  one 
month  when  the  rent  is  payable  monthly,  nor  in  any  case  one 
year. 

Agricultural  land,  rights  of  tenant  holding  over:  See  Code  Civ. 
Proc,  §  1161. 

Legislation  §  1945.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  994. 

§  1946.  Notice  to  quit.  A  hiring  of  real  property,  for  a 
term  not  specified  by  the  parties,  is  deemed  to  be  renewed  as 
stated  in  the  last  section,  at  the  end  of  the  term  implied  by 
law,  unless  one  of  the  parties  gives  notice  to  the  other  of  his 
intention  to  terminate  the  same,  at  least  as  long  before  the 
expiration  thereof  as  the  term  of  the  hiring  itself,  not  exceed- 
ing one  month. 

Termination  of  estates  at  will:  See  ante,  §§  789  et  seq. 
Notice  to  quit:  See  ante,  §  789. 

Legislation  §  1946.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  995. 

§  1947.  Rent,  when  payable.  When  there  is  no  usage  or 
contract  to  the  contrary,  rents  are  payable  at  the  termination 
of  the  holding,  when  it  does  not  exceed  one  year.  If  the  hold- 
ing is  by  the  day,  week,  month,  quarter,  or  year,  rent  is  pay- 
able at  the  termination  of  the  respective  periods,  as  it  succes- 
sively becomes  due. 

Legislation  §  1947.  Enacted  March  21,  1872.  The  code  commission- 
ers say:   "Substitute  f or  §  996  of  the  New  York  Civil  Code." 


583  HIRING  OF  PERSONAL  PROPERTY.  §  1955 

§  1948.  Attornment  of  a  tenant  to  a  stranger.  The  attorn- 
ment of  a  tenant  to  a  stranger  is  void,  unless  it  is  made  with 
the  consent  of  the  landlord,  or  in  consequence  of  a  judgment 
of  a  court  of  competent  jurisdiction. 

Grants  of  rents  or  reversions:  See  ante,  §  1111. 

Rights  of  lessor  and  lessee  on  transfer  of  realty:   See  ante,  §§  821 
et  seq. 

Legislation  §  1948.     Enacted  March  21,  1872. 

§  1949.  Tenant  must  deliver  notice  served  on  him.  Every 
tenant  who  receives  notice  of  any  proceeding  to  recover  the 
real  property  occupied  by  him,  or  the  possession  thereof,  must 
immediately  inform  his  landlord  of  the  same,  and  also  deliver 
to  the  landlord  the  notice,  if  in  writing,  and  is  responsible  to 
the  landlord  for  all  damages  which  he  may  sustain  by  reason 
of  any  omission  to  inform  him  of  the  notice,  or  to  deliver  it  to 
him  [if]  in  writing.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  246.] 

Legislation  §  1949.     1.  Enacted    March    21,    1872    (based    on    Field's 

Draft,  N.  Y.  Civ.  Code,  §  997),  and  then  ended  with  the  words  "inform 

his  landlord  of  the  same." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  246. 

§  1950.  Letting'  parts  of  rooms  forbidden.  One  who  hires 
part  of  a  room  for  a  dwelling  is  entitled  to  the  whole  of  the 
room,  notwithstanding  any  agreement  to  the  contrary ;  and 
if  a  landlord  lets  a  room  as  a  dwelling  for  more  than  one  fam- 
ily, the  person  to  whom  he  first  lets  any  part  of  it  is  entitled 
to  the  possession  of  the  whole  room  for  the  term  agreed  upon, 
and  every  tenant  in  the  building,  under  the  same  landlord,  is 
relieved  from  all  obligation  to  pay  rent  to  him  while  such 
double  letting  of  any  room  continues. 

Legislation  §  1950.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  y.  Civ.  Code,  §  998.     The  code  commissioners  say:   "This  provision 

is   intended   to   prevent   one   of   the   chief   abuses   of   tenement-houses. 

Mere  penalties,  whether  civil  or  criminal,  are  not  likely  to  be  enforced. 

But  the  loss  of  rent  would  be  a  punishment  tha't  could  be  enforced 

by  way  of  defense  to  an  action." 

CHAPTER  III. 

Hiring  of  Personal  Property. 

§  1955.  Obligations  of  letter  of  personal  property. 

§  1956.  Ordinary  expenses. 

§  1957.  Extraordinary  expenses. 

§  1958.  Eeturn   of  thing  hired. 

§  1959.  Charter-party,   what. 

§  1955.     Obligations  of  letter  of  personal  property.    One  who 

lets  ])(M-sonal  property  must  deliver  it  to  the  hirer,  secure  his 


§  1959  CIVIL  CODE.  584 

quiet  enjoyment  thereof  against  all  lawful  claimants,  put  it 
into  a  eondition  fit  for  the  purpose  for  which  he  lets  it,  and  re- 
pair all  deteriorations  thereof  not  occasioned  by  the  fault  of 
the  hirer  and  not  the  natural  result  of  its  use. 

Quiet  enjoyment:   See  ante,  §  1927. 

Repair  of  premises:   See  ante,  §  1932. 

Legislation  §  1955.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  999. 

§  1956.  Ordinary  expenses.  A  hirer  of  personal  property 
must  bear  all  such  expenses  concerning  it  as  might  naturally 
be  foreseen  to  attend  it  during  its  use  by  him.  All  other  ex- 
penses must  be  borne  by  the  letter. 

Legislation  §  1956.  Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1000. 

§  1957.  Extraordinary  expenses.  If  a  letter  fails  to  fulfill 
his  obligations,  as  prescril)ed  by  section  nineteen  hundred  and 
fifty-five,  the  hirer,  after  giving  him  notice  to  do  so,  if  such 
notice  can  conveniently  be  given,  may  expend  any  reasonable 
amount  necessary  to  make  good  the  letter's  default,  and  may 
recover  such  amount  from  him. 

Legislation  §  1957.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  1001. 

§  1958.  Return  of  thing-  hired.  At  the  expiration  of  the 
term  for  which  personal  property  is  hired,  the  hirer  must 
return  it  to  the  letter  at  the  place  contemplated  by  the  parties 
at  the  time  of  hiring ;  or,  if  no  particular  place  was  so  contem- 
plated by  them,  at  the  place  at  which  it  was  at  that  time. 

Legislation  §  1958.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  1002. 

§  1959.  Charter-party,  w^hat.  The  contract  by  which  a  ship 
is  let  is  termed  a  charter-party.  By  it  the  owner  may  either 
let  the  capacity  or  burden  of  the  ship,  continuing  the  employ- 
ment of  the  owner's  master,  crew,  and  equipments,  or  may 
surrender  the  entire  ship  to  the  charterer,  who  then  provides 
^hem  himself.  The  master  or  a  part-owner  may  be  a  charterer. 
Owner  for  voyage:   See  ante,  §  965. 

Legislation  §  1959.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1003. 


585  OBLIGATIONS  OF   THE  EMPLOYER.  §  1970 

TITLE  VI. 
Service. 

Chapter  I.     Service    With     Employment.     Articles    I-IV.     §§  1965-2003. 
II.     Particular   Employments.     Articles   I-VI.     §§2009-2072. 
III.     Service  Without  Employment.     §§  2078,  2079. 

CHAPTER  I. 

Service  With  Employment. 

Article  I.  Definition  of  Employment.     §1965. 

11.  Obligations  of  the  Employer.     §§  1969-1971. 

m.  Obligations  of  the  Employee.     §§  1975-1992. 

IV.  Termination  of  Employment.     §§  1996-2003. 

Code  commissioners'  note  to  Chapter  I.  "The  scope  of  this  chapter 
is  not  confined  to  servants,  but  includes  factors,  brokers,  carriers, 
agents,  and  all  similar  classes  of  persons." 

AETICLE  I. 

Definition  of  Employment. 

§  1965.     Employment,  what. 

§  1965.  Employment,  what.  The  contract  of  employment 
is  a  contract  by  which  one,  who  is  called  the  employer,  engages 
another,  Avho  is  called  the  employee,  to  do  something  for  the 
benefit  of  the  employer,  or  of  a  third  person. 

Legislation  §  1965.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1004. 

2.  Amendment  by  Stats.  1901,  p.  412;  unconstitutional.  See  note, 
§  4,  ante. 

AETICLE  II. 
Obligations  of  the  Employer. 

§  1969.     When  employer  must  indemnify  employee. 

§  1970.     When  employer  not  bound  to  indemnify  employee. 

§  1971.     Employer  to  indemnify  for  his  own  negligence. 

§  1969.    When    employer    must    indemnify    employee.    An 

employer  must  indemnify  his  employee,  except  as  prescribed  in 
the  next  section,  for  all  that  he  necessarily  expends  or  loses  in 
direct  consequence  of  the  discharge  of  his  duties  as  such,  or 
of  his  obedience  to  the  directions  of  the  employer,  even  though 
unlawful,  unless  the  employee,  at  the  time  of  obeying  such 
directions,  believed  them  to  be  unlawful. 

Legislation  §  1969.  Enacted  March  21,  1872;  bas(Ml  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  1005. 

§  1970.     When  employer  not  bound  to  indemnify  employee. 

An  employer  is  not  bound  to  indemnify  his  employee  for  losses 


§  1970  CIVIL  CODE.  586 

suffered  by  the  latter  in  consequence  of  the  ordinary  risks  of  the 
business  in  which  he  is  employed,  nor  in  consequence  of  the  neg- 
ligence of  another  person  employed  by  the  same  employer  in 
the  same  general  business,  ui|less  the  negligence  causing  the 
injury  was  committed  in  the  performance  of  a  duty  the  em- 
ployer owes  by  law  to  the  employee,  or  unless  the  employer  has 
neglected  to  use  ordinary  care  in  the  selection  of  the  culpable 
employee ;  provided,'  nevertheless,  that  the  employer  shall  be 
liable  for  such  injury  when  the  same  results  from  the  wrongful 
act,  neglect  or  default  of  any  agent  or  officer  of  such  employer, 
superior  to  the  employee  injured,  or  of  a  person  employed  by 
such  employer  having  the  right  to  control  or  direct  the  services 
of.  such  employee  injured,  and  also  when  such  injury  results 
from  the  wrongful  act,  neglect  or  default  of  a  co-employee 
engaged  in  another  department  of  labor  from  that  of  the 
employee  injured,  or  employed  upon  a  machine,  railroad  train, 
switch-signal  point,  locomotive-engine,  or  other  appliance  than 
that  upon  Avhich  the  employee  is  injured  is  employed,  or  who 
is  charged  with  dispatching  trains,  or  transmitting  telegraphic 
or  telephonic  orders  upon  any  railroad,  or  in  the  operation  of 
any  mine,  factory,  machine-shop,  or  other  industrial  establish- 
ment. 

Knowledge  by  an  employee  injured  of  the  defective  or  unsafe 
character  or  condition  of  any  machinery,  ways,  appliances  or 
structures  of  such  employer  shall  not  be  a  bar  to  recovery  for 
any  injury  or  death  caused  thereby,  unless  it  shall  also  appear 
that  such  employee  fully  understood,  comprehended  and  ap- 
preciated the  dangers  incident  to  the  use  of  such  defective 
machinery,  Avays,  appliances  or  structures,  and  thereafter  con- 
sented to  use  the  same,  or  continued  in  the  use  thereof. 

When  death,  whether  instantaneous  or  otherwise,  results 
from  an  injury  to  an  employee  received  as  aforesaid,  the  per- 
sonal representative  of  such  employee  shall  have  a  right  of 
action  therefor  against  such  employer,  and  may  recover  dam- 
ages in  respect  thereof,  for  and  on  behalf,  and  for  the  benefit 
of  the  widow,  children,  dependent  parents,  and  dependent 
brothers  and  sisters,  in  order  of  precedence  as  herein  stated, 
but  no  more  than  one  action  shall  be  brought  for  such  recoveiy. 

Any  contract  or  agreement,  express  or  implied,  made  by  any 
such  employee  to  waive  the  benefits  of  this  section,  or  any  part 
thereof,  shall  be  null  and  void,  and  this  section  shall  not  be 
construed  to  deprive  any  such  employee  or  his  personal  repre- 
sentative, of  any  right  or  remedy  to  which  he  is  now  entitled 
under  the  laws  of  this  state. 

The  rules  and  principles  of  law^  as  to  contributory  negligence 
which  apply  to  other  cases  shall  apply  to  cases  arising  under 


587  -  OBLIGATIONS  OF  THE  EMPLOYEE.  §  1976 

this  section,  except  in  so  far  as  the  same  are  herein  modified  or 
changed.  [Amendment  approved  1907;  Stats.  1907,  p;  119.] 
Legislation  §  1970.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1006),  and  then  read:  "An  employer  is  not 
bound  to  indemnify  his  employee  for  losses  suffered  by  the  latter  in 
consequence  of  the  ordinary  risks  of  the  business  in  which  he  is  em- 
ployed, nor  in  consequence  of  the  negligence  of  another  person  em- 
ployed by  the  same  employer  in  the  same  general  business,  unless  he 
has  neglected  to  use  ordinary  care  in  the  selection  of  the  culpable 
employee." 

2.  Amended  by  Stats.  1903,  p.  256,  then  ending  with  the  words  "selec- 
tion of  the  culpable  employee."  the  proviso  being  added  in  1907. 

3.  Amended  by  Stats.  1907,  p.  119. 

§  1971.     Employer  to  indemnify  for  his  own  negligence.    An 

employer  must  in  all  eases  indemnify  his  employee  for  losses 
caused  by  the  former's  want  of  ordinary  care. 

Legislation  §  1971.     Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  1007. 

AETICLE  III. 

Obligations  of  the  Employee. 

§  1975.  Duties  of  gratuitous  employee. 

§1976.  Same. 

§  1977.  Same. 

§  1978.  Duties  of  employee  for  reward. 

§  1979.  Duties  of  employee  for  his  own  benefit. 

§  1980.  Contracts  for  service  limited  to  two  years. 

§  1981.  Employee  must  obey  employer. 

§  1982.  Employee  to  conform  to  usage. 

§  1983.  Degree  of  skill  required. 

§  1984.  Must  use  what  skill  he  has. 

§  1985.  What  belongs  to  employer. 

§  1986.  Duty  to  account. 

§  1987.  Employee  not  bound  to  delivef  without  demand. 

§  1988.  Preference  to  be  given  to  employers. 

§  1989.  Responsibility  of  employee  for  substitute. 

§  1990.  Eesponsibility  for  negligence. 

§  1991.  Surviving  employee. 

§  1992.  Confidential   employment. 

§  1975.  Duties  of  gratuitous  employee.  One  who,  without 
consideration,  undertakes  to  do  a  service  for  another,  is  not 
bound  to  perform  the  same,  but  if  he  actually  enters  upon  its 
performance,  he  must  use  at  least  slight  care  and  diligence 
therein. 

Service  without  employment:  See  post,  §  2078. 
Obligations  of  gratuitous  carrier:  Post,  §  2089. 
Gratuitous  bailee:   See  ante,  §  1846. 

Legislation  §  1975.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1008. 

§  1976.  Same.  One  who,  by  his  own  special  request,  in- 
duces another  to  intrust  him  with  the  performance  of  a  service, 


§  1980  CIVIL  CODE.  588 

must  perform  the  same  fully.     In  other  cases,  one  who  under- 
takes a  gratuitous  service  may  relinquish  it  at  any  time. 
Compare  ante,  §  1888. 

Legislation  §  1976.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1009.  The  code  commissioners  say:  "This  di|tinction 
is  recognized  by  the  civil  law,  but  it  is  not  clear  that  it  is  admitted  by 
the  common  law.  There  is  good  reason  for  it,  since  a  volunteer  of  this 
kind  might  seriously  mislead  one  who  relied  upon  him,  and  who  would 
otherwise  have  employed  some  one  else  for  a  compensation,  and  thus 
have  been  sure  of  the  service  he  required." 

§  1977.  Same.  A  gratuitous  employee,  who  accepts  a  writ- 
ten power  of  attorney,  must  act  under  it  so  long  as  it  remains 
in  force,  or  until  he  gives  notice  to  his  employer  that  he  will 
not  do  so. 

Legislation  §  1977.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1010.  The  code  commissioners  say:  "This  provision 
is  new  to  the  common  law;  but  is  founded  upon  justice.  By  retaining 
the  instrument,  the  attorney  keeps  in  his  hands  a  power  which  he 
may  use  to  the  detriment  of  his  principal,  and  misleads  the  latter  into 
the  belief  that  he  will  use  it  for  his  benefit." 

§  1978.  Duties  of  employee  for  reward.  One  who,  for  a 
good  consideration,  agrees  to  serve  another,  must  perform 
the  service,  and  must  use  ordinary  care  and  diligence  therein, 
so  long  as  he  is  thus  employed. 

Employee  to  use  ordinary  care.  Bound  to  exercise  a  reasonable  de- 
gree of  skill,  unless  his  employer  knows  of  his  want  of  skill:  Post, 
§  1983.     Always  bound  to  use  such  skill  as  he  possesses:  Post,  §  1984. 

For  employee's  liability  for  culpable  negligence:  See  post,  §  1990. 

Legislation  §  1978.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1011. 

§  1979.     Duties  of  employee  for  his  own  benefit.     One  Avho 

is  employed  at  his  own  request  to  do  that  which  is  more  for  his 

own  advantage  than  for  that  of  his  employer,  must  use  great 

care  and  diligence  therein  to  protect  the  interest  of  the  latter. 

Legislation  §  1979.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1012. 

§  1980.  Contracts  for  service  limited  to  two  years.  A  con- 
tract to  render  personal  service,  other  than  a  contract  of 
apprenticeship,  as  provided  in  the  chapter  on  master  and  ser- 
vant, cannot  be  enforced  against  the  employee  beyond  the 
term  of  two  years  from  the  commencement  of  service  under  it : 
but  if  the  employee  voluntarily  continues  his  service  under  it 
beyond  that  time,  the  contract  may  be  referred  to  as  affording 
a  presumptive  measure  of  the  compensation. 

Apprenticeship:  See  ante,  §§  264  et  seq. 

Presumption  as  to  compensation:  See  post,  §§  2011,  2012. 

Terra  of  hiring:  See  post,  §§  2010,  2011. 


1980.      Contracts   for   Service    Limited   to    Five  Years.     A 

tract  to  render  personal  service,  other  than  a  contract  of 
prenticeship,  as  provided  in  the  chapter  on  master  and  sen 
can  not  be  enforced  against  the  employee  beyond  the  terr 
[five]  years  from  the  commencement  of  service  under  it; 
if  the  employee  voluntarily  continues  his  service  under  it  be 
that  time,  the  contract  may  be  referred  to  as  affordin 
presumptive  measure  of  the  compensation.  (In  effect  90 
from    and    after   April    22,    1919.      Stats.    1919,    Chap.    512.) 

Civ.   Code. 


589  OBLIGATIONS  OP  THE  EMPLOYEE.  §  1984 

Legislation  §  1980.  1.  Enacted  March  21,  1872;  based  on  Fields' 
Draft,  N.  Y.  Civ.  Code,  §  1013. 

2.  Amendment  by  Stats.  1901,  p.  413;  unconstitutional.  See  note,  §  4, 
ante. 

§  1981.  Employee  must  obey  employer.  An  employee  must 
substantially  comply  with  all  the  directions  of  his  employer 
concerning  the  service  on  which  he  is  engaged,  except  where 
such  obedience  is  impossible  or  unlawful,  or  would  impose  new 
and  unreasonable  burdens  upon  the  employee.  [Amendment 
approved  1874 ;  Code  Amdts.  1873-74,  p.  246.] 
Obedience  required  from  factor:  Post,  §  2027. 

Legislation  §  1981.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft.  N.  Y.  Civ.  Code,  §  1014),  and  then  read:  "An  employee  must  sub- 
stantially comply  with  all  the  directions  of  his  employer  concerning  the 
service  on  which  he  is  engaged,  even  though  contrary  to  the  provisions 
of  this  title,  except  where  such  obedience  is  impossilsle  or  unlawful,  or 
would  impose  new  and  unreasonable  burdens  upon  the  employee,  or  in 
case  of  an  emergency  which,  according"  to  the  best  information  which 
the  employee  can  with  reasonable  diligence  obtain,  the  employer  did 
not  contemplate,  in  which  he  cannot,  with  reasonable  diligence,  be  con- 
sulted, and  in  which  non-compliance  is  judged  by  the  employee,  in  good 
faith,  and  in  the  exercise  of  reasonable  discretion,  to  be  absolutely 
necessary  for  the  protection  of  the  employer's  interests.  In  all  such 
cases  the  employee  must  conform  as  nearly  to  the  directions  of  his  em- 
ployer as  may  be  reasonably  practicable,  and  most  for  the  interest 
of  the  latter." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  246. 

§  1982.  Employee  to  conform  to  usage.  An  employee  must 
perform  his  service  in  conformity  to  the  usage  of  the  place  of 
performance,  unless  otherwise  directed  by  his  employer,  or, 
unless  it  is  impracticable,  or  manifestly  injurious  to  his  em- 
ployer to  do  so. 

Legislation  §  1982,  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1015. 

§  1983.  Degree  of  skill  required.  An  employee  is  bound  to 
exercise  a  reasonable  degree  of  skill,  unless  his  employer  has 
notice,  before  employing  him,  of  his  want  of  skill. 

Legislation  §  1983.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1016. 

§  1984.  Must  use  what  skill  he  has.  An  employee  is  always 
bound  to  use  such  skill  as  he  possesses,  so  far  as  the  same  is 
required,  for  the  service  specified.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  247.] 

Legislation  §  1984.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1017),  and  then  read:  "An  employee  is  always 
bound  to  use  such  skill  as  he  possesses." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  247. 


§  1989  CIVIL  CODE.  590 

§  1985.  What  belongs  to  employer.  Everything  which  an 
employee  acquires  by  virtue  of  his  employment,  except  the 
compensation,  if  any,  which  is  due  to  him  from  his  employer, 
belongs  to  the  latter,  whether  acquired  lawfully  or  unlawfully, 
or  during  or  after  the  expiration  of  the  term  of  his  employment. 
Legislation  §  1985.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1018. 

§  1986.     Duty  to  account.     An  employee  must,  on  demand, 
render  to  his  employer  just  accounts  of  all  his  transactions  in 
the  course  of  his  service,  as  often  as  may  be  reasonable,  and 
must,  without  demand,  give  prompt  notice  to  his  employer  of 
everything  which  he  receives  for  his  account. 
Duty  to  pay  over  without  demand:  See  post,  §  2014. 
Legislation  §  1986.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1019. 

§  1987.     Employee  not  bound  to  deliver  without  demand. 

An  employee  who  receives  anything  on  account  of  his  employer, 
in  any  capacity  other  than  that  of  a  mere  servant,  is  not  bound 
to  deliver  it  to  him  until  demanded,  and  is  not  at  liberty  to  send 
it  to  him  from  a  distance,  without  demand,  in  any  mode  involv- 
ing greater  risk  than  its  retention  by  the  employee  himself. 

Servant  to  pay  over,  without  demand:  See  post,  §  2014. 
Sending  things  from  distance:  See  post,  §  2014. 

Legislation  §  1987.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1020. 

§  1988.  Preference  to  be  given  to  employers.  An  employee 
who  has  any  business  to  transact  on  his  own  account,  similar 
to  that  intrusted  to  him  by  his  employer,-  must  always  give  the 
latter  the  preference.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  247.] 

Legislation  §  1988.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1021),  and  then  had  a  second  sentence,  which 
read:  "If  intrusted  with  similar  affairs  by  different  employers,  he  must 
give  them  preference  according  to  their  relative  urgency,  or,  other 
things  being  equal,  according  to  the  order  in  which  they  were  com- 
mitted to  him."  / 

2.  Amended  by  Code  Amdts.  1873-74,  p.  247. 

§  1989.  Responsibility  of  employee  for  substitute.  An  em- 
ployee who  is  expressly  authorized  to  employ  a  substitute  is 
liable  to  his  principal  only  for  want  of  ordinary  care  in  his 
selection.  The  substitute  is  directly  responsible  to  the  prin- 
cipal. 

Delegation  of  agents  authority:   See  post,  §§  2349  et  seq. 
Legislation  §  1989.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1022. 


591  TERMINATION   OF  EMPLOYMENT.  §  1997 

§  1990.  Responsibility  for  neglig-ence.  An  employee  who  is 
guilty  of  a  culpable  degree  of  negligence  is  liable  to  his  em- 
ployer for  the  damage  thereby  caused  to  the  latter;  and  the 
employer  is  liable  to  him,  if  the  service  is  not  gratuitous,  for 
the  value  of  such  services  only  as  are  properly  rendered. 

Legislation  §  1990.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1023. 

2,  Amendment  by  Stats.  1901,  p.  413;  unconstitutional.  See  nx)te, 
§  4,  ante. 

§  1991.  Surviving-  employee.  Where  service  is  to  be  ren- 
dered by  two  or  more  persons  jointly,  and  one  of  them  dies, 
the  survivor  must  act  alone,  if  the  service  to  be  rendered  is 
such  as  he  can  rightly  perform  without  the  aid  of  the  deceased 
person,  but  not  otherwise. 

Legislation  §  1991.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1024. 

§  1992.     Confidential  employment.     The  obligations  peculiar 
to  confidential  employments  are  defined  in  the  title  on  trusts. 
Confidential  employments:  See  title  on  trusts,  post,  §§  2215  et  seq. 
Legislation  §  1992.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1025. 

AETICLE  IV. 

Termination    of   Employment. 

§  1996.  Termination  by  death,   etc.,   of  employer. 

§  1997.  Employment,  how  terminated. 

§  1998.  Continuance   of   service   in   certain   eases. 

§  1999.  Terms  of  employment. 

§  2000.  Termination  by  employer. 

§  2001.  Termination  by  employee. 

§  2002.  Compensation  due  on  dismissal. 

§  2003.  Compensation  due  on  quitting. 

§  1996.  Termination  by  death,  etc.,  of  employer.  Every 
employment  in  which  the  power  of  the  employee  is  not  coupled 
with  an  interest  in  its  subject  is  terminated  by  notice  to  him  of : 

1.  The  death  of  the  employer ;  or, 

2.  His  legal  incapacity  to  contract. 
Termination  of  agency:  See  post,  §§  2355  et  seq. 

Legislation  §  1996.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1026. 

2.  Amendment  by  Stats.  1901,  p.  413;  unconstitutional.  See  note, 
§  4,  ante. 

§  1997.  Employment,  how  terminated.  Every  employment 
is  terminated : 

1.  By  the  expiration  of  its  appointed  term  ; 

2.  By  the  extinction  of  its  subject ; 

3.  By  the  death  of  the  employee ;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 


§  2001  CIVIL  CODE.  592 

Termination  of  employment.:   See  ante,  §  1996. 
Termination  of  agency,  generally:   See  post,  §§  2355  et  seq. 
Legislation  §  1997.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1027. 

§  1998.  Continuance  of  service  in  certain  cases.  An  em- 
ployee, unless  the  term  of  his  service  has  expired,  or  unless  he 
has  a  right  to  discontinue  it  at  any  time  without  notice,  must 
continue  his  service  after  notice  of  the  death  or  incapacity  of 
his  employer,  so  far  as  is  necessary  to  protect  from  serious 
injury  the  interests  of  the  employer's  successor  in  interest, 
until  a  reasonable  time  after  notice  of  the  facts  has  been  com- 
municated to  such  successor.  The  successor  must  compensate 
the  employee  for  such  service  according  to  the  terms  of  the 
contract  of  employment. 

Legislation  §  1998.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1028. 

§  1999.  Terms  of  employment.  An  employment,  having  no 
specified  term,  may  be  terminated  at  the  will  of  either  party, 
on  notice  to  the  other.  Employment  for  a  specified  term  shall 
mean  an  employment  for  a  period  greater  than  one  month. 
[Amendment  approved  1915;  Stats.  1915,  p.  720.] 

Legislation  §  1999.     1.  Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1029.     As  enacted  in  1872  it  read:  "An  employment 

having  no  specified  term  may  be  terminated  at  the  will  of  either  party, 

on  notice  to  the  other,  except  where  otherwise  provided  by  this  title." 

2.  Amended  by  Stats.  1915,  p.  720. 

§  2000.  Termination  by  employer.  An  employment,  for  a 
specified  term,  may  be  terminated  at  any  time  by  the  employer, 
in  case  of  any  willful  breach  of  duty  by  the  employee  in  the 
course  of  his  employment,  or  in  case  of  his  habitual  neglect 
of  his  duty  or  continued  incapacity  to  perform  it.  [Amend- 
ment approved  1915;  Stats.  1915,  p.  720.J 

Servant,  when  may  be  discharged:  See  post,  §  2015. 
Seaman,  when  may  be  discharged:  See  post,  §  2050. 
Seaman,  wrongful  discharge  of:  Post,  §  2057. 

Legislation  §  2000.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1030.  As  enacted  in  1S72,  it  read:  "An  em- 
ployment, even  for  a  specified  term,  may  be  terminated  at  any  time 
by  the  employer,  in  case  of  any  willful  breach  of  duty  by  the  employee 
in  the  course  of  his  employment,  or  in  case  of  his  habitual  neglect  of 
his  duty  or  continued  incapacity  to  perform  it." 
2.  Amended  by  Stats.  1915,  p.  720. 

§  2001.  Termination  by  employee.  An  employment,  for  a 
specified  term,  may  be  terminated  by  the  employee  at  any  time, 
in  case  of  any  willful  or  permanent  breach  of  the  obligations 
of  his  employer  to  him  as  an  employee.  [Amendment  ap- 
proved 1915;  Stats.  1915,  p.  720.] 

Employee's  compensation  in  such  case:   See  post,  §  2003. 


2004.  [New.]  Deducting  From  Pay  of  Employees  Because 
of  Tardiness.  There  shall  not  be  deducted  from  the  wages  of  an 
employee,  on  account  of  the  employee's  coming  late  to  work,  a 
sum  in  excess  of  the  proportionate  wage  which  would  have  been 
earned  during  the  time  actually  lost;  provided,  that  for  a  loss 
of  time  less  than  thirty  minutes  a  half  hour's  wage  may  be 
deducted.  (In  effect  90  days  from  and  after  April  29,  1921. 
Stats.   1921,  Chap.  901.)  Civ.  Code,  1921. 


593  MASTER    AND   SERVANT,  §  2003 

Legislation  §  2001,  1,  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1031.  As  enacted  in  1872,  it  read:  "An  employment, 
even  for  a  specified  term,  may  be  terminated  by  the  employee  at  any 
time,  in  case  of  any  willful  or  permanent  breach  of  the  obligations  of 
his  employer  to  him  as  an  employee." 

2.  Amended  by  Stats.  1915,  p.  720. 

§  2002,  Compensation  due  on  dismissal.  An  employee  who 
is  not  employed  for  a  specified  term,  dismissed  by  his  employer, 
is  entitled  to  compensation  for  services  rendered  up  to  the 
time  of  such  dismissal.  [Amendment  approved  1915 ;  Stats. 
1915,  p.  720.] 

Discharging  servant:   See  post,  §  2015, 

Legislation  §  2002,  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1032.  As  enacted  in  1872  the  section  read: 
"An  employee,  dismissed  by  his  employer  for  good  cause  is  not  entitled 
to  any  compensation  for  services  rendered  since  the  last  daj'  upon 
which  a  payment  became  due  to  him  under  the  contract." 
2.  Amended  by  Stats.  1915,  p.  720. 

§  2003,  Compensation  due  on  quitting.  An  employee  who 
is  not  employed  for  a  specified  term  and  who  quits  the  service 
of  his  employer,  is  entitled  to  compensation  for  services  ren- 
dered up  to  the  time  of  such  quitting.  [Amendment  approved 
1915;  Stats.  1915,  p.  720.] 

Terminating  employment  by  employee:  See  ante,  §  2001. 
Legislation  §  2003,  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1033.  As  enacted  in  1872  the  section  read: 
"An  employee  who  quits  the  service  of  his  employer  for  good  cause  is 
entitled  to  such  proportion  of  the  compensation  which  would  become 
due  in  case  of  full  performance  as  the  services  which  he  has  already 
rendered  bear  to  the  services  which  he  was  to  render  as  full  perform-' 
ance." 

2.  Amended  by  Stats.  1915,  p.  720. 
200'^ 

CHAPTER  II. 

Particular  Employments. 

Article  I.  Master    and    Servant.     §§2009-2015. 

II.  Agents.     §§  2019-2022. 

III.  Factors.     §§2026-2030. 

IV.  Ship-masters.     §§  2034-2044. 

V.  Mates  and  Seamen.     §§  2048-2066. 

VI.  Ships'   Managers.     §§  2070-2072. 

AETICLE  I. 
Master  and  Servant. 
§  2009.     Servant,  what. 
§  2010.     Term   of  hiring. 
§  2011.     Same. 
§  2012.     Eenewal  of  hiring. 
§  2013.     Time  of  service. 

§  2014.     Servant  to  pay  over  without   demand. 
§  2015.     When  servant  may  be  discharged. 
Civ.  Code— 38 


§  2014  CIVIL  CODE.  594 

§  2009.  Servant,  what.  A  servant  is  one  avIio  is  employed 
to  render  personal  service  to  his  employer,  otherwise  than  in 
the  pursuit  of  an  independent  calling,  and  who  in  such  service 
remains  entirely  under  the  control  and  direction  of  the  latter, 
who  is  called  his  master. 

Employer  and  employee:   See,  generally,  ante,  §§  1965  et  seq. 
Obligations  of  employer:   Ante,  §§  1969  et  seq. 
Obligations  of  employee:   Ante,  §§1975  et  seq. 

Legislation  §  2009.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1034. 

§  2010.  Term  of  hiring".  A  servant  is  presumed  to  have 
been  hired  for  such  length  of  time  as  the  parties  adopt  for  the 
estimation  of  wages.  A  hiring  at  a  yearly  rate  is  presumed  to 
be  for  one  year ;  a  hiring  at  a  daily  rate,  for  one  day ;  a  hiring 
by  piecework,  for  no  specified  term. 

Legislation  §  2010.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1035. 

§  2011.  Same.  In  the  absence  of  any  agreement  or  custom 
as  to  the  term  of  service,  the  time  of  payment,  or  rate  or  value 
of  wages,  a  servant  is  presumed  to  be  hired  by  the  month,  at  a 
monthly  rate  of  reasonable  wages,  to  be  paid  Avhen  the  service 
is  performed. 

Presumption  as  to  compensation:  See  ante,  §  1980;  post,  §  2012. 
Legislation  §  2011.     Enacted  March  21,  1872.     The  code  commission- 
ers say:  "Substitute  for  N.  Y.  Civ.  Code,  §  1036." 

§  2012.  Renewal  of  hiring*.  Where,  after  the  expiration  of 
an  agreement  respecting  the  wages  and  the  term  of  service,  the 
parties  continue  the  relation  of  master  and  servant,  they  are 
presumed  to  have  renewed  the  agreement  for  the  same  wages 
and  term  of  service. 

Presumption  as  to  employment:  See  ante,  §§  1980,  2012. 
Legislation  §  2012.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code.  §  1037. 

§  2013.  Time  of  service.  The  entire  time  of  a  domestic 
servant  belongs  to  the  master ;  and  the  time  of  other  servants 
to  such  extent  as  is  usual  in  the  business  in  which  they  serve, 
not  exceeding  in  any  case  ten  hours  in  the  day. 

Legislation  §  2013.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1038. 

§  2014.  Servant  to  pay  over  without  demand.  A  servant 
must  deliver  to  his  master,  as  soon  as  with  reasonable  diligence 
he  can  find  him,  everything  that  he  receives  for  his  account, 
without  demand ;  but  he  is  not  bound,  without  orders  from  his 
master,  to  send  anything  to  him  through  another  person. 


2013.     Repealed.     (In  effect   90   days   from   and  after  April   29, 
1921.     Stats.    1921,    Chap.    99.)  Civ.    Code,    1521. 


595  AGENTS.  §2021 

One  who  appropriates  to  his  own  use  property  of  his  employer  isi 
guilty  of  embezzlement;   Pen.  Code,  §  508. 

Employee  not  bound  to  deliver  to  employer  without  demand:   See 

ante,  §  1987. 

Sending  things  from  a  distance:  See  ante,  §  1987. 

Duty  to  account:   See  ante,  §  1986. 

Legislation  §  2014.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1039. 

§  2015.  When  servant  may  be  discharged.  A  master  may 
discharge  any  servant,  other  than  an  apprentice,  whether 
engaged  for  a  fixed  term  or  not ; 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  service,  or 
of  gross  immorality,  though  unconnected  with  the  same ;  or, 

2.  If,  being  employed  about  the  person  of  the  master,  or  in  a 
confidential  position,  the  master  discovers  that  he  has  been 
guilty  of  misconduct,  before  or  after  the  commencement  of  his 
service,  of  such  a  nature  that,  if  the  master  had  known  or  con- 
templated it,  he  would  not  have  so  employed  him. 

Termination  of  employment:  See  ante,  §§  2009  et  seq. 
Compensation  of  employee  dismissed  for  cause:  See  ante,  §  2002. 
Legislation  §  2015.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1040. 

ARTICLE  II. 

Agents. 

§  2019.  Agent  to  conform  to  his  authority, 

§  2020.  Must  keep  his  principal  informed. 

§  2021.  Collecting  agent. 

§  2022.  Responsibility  of  subagent. 

§  2019.  Agent  to  conform  to  his  authority.  An  agent  must 
not  exceed  the  limits  of  his  actual  authority,  as  defined  by  the 
title  on  agency. 

Agency:  Post,  §§  2295  et  seq. 
Actual  authority:  Post,  §  2316. 
Ostensible  authority:  Post,  §  2317. 

Legislation  §  2019.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1041. 

§  2020.  Must  keep  his  principal  informed.  An  agent  must 
use  ordinary  diligence  to  keep  his  principal  informed  of  his 
acts  in  the  course  of  the  agency. 

Legislation  §  2020.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1042. 

§  2021.  Collecting  agent.  An  agent  employed  to  collect  a 
negotiable  instrument  must  collect  it  promptly,  and  take  all 
measures  necessary  to  charge  the  parties  thereto,  in  case  of  its 
dishonor;  and,  if  it  is  a  bill  of  exchange,  must  present  it  for 
acceptance  with  reasonable  diligence. 

Legislation  §  2021.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1043. 


§  2029  CIVIL  CODE.  596 

§  2022.     Responsibility  of  subageiit.     A  mere  agent  of  an 
agent  is  not  responsible  as  snch  to  the  principal  of  the  latter. 
Legislation  §  2022.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1044. 

AETICLE  III. 
Factors. 
§  2026.     Factor,  what. 
§  2027.     Obedience  required  from  factor. 
§  2028.     Sales  on  credit. 

§  2029.     Liability  of  factor  under  guaranty  commission. 
§  2030.     Factor  cannot  relieve  himself  from  liability. 

§  2026.  Factor,  what.  A  factor  is  an  agent  Avho,  in  the  pur- 
suit of  an  independent  calling,  is  employed  by  another  to  sell 
property  for  him,  and  is  vested  by  the  latter  with  the  possession 
or  control  of  the  property,  or  authorized  to  receive  payment 
therefor  from  the  purchaser. 

Factor's  authority:  See  i>ost,  §§  2368,  2369. 

Factor's  power  to  pledge  principal's  goods:  See  post,  §§  2368,  2991. 
Legislation  §  2026.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1045. 

§  2027.  Obedience  required  from  factor.  A  factor  must 
obey  the  instructions  of  his  principal  to  the  same  extent  as 
any  other  employee,  notwithstanding  any  advances  he  may 
have  made  to  his  principal  upon  the  property  consigned  to  him, 
except  that  if  the  principal  forbids  him  to  sell  at  the  market 
price,  he  may,  nevertheless,  sell  for  his  reimbursement,  after 
giving  to  his  principal  reasonable  notice  of  his  intention  to  do 
so,  and  of  the  time  and  place  of  sale,  and  proceeding  in  all 
respects  as  a  pledgee. 

Obedience  required  from  employees,  generally:   Ante,  §  1981. 

Legislation  §  2027.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1046. 

§  2028.  Sales  on  credit.  A  factor  may  sell  property  con- 
signed to  him  on  such  credit  as  is  usual;  but,  having  once 
agreed  with  the  purchaser  upon  the  term  of  credit,  may  not 
extend  it. 

Authority  to  sell  on  credit:  Post,  §  2368. 

Legislation  §  2028.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1047. 

§  2029.     Liability  of  factor  under  guaranty  commission.    A 

factor  who  charges  his  principal  with  a  guaranty  commission 
upon  a  sale,  thereby  assumes  absolutely  to  pay  the  price  when 
it  falls  due,  as  if  it  were  a  debt  of  his  own,  and  not  as  a  mere 
guarantor  for  the  purchaser ;  but  he  does  not  thereby  assume 
any  additional  responsibility  for  the  safety  of  his  remittance  of 
the  proceeds. 


597  SHIP-MASTERS.  §  2037 

Legislation  §  2029.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1048. 

§2030.  Factor  cannot  relieve  himself  from  liability.  A 
factor  Avho  receives  property  for  sale,  under  a  general  agree- 
ment or  usage  to  guarantee  the  sales  or  the  remittance  of  the 
proceeds,  cannot  relieve  himself  from  responsibility  therefor 
without  the  consent  of  his  principal. 

Legislation  §  2030.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1049. 

ARTICLE  IV. 

Ship-masters. 

§  2034.  Appointment  of  master. 

§  2035.  When  must  be  on  board. 

§  2036.  Pilotage. 

§  2037.  Power  of  master  over  seamen. 

§  2038.  Power  of  master  over  passengers. 

§  2039.  Impressing  private  stores. 

§  2040.  When  may  abandon  the  ship. 

§  2041.  Duties  on   abandonment. 

§  2042.  When  master  cannot  trade  on  his  own  account. 

§  2043.  Care  and  diligence. 

§  2044.  Authority  of  master. 

§  2034.  Appointment  of  master.  The  master  of  a  ship  is 
appointed  by  the  owner,  and  holds  during  his  pleasure. 

Legislation  §  2034.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  1050. 

§  2035.  When  must  be  on  board.  The  master  of  a  ship  is 
bound  to  be  always  on  board  when  entering  or  leaving  a  port, 
harbor,  or  river. 

Legislation  §  2035.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1051. 

§  2036.  Pilotag'e.  On  entering  or  leaving  a  port,  harbor,  or 
river,  the  master  of  a  ship  must  take  a  pilot  if  one  offers  him- 
self, and  while  the  pilot  is  on  board  the  navigation  of  the  ship 
devolves  on  him. 

Duties  of  pilots   and   pilot   commissioners:    See   Pol.    Code,  §§  2429- 
2491. 

Legislation  §  2036.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1052. 

§  2037.  Power  of  master  over  seamen.  The  master  of  a  ship 
may  enforce  the  obedience  of  the  mate  and  seamen  to  his  law- 
ful commands  by  confinement  and  other  reasonable  corporal 
punishment,  not  prohibited  by  acts  of  Congress,  being  respon- 
sible for  the  abuse  of  his  power. 

Legislation  §  2037.     Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1053. 


§  2044  CIVIL  CODE.  598 

§  2038.     Power  of  master  over  passengers.     The  master  of  a 

ship  may  confine  any  person  on  board,  during  a  voyage,  for 

willful  disobedience  to  his  lawful  commands. 

Legislation  §  2038.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1054. 

§  2039.  Impressing  private  stores.  If,  during  a  voyage,  the 
ship's  supplies  fail,  the  master,  with  the  advice  of  the  officers, 
may  compel  persons  who  have  private  supplies  on  board  to 
surrender  them  for  the  common  want,  on  payment  of  their 
value,  or  giving  security  therefor. 

Legislation  §  2039.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1055. 

§  2040.  When  may  abandon  the  ship.  The  master  of  a  ship 
must  not  abandon  it  during  the  voyage,  Avithout  the  advice  of 
the  other  officers. 

Legislation  §  2040.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1056. 

§  2041.  Duties  on  abandonment.  The  master  of  a  ship,  upon 
abandoning  it.  must  carry  Avith  him,  so  far  as  it  is  in  his  power, 
the  money  and  the  most  valuable  of  the  goods  on  board,  under 
penalty  of  being  personally  responsible.  If  the  articles  thus 
taken  are  lost  from  causes  beyond  his  control,  he  is  exonerated 
from  liability. 

Legislation  §  2041.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1057. 

§  2042.     When  master  cannot  trade  on  his  own  account. 

The  master  of  a  ship,  Avho  engages  for  a  common  profit  on  the 

cargo,  must  not  trade  on  his  OAvn  account,  and  if  he  does,  he 

must  account  to  his  employer  for  all  profits  thus  made  by  him. 

Legislation  §  2042.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1058. 

§  2043.  Care  a.nd  diligence.  The  master  of  a  ship  must  use 
great  care  and  diligence  in  the  performance  of  his  duties,  and 
is  responsible  foi'  all  damage  occasioned  by  his  negligence,  how- 
ever slight. 

Shipmaster's  liability  for  negligence:   See  post,  §§  2383,  2384. 
Legislation  §  2043.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1059. 

§  2044.  Authority  of  master.  The  authority  and  liability  of 
the  master  of  a  ship,  as  an  agent  for  the  owners  of  the  ship  and 
cargo,  are  regulated  by  the  title  on  agency. 

Agency,  in  general:  Post,  §§  2295  et  seq. 

Bottomry.     Master  may  hypothecate  upon:   Post,  §§  3019  et  seq. 
Respondentia.     Master  may  hypothecate  upon:  Post,  §§  3038  et  seq. 
Legislation  ^  2044.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1060. 


599  MATES  AND  SEAMEN.  §  2051 

ARTICLE  V. 

Mates  and  Seamen. 

§  2048.  Mate,  what. 

§  2049.  Seamen,  what. 

§  20.50.  Mate  and  seamen,  how  engaged  and  discharged. 

§  2051.  Unseaworthy   vessel. 

§  2052.  Seamen  not  to  lose  wages  or  lien  by  agreement. 

§  2053.  Special  agreement  with  seamen. 

§  2054.  Wages  depend  on  freightage. 

§  2055.  When  wages,  etc.,  begin. 

§  2056.  Wages,  where  voyage  is  broken  np  before  departure. 

§  2057.  Wrongful  discharge. 

§  2058.  Wages,  when  not  lost  by  wreck. 

§  2059.  Certificate. 

§  2060.  Disabled  seamen. 

§  2061.  Maintenance  of  seamen  during  sickness. 

§  2062.  Death  on  the  voyage. 

§  2063.  Theft,  etc.,  forfeits  wages. 

§  2064.  Seamen  cannot   ship  goods. 

§  2065.  Embezzlement  and  injuries.     [Repealed.] 

§  2066.  Law  governing  seamen. 

§  2048.  Mate,  what.  The  mate  of  a  ship  is  the  officer  next 
in  rank  to  the  master,  and  in  case  of  the  master's  disability  he 
must  take  his  place.  By  so  doing  he  does  not  lose  any  of  his 
rights  as  mate. 

Legislation  §  2048.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1061. 

§  2049.  Seamen,  what.  All  persons  employed  in  the  naviga- 
tion of  a  ship,  or  npon  a  voyage,  other  than  the  master  and 
mate,  are  to  be  deemed  seamen  within  the  provisions  of  this 
code. 

Legislation  §  2049.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1062. 

§  2050.     Mate  and  seamen,  how  engaged  and  discharged. 

The  mate  and  seamen  of  a  ship  are  engaged  by  the  master,  and 
may  be  discharged  by  him  at  any  period  of  the  voyage,  for 
willful  and  persistent  disobedience  or  gross  disqualification, 
but  cannot  otherwise  be  discharged  before  the  termination  of 
the  voyage. 

Legislation  §  2050.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  8  1063. 

§  2051.     Unseaworthy  vessel.     A  mate  or  seamen  [seaman] 
is  not  bound  to  go  to  sea  in  a  ship  that  is  not  seaworthy ;  and 
if  there  is  reasonable  doubt  of  its  seaworthiness,  he  may  refuse 
to  proceed  until  a  proper  survey  has  been  had. 
Seaworthiness,  defined:   Post,  §  2682. 

Legislation  §  2051.     Enacted  March  21,  1872;  base^d  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1064. 


§  2058  CIVIL  CODE.  600 

§  2052.     Seamen  not  to  lose  wages  or  lien  by  agreement.     A 

seaman  cannot,  by  reason  of  any  agreement,  be  deprived  of 
his  lien  upon  the  ship,  or  of  any  remedy  for  the  recovery  of  his 
wages  to  which  he  would  otherAvise  have  been  entitled.  Any 
stipulation  by  which  he  consents  to  abandon  his  right  to  wages 
in  case  of  the  loss  of  the  ship,  or  to  abandon  any  right  he  may 
have  or  obtain  in  the  nature  of  salvage,  is  void. 

Wages  in  case  of  loss  of  ship:  Post,  §  2058. 

Legislation  §  2052.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1065. 

§  2053.  Special  agreement  with  seamen.  No  special  agree- 
ment entered  into  by  a  seaman  can  impair  any  of  his  rights,  or 
add  to  any  of  his  obligations,  as  defined  by  law,  unless  he  fully 
understands  the  effect  of  the  agreement,  and  receives  a  fair 
compensation  therefor. 

Legislation  §  2053.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1066. 

§  2054.  Wages  depend  on  freightage.  Except  as  hereinafter 
provided,  the  wages  of  seamen  are  due  Avhen,  and  so  far  only 
as,  freightage  is  earned,  unless  the  loss  of  freightage  is  owing 
to  the  fault  of  the  owner  or  master. 

Legislation  §  2054.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1067.  " 

§  2055,  When  wages,  etc.,  begin.  The  right  of  a  mate  or 
seaman  to  wages  and  provisions  begins  either  from  the  time 
he  begins  work,  or  from  the  time  specified  in  the  agreement  for 
his  beginning  work,  or  from  his  presence  on  board,  whichever 
first  happens. 

Legislation  §  2055.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

X.  Y.  Civ.  Code,  §  1068. 

§  2056.     Wages,  where  voyage  is  broken  up  before  departure. 

Where  a  voyage  is  broken  up  before  departure  of  the  ship,  the 

seamen  must  be  paid  for  the  time  they  have  served,  and  may 

retain  for  their  indemnity  such  advances  as  they  have  received; 

Legislation  §  2056.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1069. 

§  2057.  Wrongful  discharge.  When  a  mate  or  seaman  is 
wrongfull}^  discharged,  or  is  driven  to  leave  the  ship  by  the 
cruelty  of  the  master  on  the  voyage,  it  is  then  ended  Avith  re- 
spect to  him,  and  he  may  thereupon  recover  his  full  wages. 

Legislation  §  2057.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  1070. 

§  2058.  Wages,  when  not  lost  by  wreck.  In  case  of  loss  or 
wreck  of  the  ship,  a  seaman  is  entitled  to  his  wages  up  to  the 


601  MATES   AND    SEAMEN.  §  2064 

time  of  the  loss  or  wreck,  whether  freightage  has  been  earned 
or  not,  if  he  exerts  himself  to  the  utmost  to  save  the  ship,  cargo, 
and  stores. 

Legislation  §  2058.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  1071. 

§2059.  Certificate.  A  certificate  from  the  master  or  chief 
surviving  officer  of  a  ship,  to  the  effect  that  a  seaman  exerted 
himself  to  the  utmost  to  save  the  ship,  cargo,  and  stores,  is  pre- 
sumptive evidence  of  the  fact. 

Legislation  §  2059.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1072.  » 

§  2060.  Disabled  seamen.  Where  a  mate  or  seaman  is  pre- 
vented from  rendering  service  by  illness  or  injury,  incurred 
without  his  fault  in  the  discharge  of  his  duty  on  the  voyage, 
or  by  being  wrongfully  discharged,  or  by  a  capture  of  the  ship, 
he  is  entitled  to  wages  notwithstanding ;  but  in  case  of  a 
capture,  a  ratable  deduction  for  salvage  is  to  be  made. 

Legislation  §  2060.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y,  Civ.  Code,  §  1073. 

§  2061.  Maintenance  of  seamen  during  sickness.  Jf  a  mate 
or  seaman  becomes  sick  or  disabled  during  the  voyage,  without 
his  fault,  the  expense  of  furnishing  him  with  suitable  medical 
advice,  medicine,  attendance,  and  other  provision  for  his 
wants,  must  be  borne  by  the  ship  till  the  close  of  the  voyage. 
Legislation  §  2061.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1074. 

§  2062.  Death  on  the  voyage.  If  a  mate  or  seaman  dies 
during  the  voyage,  his  personal  representatives  are  entitled 
to  his  wages  to  the  time  of  his  death,  if  he  Avould  have  been 
entitled  to  them  had  he  lived  to  the  end  of  the  voyage. 

Legislation  §  2062.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1075. 

§2063.  Theft,  etc.,  forfeits  wages.  Desertion  of  the  ship 
without  cause,  or  a  justifiable  discharge  by  the  master  during 
the  voyage,  for  misconduct,  or  a  theft  of  any  part  of  the  cargo 
or  appurtenances  of  the  ship,  or  a  willful  injury  thereto  or 
to  the  ship,  forfeits  all  wages  due  for  the  voyage  to  a  mate  or 
seaman  thus  in  fault. 

Legislation  §  2063.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1076. 

§  2064.  Seamen  cannot  ship  goods.  A  mate  or  seaman  may 
not,  under  any  pretext,  ship  goods  on  his  own  account  without 
permission  from  the  master. 

Legislation  §  2064.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1077. 


§  2078  CIVIL  CODE.  602 

§2065.     Embezzlement  and  injuries.     [Repealed  1874;  Code 

Amdts.  1873-74,  p.  247.] 

Legislation  §  2065.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  247. 

§  2066.  Law  governing-  seamen.  The  shipment  of  officers 
and  seamen,  and  their  rights  and  dnties,  are  further  regulated 
by  acts  of  Congress. 

Legislation  §  2066.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1079. 

AETICLE  VI. 

Ships'  Managers. 
§  2070.     Manager,  what. 
§  2071.     Duties  of  manager. 
§  2072.     Compensation. 

§  2070.  Manager,  what.  The  general  agent  for  the  owners, 
in  respect  to  the  care  of  a  ship  and  freight,  is  called  the  man- 
ager. If  he  is  a  part-owner,  he  is  also  called  the  managing 
owner. 

Legislation  §  2070.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1080. 

§  2071.  Duties  of  manager.  Unless  otherwise  directed,  it 
is  the  duty  of  the  manager  of  a  ship  to  provide  for  the  complete 
seaworthiness  of  a  ship ;  to  take  care  of  it  in  port ;  to  see  that 
it  is  provided  with  necessary  papers,  with  a  proper  master, 
mate,  and  crew%  and  supplies  of  provisions  and  stores. 

Legislation  §  2071.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1081. 

§  2072.  Compensation.  A  managing  owner  is  presumed  to 
have  no  right  to  compensation  for  his  own  services. 

Legislation  §  2072.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1082. 

CHAPTER  III. 

Service  Without  Employment. 

§  2078.     Voluntary    interference    with    property. 
§  2079.     Salvage. 

§  2078.  Voluntary  interference  v^dth  property.  One  Avho 
officiously,  and  without  the  consent  of  the  real  or  apparent 
ownier  of  a  thing,  takes  it  into  his  possession  for  the  purpose  of 
rendering  a  service  about  it,  must  complete  such  service,  and 
use  ordinary  care,  diligence,  and  reasonable  skill  about  the 
same.  He  is  not  entitled  to  any  compensation  for  his  service  or 
expenses,  except  that  he  may  deduct  actual  and  necessary  ex- 
penses incurred  by  him  about  such  service  from  any  profits 


608  CARRIAGE   IN    GENERAL.  §  2085 

which  his  service  has  caused  the  thing  to  acquire  for  its  owner, 
and  must  account  to  the  oAvner  for  the  residue. 

Empl03mieiit  without  reward:  Ante,  §§  1975  et  seq. 

Gratuitous  carriers:  Post,  §  2089. 

Legislation  §  2078.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1083. 

§  2079.  Salvage.  Any  person,  other  than  the  master,  mate, 
or  a  seaman  thereof,  who  rescues  a  ship,  her  appurtenances  or 
cargo,  from  danger,  is  entitled  to  a  reasonable  compensation 
therefor,  to  be  paid  out  of  the  property  saved.  He  has  a  lien 
for  such  claim,  which  is  regulated  by  the  title  on  liens ;  but  no 
claim  for  salvage,  as  such,  can  accrue  against  any  vessel,  or 
her  freight,  or  cargo,  in  favor  of  the  owners,  officers,  or  crew 
of  another  vessel  belonging  to  the  same  owners ;  but  the  actual 
cost  at  the  time  of  the  services  rendered  by  one  such  vessel  to 
another,  when  in  distress,  are  payable  through  a  general  aver- 
age contribution  on  the  property  saved.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  247.] 

Legislation  §  2079.     1.  Enacted    March    21,    1872    (based    on    Field's 

Draft,  N.  Y.  Civ.  Code,  §  1084),  and  then  ended  with  the  words  "title 

on  liens,"  in  second  sentence. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  247. 

3.  Amendment  by  Stats.  1901,  p.  413;  unconstitutional.  See  note, 
§  4,  ante. 


TITLE  VII. 

Carriage. 

Chapter  I.  Carriage  in  General.     §§  2085-2090. 

II.  Carriage   of  Persons.     Articles  I,  II.     §§  2096-2104. 

III.  Carriage   of  Property.     Articles  I-V.     §§  2110-2155. 

IV.  Carriage  of  Messages.     §§  2161,  2162. 

V.  Common    Carriers.     Articles   I-IV.     §§  2168-2209. 

CHAPTER  I. 

Carriage  in  General. 

§  2085.  Contract  of  carriage. 

§  2086.  Different  kinds  of  carriers. 

§  2087.  Marine  and  inland   carriers,  what. 

§  2088.  Carriers  by  sea. 

§  2089.  Obligations  of  gratuitous  carriers. 

§  2090.  Obligations  of  gratuitous  carrier  who  has  begun  to  carry. 

§  2085.  Contract  of  carriage.  The  contract  of  carriage  is  a 
contract  for  the  conveyance  of  property,  persons,  or  messages, 
from  one  place  to  another. 

Owner  is  liable  for  acts  of  driver:  Pol.  Code,  §  293G. 

Common  carriers,  defined:  Post,  §  2168. 

Carriage  of  property:  Post,  §§  2110  et  seq. 


§  2090  CIVIL  CODE.  604 

Carriage  of  persons:  Post,  §§  2096  et  seq. 
Carriage  of  messages:  Post,  §§  2161,  2162,  2207  et  seq. 
Legislation  §  2085.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1085. 

§2086.     Different  kinds  of  carriers.     Carriage  is  either: 

1.  Inland ;  or, 

2.  Marine. 

Legislation  §  2086.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1086. 

§  2087.  Marine  and  inland  carriers,  what.  Carriers  upon 
the  o.cean  and  upon  arms  of  the  sea  are  marine  carriers.  All 
others  are  inland  carriers. 

Inland  carriers  of  property,  rights  and  duties  of:  Post,  §§  2194  et 
seq. 

Marine  carriers,  rights  and  duties  of:  Post,  §§  2148  et  seq.;  2197  et 
seq. 

Legislation  §  2087.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1087. 

§  2088.  Carriers  by  sea.  Rights  and  duties  peculiar  to  car- 
riers by  sea  are  defined  by  acts  of  Congress. 

Liahility  of  marine  carriers:  See  post,  §§  2197,  2198. 

Rights  and  duties  of  carriers,  generally:  Post,  §§  2180  et  seq.,  2194 
et  seq. 

General  average:  Post,  §§  2148  et  seq. 

Legislation  §  2088.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1089. 

§  2089.  Obligations  of  gratuitous  carriers.  Carriers  with- 
out reward  are  subject  to  the  same  rules  as  employees  -without 
reward,  except  so  far  as  is  otherwise  provided  by  this  title. 

Employees  without  reward:  Ante,  §§  1975  et  seq. 
Service  without  emplojrment:  Ante,  §§  2078  et  seq. 
Gratuitous  carriers:  See  post,  §§  2090,  2096,  2114. 
Legislation  §  2089.     Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1090. 

§  2090.  Obligations  of  gratuitous  carrier  who  has  begun  to 
carry.  A  carrier  without  reward,  who  has  begun  to  perform 
his  undertaking,  must  complete  it  in  like  manner  as  if  he  had 
received  a  reward,  unless  he  restores  the  person  or  thing  car- 
ried to  as  favorable  a  position  as  before  he  commenced  the 
carriage. 

Compare  with  §§1975,  1976,  ante;   §2096,  post. 
Gratuitous  carriers:   See  ante,  §  2089;  post,  §§  2096,  2114. 
Legislation  §  2090.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1091. 


605  CARRIAGE  OF  PERSONS.  §  2102 

CHAPTER  II. 

Carriage  of  Persons. 

Article  I.     Gratuitous   Carriage   of   Persons.     §  2096. 
n.     Carriage  for  Eeward.     §§  2100-2104. 

AETICLE  I. 

Gratuitous   Carriage   of   Persons. 

§  2096.     Degree  of  care  required. 

§  2096.  Degree  of  care  required.  A  carrier  of  persons  with- 
out reward  must  use  ordinary  care  and  diligence  for  their  safe 
carriage. 

Duty  of  gratuitous  employee,  generally:   Ante,  §§  1975,  1976,  2090. 
Carriers  of  persons,  generally:  Post,  §§  2180  et  seq. 
Gratuitous  carriers:  See  ante,  §§  2089,  2090;  post,  §  2114. 
Legislation  §  2096.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1092. 

AETICLE  n. 

Carriage  for  Reward. 

§  2100.  General   duties  of   carrier. 

§  2101.  Vehicles. 

§  2102.  Not  to  overload  his  vehicle. 

§  2103.  Treatment  of  passengers. 

§  2104.  Eate  of  speed  and  delays. 

§  2100.  General  duties  of  carrier.  A  carrier  of  persons  for 
reward  must  use  the  utmost  care  and  diligence  for  their  safe 
carriage,  must  provide  everything  necessary  for  that  purpose, 
and  must  exercise  to  that  end  a  reasonable  degree  of  skill. 

Intoxicated  driver,  duty  to  discharge:  See  Pol.  Code,  §  2933. 
Driver  to  fasten  horses  while  standing:  See  Pol.  Code,  §  2934. 
Negligence  of  driver,  liability  of  owner  for:  See  Pol.  Code,  §  2936. 
Legislation  §  2100.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1093. 

§  2101.  Vehicles.  A  carrier  of  persons  for  reward  is  bound 
to  provide  vehicles  safe  and  fit  for  the  purposes  to  which  they 
are  put,  and  is  not  excused  for  default  in  this  respect  by  any 
degree  of  care. 

Legislation  §  2101.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1094. 

§  2102.  Not  to  overload  his  vehicle.  A  carrier  of  persons 
for  reward  must  not  overcrowd  or  overload  his  vehicle. 

Railroad  corporations  to  furnish  accommodations:   Ante,  §  483. 
Duty  not  to  overload:  See  post,  §  2185. 

Legislation  §  2102.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1095. 


§  2114  CIVIL  CODE.    .  606 

§  2103.  Treatment  of  passengers.  A  carrier  of  persons  for 
reward  must  give  to  passengers  all  such  accommodations  as  are 
usual  and  reasonable,"  and  must  treat  them  with  civility,  and 
give  them  a  reasonable  degree  of  attention. 

Legislation  §  2103.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1096. 

§  2104.  Rate  of  speed  and  delays.  A  carrier  of  persons  for 
reward  must  travel  at  a  reasonable  rate  of  speed,  and  without 
any  unreasonable  delay,  or  deviation  from  his  proper  route. 

Legislation  §  2104.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1097. 

CHAPTER  III. 

Carriage  of  Property. 

Article  I.  General  Definitions.     §2110. 

rr.  Obligations   of   the   Carrier.     §§  2114-2122. 

in.  Bill  of  Lading.     §§  2126-2132. 

IV.  Freightage.     §§  2136-2144. 

V.  General  Average.     §§  2148-2155. 

AETICLE  I. 

General   Definitions. 
§  2110.     Freight,  consignor,  etc.,  what. 

§  2110.  Freight,  consignor,  etc.,  what.  Property  carried  is 
called  freight;  the  rcAvard,  if  any,  to  be  paid  for  its  carriage 
is  called  freightage;  the  person  who  delivers  the  freight  to  the 
carrier  is  called  the  consignor ;  and  the  person  to  whom  it  is  to 
be  delivered  is  called  the  consignee. 

k 

Freightage  defined:  See  post,  §  2661. 
Freightage,  when  to  be  paid:  Post,  §§2136  et  seq. 
For  definition  of  bill  of  lading,  see  post,  §  2126. 

Legislation  §  2110.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1098. 

ARTICLE  II. 

Obligations  of  the  Carrier. 

§  2114.  Care  and  diligence  required  of  carriers. 

§  2115.  Carrier  to  obey  directions. 

§  2116.  Conflict  of  orders. 

§  2117.  Stowage,  deviation,  etc. 

§  2118.  Delivery  of  freight. 

§  2119.  Place  of  delivery. 

§  2120.  Notice  when  freight  not  delivered. 

§  2121.  When  consignee  does  not  accept. 

§  2122.  When  consignee  cannot  be  found.     [Repealed.] 

§  2114.  Care  and  diligence  required  of  carriers.  A  carrier 
of  property  for  reward  must  use  at  least  ordinary  care  and 


607    CARRIAGE  OF  PROPERTY.   OBLIGATIONS  OF  CARRIER.   §  2119 

diligence  in  the  performance  of  all  his  duties.  A  carrier  Avith- 
out  reward  must  use  at  least  slight  care  and  diligence. 

Gratuitous  carriers:  See  ante,  §§  2089,  2090,  2096. 

Legislation  §  2114.  Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1099. 

§  2115.  Carrier  to  obey  directions.  A  carrier  must  comply 
with  the  directions  of  the  consignor  or  consignee  to  the  same 
extent  that  an  employee  is  bound  to  comply  with  those  of  his 
employer. 

Employee's  duty  to  obey  employer:  Ante,  §  1981. 
Legislation  §  2115.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1100. 

§  2116.  Conflict  of  orders.  When  the  directions  of  a  con- 
signor and  consignee  are  conflicting,  the  carrier  must  comply 
with  those  of  the  consignor  in  respect  to  all  matters  except  the 
delivery  of  the  freight,  as  to  which  he  must  comply  with  the 
directions  of  the  consignee,  unless  the  consignor  has  specially 
forbidden  the  carrier  to  receive  orders  from  the  consignee  in- 
consistent Avith  his  own. 

Legislation  §  2116.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1101. 

§  2117.  Stowage,  deviation,  etc.  A  marine  carrier  must  not 
stow  freight  upon  deck  during  the  voyage,  except  where  it  is 
usual  to  do  so,  nor  make  any  improper  deviation  from  or  delay 
in  the  voyage,  nor  do  any  other  unnecessary  act  which  would 
avoid  an  insurance  in  the  usual  form  upon  the  freight. 

Legislation  §  2117.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ-.  Code,  §  1102. 

§  2118.  Delivery  of  freig"ht.  A  carrier  of  property  must 
deliver  it  to  the  consignee,  at  the  place  to  Avhich  it  is  addressed, 
in  the  manner  usual  at  that  place. 

Legislation  §  2118.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1103. 

§  2119.  Place  of  delivery.  If  there  is  no  usage  to  the  con- 
trary at  the  place  of  delivery,  freight  must  be  delivered  as 
follows : 

1.  If  carried  upon  a  raihvay  owned  or  managed  by  the  car- 
rier, it  may  be  delivered  at  the  station  nearest  to  the  place  to 
which  it  is  addressed ; 

2.  If  carried  by  sea  from  a  foreign  country,  it  may  be  de- 
livered at  the  wharf  where  the  ship  moors,  within  a  reasonable 
distance  from  the  place  of  address;  or,  if  there  is  no  Avharf,  on 
board  a  lighter  alongside  the  ship  ;  or, 


§  2126  CIVIL  CODE.  608 

3.  In  other  cases,  it  must  be  delivered  to  the  consignee  or  his 
agent,  personally,  if  either  can,  with  reasonable  diligence,  be 
found. 

Delivery  to  connecting  carrier:  Ante,  §  2201. 

Legislation  §  2119.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1104. 

§  2120.     Notice   when   freight   not   delivered.     If,   for   any 

reason,  a  carrier  does  not  deliver  freight  to  the  consignee  or 
his  agent  personally,  he  must  give  notice  to  the  consignee  of  its 
arrival,  and  keep  the  same  in  safety;  upon  his  responsibility  as 
a  warehouseman,  until  the  consignee  has  had  a  reasonable  time 
to  remove  it.  If  the  place  of  residence  or  business  of  the  con- 
signee be  unknown  to  the  carrier,  he  may  give  the  notice  by 
letter  dropped  in  the  nearest  postoffice.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  247.] 

Legislation  §  2120.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1105),  then  having,  in  first  sentence,  "carrier" 
instead  of  "warehouseman"  in  second  instance,  the  section  not  then 
having  the  second  sentence. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  247. 

§  2121.  When  consignee  does  not  accept.  If  a  consignee 
does  not  accept  and  remove  freight  within  a  reasonable  time 
after  the  carrier  has  fulfilled  his  obligation  to  deliver,  or  duly 
offered  to  fulfill  the  same,  the  carrier  may  exonerate  himself 
from  further  liability  by  placing  the  freight  in  a  suitable  ware- 
house, on  storage,  on  account  of  the  consignee,  and  giving 
notice  thereof  to  him.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  248.] 

Legislation  §  2121.     1.  Enacted    March    21,    1872    (based  on   Field's 
Draft,   N.   Y.   Civ.   Code,  §  1106),   the   final  words  of  the   section  then 
being,  "on  storage,  and  giving  notice  thereof  to  the  consignee." 
2,  Amended  by  Code  Amdts.  1873-74,  p.  248. 

§  2122.  When  consignee  cannot  be  found.  [Repealed  1874 ; 
Code  Amdts.  1873-74,  p.  248.] 

Legislation  §  2122.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  248. 

ARTICLE  III. 

Bill  of  Lading. 
§  2126.     Bill  of  lading,  what. 
§  2127.     Bill  of  lading  negotiable. 
§  2128.     Same. 

§  2129.     Effect  of  bill  of  lading  on  rights,  etc.,  of  carrier. 
§  2130.     Bills  of  lading  to  be  given  to  consignor. 
§  2131.     Carrier  exonerated  by  delivery  according  to  bill  of  lading. 
§  2132.     Carrier  may  demand  surrender  of  bill  of  lading  before  delivery. 

§  2126.  Bill  of  lading,  what.  A  bill  of  lading  is  an  instru- 
ment in  writing,  signed  by  a  carrier  or  his  agent,  describing  the 


UNIFORM  BILLS  OF  LADING  LAW. 


CIVIL    CODE, 

Article  III  of  Chapter  III  of  Title  VII  of  Part  IV  of  Division  ill 
of  the  Civil  Code  is  hereby  REPEALED;  provided,  hpwever,  that 
nothing  contained  herein  shall  be  construed  as  limiting  in  any 
way  the  powers  of  the  Railroad  Commission  under  the  Public 
Utilities  Act,  or  any  re-enactment,  revision  or  amendment  thereof. 

A  new  article  is  hereby  added  to  the  Civil  Code  to  be  numbered 
Article  III,  Chapter  III,  Title  VII,  of  Part  IV,  of  Division  III  and 
to  read  as  follows: 

[Article  III,  Chapter  III,  Title  VII,  Part  IV,  Division  III  (new)], 
(In  effect  90  days  from  and  after  April  22,  1919  Stats  1919 
Chap.   365.) 

ARTICLE   III. 
Bills  of  Lading-. 
Subdivision      L     Issue  of  bills  of  lading-. 
Subdivision    II.     Obligation  and  rights  of  carriers  upon  their  bills 

of  lading. 
Subdivision  IIL     Negotiation  and  transfer  of  bills, 
subdivision  IV.     Criminal  offenses, 
subdivision    V.     Interpretation. 

SUBDIVISION   1. 
Issue   of   Bills   of   Lading. 
Bills  governed  by  this  article. 
Form  of  bills.     Essential  terms. 
Form   of   bills.     What    terms   may   be   inserted. 
Definition   of   nonnegotiable   or   straight   bill. 
Definition   of   negotiable   or   order   bill. 
Negotiable  bills  must  not  be  issued  in  sets. 
Duplicate   negotiable  bills  must   be   so  marked. 
Nonnegotiable   bills   shall   be   so  marked. 
Insertion  of  name  of  person  to  be  notified. 
Acceptance  of  bill  indicates  assent  to  its  terms. 

2126.      Bills   Governed    by  This   Article.     Bills   of  lading  issued 
y  any  common  carrier  shall  be  governed  by  this  article. 


Jection 
Section 
Section 
Section 
lection 
lection 
lection 
lection 
ection 
ection 


2126. 

2126a. 

2126b. 

2126c. 

2126d. 

2126e. 

2126f. 

2126g. 

2126h. 

21261. 


Every    bill    must 


2126a.       Form    of    Bills;     Essential    Terms, 
-nbody  within  its  written  or  printed  terms— 

(a)  The  date  of  its  issue; 

(b)  The  name   of   the  person  from  whom   the  goods   have   been 
iceived; 

(c)  The  place  where  the  goods  have  been  received; 


[  2  ] 

(d)  The  place  to  which  the  goods  are  to  be  transported; 

(e)  A  statement  whether  the  goods  received  will  be  deliver* 
to  a  specified  person,   or  to  the  order  of  a  specified  person; 

(f)  A   description    of   the    goods    or    of   the    packages    containii 
them    which    may,    however,    be    in    such    general    terms    as    a 
referred  to  in   section   two  thousand  one  hundred  twenty-eight 
this  code;  and 

(g)  The  signature  of  the  carrier. 

A  negotiable  bill  shall  have  the  words  "order  of"  print< 
thereon  immediately  before  the  name  of  the  person  upon  who 
order  the  goods  received  are  deliverable. 

A  carrier  shall  be   liable   to  any   person  injured  thereby  for  tl 
damage   caused  by  the  omission  from  a   negotiable  bill   of  any 
the  provisions  required  in  this  section. 

2126b.       Form    of    Bills;    What    Terms    May    Be    Inserted. 
carrier  may  insert  in  a  bill,   issued  by  him,   any  other  terms  ai 
conditions,   provided  that  such  terms  and  conditions   shall  not — 

(a)  Be  contrary  to  law  or  public  policy,   or 

(b)  In  any  wise  impair  his  obligation  to  exercise  at  least  thi 
degree  of  care  In  the  transportation  and  safe-keeping  of  the  gooi 
entrusted  to  him  which  a  reasonably  careful  man  would  exerci 
in  regard  to  similar  goods  of  his  own. 

2126c.       Definition    of    Nonnegotiable    or    Straight    Bill.      A    b 
in  which  it  is  stated  that  the  goods  are  consigned  or  destined 
a  specified  person,  is  a  nonnegotiable  or  straight  bill. 

2126d.  Definition  of  Negotiable  or  Order  Bill.  A  bill  in  whii 
it  is  stated  that  the  goods  are  consigned  or  destined  to  the  ord 
of  any  person  named  in  such  bill,  is  a  negotiable  or  order  bill. 

Any  provision  in  such  a  bill  that  it  is  nonnegotiable  shall  n 
affect    its    negotiability    within    the    meaning    of    this    article. 

2126e.     Negotiable   Bills   Must   Not   Be   Issued   In   Sets.     Neg 

tiable  bills  issued  in  this  state  for  the  transportation  of  goods 
any  place  in  the  United  States  on  the  continent  of  North  Americ 
except  Alaska,   shall  not  be  issued  in  parts  or  sets. 

If  so  issued  the  carrier  issuing  them  shall  be  liable  for  failui 
to  deUver  the  goods  described  therein  to  any  one  who  purchases 
part  for  value  in  good  faith,  even  though  the  purchase  be  aft 
the  delivery  of  the  goods  by  the  carrier  to  a  holder  of  one  of  tl 
other  parts. 

2126f.  Duplicate  Negotiable  Bills  Must  Be  so  Marked.  WTk 
more  than  one  negotiable  'bill  is  issued  in  this  state  for  the  san 


[  3  ] 

joods  to  be  transported  to  any  place  in  the  United  States  on  tlie 
?ontinent  of  North  America,  except  Alaska,  the  word  "duplicate" 
)r  some  other  word  or  words  indicating  that  the  document  is  not 
m  original  bill  shall  be  placed  plainly  upon  the  face  of  every  such 
Jill,  except  the  one  first  issued.  A  carrier  shall  be  liable  for  the 
Jamage  caused  by  his  failure  so  to  do  to  any  one  who  has  pur- 
chased the  bill  for  value  in  good  faith  as  an  original,  even  though 
:he  purchase  be  after  the  delivery  of  the  goods  by  the  carrier  to 
:he  holder  of  the  original  bill. 

2126g.  Non-Negotiable  Bills  Shall  Be  so  Marked.  A  non- 
legotiable  bill  shall  have  placed  plainly  upon  its  face  by  the 
carrier  issuing  it   "nonnegotiable"   or   "not   negotiable." 

This  section  shall  not  apply,  however,  to  memoranda  or 
icknowledgments   of  an  informal  character. 

21261i.  Insertion  of  Name  of  Person  to  Be  Notified.  The 
nsertion  in  a  negotiable  bill  of  the  name  of  a  person  to  be 
lotified  of  the  arrival  of  the  goods  shall  not  limit  the  negotiability 
3f  the  bill,  or  constitute  notice  to  a  purchaser  thereof  of  any 
■ights  or  equities  of  such  person  in  the  goods. 

21261.  Acceptance  of  Bill  Indicates  Assent  to  Its  Terms. 
Except  as  otherwise  provided  in  this  article  where  a  consignor 
receives  a  bill  and  makes  no  objection  to  its  terms  or  conditions 
it  the  time  he  receives  it,  neither  the  consignor  nor  any  person 
ivho  accepts  delivery  of  the  goods,  nor  any  person  who  seeks  to 
enforce  any  provision  of  the  bill,  shall  be  allowed  to  deny  that 
tie  is  bound  by  such  terms  and  conditions,  so  far  as  they  are  not 
contrary  to  law  or  public  policy. 

SUBDIVISION  II. 
Obligations    and    Rights    of    Carriers    Upon    Their    Bills    of    Lading. 
Section  2127.       Obligation   of   carrier   to   deliver. 
Section  2127a.     Justification   of   carrier  in   delivering. 
Section  2127b.     Carrier's   liability   for  misdelivery. 
Section  2127c.     Negotiable     bills     must    be     canceled .  when     goods 

delivered. 
Section  2127d.     Negotiable  bills  must  be  canceled  or  marked  when 

parts  of  goods  delivered. 
Section  2128.       Altered   bills. 
Section  2128a.     Lost   or   destroyed   bills. 
Section  2128b.     Kffect  of  duplicate  bills. 
Section  2128c.     Carrier  can  not  set  up  title  in  himself. 
Section  2128d.     Interpleader    of    adverse    claimants. 


[   4  ] 

Section  2128e.  Carrier  has  reasonable  time  to  determine  validity 
of  claims. 

Section  2128f.  Adverse  title  is  no  defense,  except  as  above  pro- 
vided. 

Section  2128g.     Liability  for  nonreceipt  or  misdescription  of  goods. 

Section  2128h.  Attachment  or  levy  upon  goods  for  which  a  nego- 
tiable bill  has  been   issued. 

Section  21281      Creditor's   remedies    to   reach    negotiable   bills. 

Section  212SJ  Negotiable  bill  must  state  charges  for  which  lien 
is  claimed. 

Section  2128k.     Effect    of    sale. 

212T.  Obligation  of  Carrier  to  Deliver.  A  carrier,  in  the 
absence  of  some  lawful  excuse,  is  bound  to  deliver  goods  upon  a 
demand  made  either  by  the  consignee  named  in  the  bill  for  the 
goods,  or  if  the  bill  is  negotiable,  by  the  holder  thereof,  if  such 
demand  is  accompanied  by — 

(a)  An  offer  in  good  faith  to  satisfy  the  carrier's  lawful  lien 
upon  the  goods; 

(b)  An  offer  in  good  faith  to  surrender,  properly  indorsed,  the 
bill  which   was   issued  for  the  goods  if  the  bill  is  negotiable;  and 

(c)  A  readiness  and  willingness  to  sign,  when  the  goods  are 
delivered,  an  acknowledgment  that  they  have  been  delivered,  if 
such  signature  is  requested  by  the  carrier. 

In  case  the  carrier  refuses  or  fails  to  deliver  the  goods  in  com- 
pliance with  a  demand  by  the  consignee  or  holder  so  accompanied, 
the  burden  shall  be  upon  the  carrier  to  establish  the  existence  of 
a  lawful  excuse  for  such  refusal  or  failure. 

2127a.  Justification  of  Carrier  In  Delivering.  A  carrier  is 
justified,  subject  to  the  provisions  of  the  three  following  sections, 
in  delivering  goods  to  one  who  is — 

(a)  A  person  lawfully  entitled  to  the  possession  of  the  goods,  or 

(b)  The  consignee  named  in  a  nonnegotiable  bill  for  the 
goods,  or 

(c)  A  person  in  possession  of  a  negotiable  bill  for  the  goods  by 
the  terms  of  which  the  goods  are  deliverable  to  his  order,  or 
which  has  been  indorsed  to  him  or  in  blank  by  the  consignee  or 
by  the  mediate  or  immediate  indorsee  of  the  consignee. 

2X2Tl>.  Carrier's  Liability  for  Misdelivery.  "V^Tiere  a  carrier 
delivers  goods  to  one  who  is  not  lawfully  entitled  to  the  posses- 
sion of  them,  the  carrier  shall  be  liable  to  anyone  having  a  right 
of  property  or  possession  in  the  goods  if  he  delivered  the  goods 
otherwise  than  as  authorized  by  subdivisions  (b)  and  (c)  of  the 
preceding  section;   and,  though  he  delivered  the  goods   as  author- 


[  5  ] 

ized  by  either  of  said  subdivisions,  he  shall  be  so  liable  if  prior  to 
such  delivery  he — 

(a)  Had  been  requested,  by  or  on  behalf  of  a  person  having  a 
rigrht  of  property  or  possession  in  the  goods,  not  to  make  such 
delivery,  or 

(b)  Had  information  at  the  time  of  the  delivery  that  it  was  to 
a  person  not  lawfully  entitled  to  the  possession  of  the  goods. 

A  request  or  information  to  be  effective  within  the  meaning  of 
this  section  must  be  given  to  an  officer  or  agent  of  the  carrier,  the 
actual  or  apparent  scope  of  whose  duties  includes  action  upon 
such  a  request  or  information,  and  must  be  given  in  time  to 
enable  the  officer  or  agent  to  whom  it  is  given,  acting  with  rea- 
sonable diligence,   to  stop  delivery  of  the  goods. 

2127c.  Negotiable  Bills  Must  Be  Canceled  When  Goods  Deliv- 
ered. Except  as  provided  in  section  two  thousand  one  hundred 
twenty-eight  k  of  this  code,  and  except  when  compelled  by  legal 
process,  if  a  carrier  delivers  goods  for  which  a  negotiable  bill  had 
been  issued,  the  negotiation  of  which  would  transfer  the  right  to 
the  possession  of  the  goods,  and  fails  to  take  up  and  cancel  the 
bill,  such  carrier  shall  be  liable  for  failure  to  deliver  the  goods  to 
anyone  who  for  value  and  in  good  faith  purchases  such  bill, 
whether  such  purchaser  acquired  title  to  the  bill  before  or  after 
the  delivery  of  the  goods  by  the  carrier,  and  notwithstanding 
delivery  was  made  to  the  person  entitled  thereto. 

2127d.  Negotiable  Bills  Must  Be  Canceled  or  Marked  When 
Parts  of  Goods  Delivered.  Except  as  provided  in  section  two 
thousand  one  hundred  twenty-eight  k  of  this  code,  and  except 
when  compelled  by  legal  process,  if  a  carrier  delivers  part  of  the 
goods  for  which  a  negotiable  bill  had  been  issued  and  fails 
either — 

(a)  To  take  up  and  cancel  the  bill,   or 

(b)  To  place  plainly  upon  it  a  statement  that  a  portion  of  the 
goods  has  been  delivered,  with  a  description,  which  may  •  be  in 
general  terms,  either  of  the  goods  or  packages  that  have  been  so 
delivered  or  of  the  goods  or  packages  which  still  remain  in  the 
carrier's  possession,  he  shall  be  liable  for  failure  to  deliver  all  the 
goods  specified  in  the  bill,  to  anyone  who  for  value  and  in  good 
faith  purchases  it,  whether  such  purchaser  acquired  title  to  it 
before  or  after  the  delivery  of  any  portion  of  the  goods  by  the 
carrier,  and  notwithstanding  such  delivery  was  made  to  the  per- 
son entitled  thereto. 

212S.  Altered  Bills.  Any  alteration,  addition  or  erasure  in  a 
bill  after  its  issue  without  authority  from  the  carrier  issuing  the 
same   either  in   writing  or   noted   on   the   bill   shall   be   void,   what- 


[   6   ] 

ever  be  the  nature  and  purpose  of  the  change,  and  the  bill   shall 
be  enforceable  according  to  its  original  tenor. 

2128a.  Lost  or  Destroyed  Bills.  Where  a  negotiable  bill  has 
been  lost  or  destroyed,  a  court  of  competent  jurisdiction  may 
order  the  delivery  of  the  goods  upon  satisfactory  proof  of  such 
loss  or  destruction  and  upon  the  giving  of  a  bond  with  sufficient 
surety  to  be  approved  by  the  court  to  protect  the  carrier  or  any 
person  injured  by  such  delivery  from  any  liability  or  loss  incurred 
by  reason  of  the  original  bill  remaining  outstanding.  The  court 
may  also  in  its  discretion  order  the  payment  of  the  carrier's  rea- 
sonable costs  and  counsel  fees. 

The  delivery  of  the  goods  under  an  order  of  the  court  as  pro- 
vided in  this  section,  shall  not  relieve  the  carrier  from  liability 
to  a  person  to  whom  the  negotiable  bill  has  been  or  shall  be 
negotiated  for  value  without  notice  of  the  proceedings  or  of  the 
delivery  of  the  goods. 

2128b.  Effect  of  Duplicate  Bills.  A  bill  upon  the  face  of 
which  the  word  "duplicate"  or  some  other  word  or  words  indicat- 
ing that  the  document  is  not  an  original  bill  is  placed  plainly 
shall  impose  upon  the  carrier  issuing  the  same  the  liability  of  one 
who  represents  and  warrants  that  such  bill  is  an  accurate  copy 
of  an  original  bill  properly  issued,  but  no  other  liability. 

2128c.  Carrier  Cannot  Set  Up  Title  in  Himself.  No  title  to 
goods  or  right  to  their  possession,  asserted  by  a  carrier  for  his 
own  benefit,  shall  excuse  him  from  liability  for  refusing  to  deliver 
the  goods  according  to  the  terms  of  a  bill  issued  for  them,  unless 
.such  title  or  right  is  derived  directly  or  indirectly  from  a  transfer 
made  by  the  consignor  or  consignee  after  the  shipment,  or  from 
the  carrier's  lien. 

2128d.  Interpleader  of  Adverse  Claimants.  If  more  than  one 
person  claims  the  title  or  possession  of  goods,  the  carrier  may 
lequire  all  known  claimants  to  interplead,  either  as  a  defense  to 
an  action  brought  against  him  for  nondelivery  of  the  goods,  or 
as  an  original  suit,   whichever  is  appropriate. 

2128e.  Carrier  Has  Reasonable  Time  to  Determine  Validity 
of  Claims.  If  someone  other  than  the  consignee  or  person  in  pos- 
session of  the  bill,  has  a  claim  to  the  title  or  possession  of  the 
goods,  and  the  carrier  has  information  of  such  claim,  the  carrier 
shall  be  excused  from  liability  for  refusing  to  deliver  the  goods 
either  to  the  consignee  or  person  in  possession  of  the  bill,  or  to 
the  adverse  claimant,  until  the  carrier  has  had  a  reasonable  time 


[  7  ] 

to   ascertain   the   validity   of   the    adverse    claim   or    to   bring   legal 
proceedings  to  compel  all  claimants  to  interplead. 

2128f.  Adverse  Title  Is  No  Defense,  Except  as  Above  Pro- 
vided. Except  as  provided  in  the  two  preceding  sections  and  in 
section  two  thousand  one  hundred  twenty-seven  a  of  this  code,  no 
right  or  title  of  a  third  person  unless  enforced  by  legal  process 
shall  be  a  defense  to  an  action  brought  by  the  consignee  of  a  non- 
negotiable  bill  or  by  the  holder  of  a  negotiable  bill  against  the 
carrier  for  failure  to  deliver  the  goods  on  demand. 

2128g.  Liability  for  Non-Receipt  or  Misdescription  of  Goods. 
If  a  bill  of  lading  has  been  issued  by  a  carrier  or  on  his  behalf  by 
an  agent  or  employee  the  scope  of  whose  actual  or  apparent 
authority  includes  the  issuing  of  bills  of  lading,  the  carrier  shall 
be  liable  to — 

(a)  The  consignee  named   in  a  nonnegotiable   bill,    or 

(b)  The  holder  of  a  negotiable  bill, 

Who  has  given  value  in  good  faith  relying  upon  the  description 
therein  of  the  goods,  for  damages  caused  by  the  nonreceipt  by 
the  carrier  or  a  connecting  carrier  of  all  or  part  of  the  goods  or 
their  failure  to  correspond  with  the  description  thereof  in  the  bill 
at  the  time  of  its  issue. 

If,  however,  tlie  goods  are  described  in  a  bill  merely  by  a  state- 
ment of  marks  or  labels  upon  them  or  upon  packages  containing 
them,  or  by  a  statement  that  the  goods  are  said  to  be  goods  of  a 
certain  kind  or  quantity,  or  in  a  certain  condition,  or  it  is  stated 
in  the  bill  that  packages  are  said  to  contain  goods  of  a  certain 
kind  or  quantity  or  in  a  certain  condition,  or  that  the  contents 
or  condition  of  the  contents  of  packages  are  unknown,  or  words 
of  like  purport  are  contained  in  the  bill,  such  statements,  if  true, 
shall  not  make  liable  the  carrier  issuing  the  bill,  although  the 
goods  are  not  of  the  kind  or  quantity  or  in  the  condition  which 
the  marks  or  labels  upon  them  indicate,  or  of  the  kind  or  quan- 
tity or  in  the  condition  they  were  said  to  be  by  the  consignor. 
All  carriers  must  issue  to  shippers  of  carload  freight  from  agency 
stations  a  clean  bill  of  lading  at  the  request  of  the  shipper  and  in 
such  cases  shall  discontinue  the  practice  of  noting  on  bill  of  lad- 
ing "Shipper's  load  and  count."  Upon  request  of  shipper  of  car- 
load freight  from  a  non-agency  station,  the  carrier  shaU  send  a 
man  to  check  the  loading  and  shall  issue  a  clean  bill  of  lading, 
the  expense,  except  transportation  of  man  to  and  from  point  of 
loading  to  perform  service  of  checking,  to  be  borne  by  the  shipper. 

21281i.  Attachment  or  Levy  Upon  Goods  for  Which  a  Nego- 
tiable   Bill    Has    Been    Issued.     If  goods   are   delivered   to  a   carrier 


[  8  ] 

by  the  owner  or  by  a  person  whose  act  in  conveying  the  title  1 
them  to  a  purchaser  for  value  in  good  faith  would  bind  the  ownt 
and  a  negotiable  bill  is  issued  for  them,  they  can  not  thereafte 
while  in  the  possession  of  the  carrier,  be  attached  by  garnishmer 
or  otherwise,  or  be  levied  upon  under  an  execution,  unless  the  bi 
be  first  surrendered  to  the  carrier  or  its  negotiation  enjoinei 
The  carrier  shall  in  no  such  case  be  compelled  to  deliver  th 
actual  possession  of  the  goods  until  the  bill  is  surrendered  to  hii 
or  impounded  by  the  court. 

21281.       Creditor's     remedies     to     Reach     Negotiable     Bills. 

creditor  whose  debtor  is  the  owner  of  a  negotiable  bill  shall  b 
entitled  to  such  aid  from  courts  of  appropriate  jurisdiction  t 
injunction  and  otherwise  in  attaching  such  bill,  or  in  satisfyin 
the  claim  by  means  thereof  as  is  allowed  at  law  or  in  equity  i 
regard  to  property  which  can  not  readily  be  attached  or  le\-ie 
upon  by  ordinary  legal  process. 

212SJ.  Negotiable  Bill  Must  State  Charges  for  Which  Lie 
Is  claimed.  If  a  negotiable  bill  is  issued  the  carrier  shall  have  r 
lien  on  the  goods  therein  mentioned,  except  for  charges  on  thos 
goods  for  freight,  storage,  demurrage  and  terminal  charges,  an 
expenses  necessary  for  the  preservation  of  the  goods  or  incider 
to  their  transportation  subsequent  to  the  date  of  the  bill,  unles 
the  bill  expressly  enumerates  other  charges  for  which  a  lien  : 
claimed.  In  such  case  there  shall  also  be  a  lien  for  the  charge 
enumerated  so  far  as  they  are  allowed  by  law  and  the  contrac 
between    tlie    consignor    and    the    carrier. 

2128k.  Effect  of  Sale.  After  goods  have  been  lawfully  sol 
to  satisfy  a  carrier's  lien,  or  because  they  have  not  been  claime( 
or  because  they  are  perishable  or  hazardous,  the  carrier  shall  nc 
thereafter  be  liable  for  failure  to  deliver  the  goods  to  the  cor 
signee  or  owner  of  the  goods,  or  to  a  holder  of  the  bill  given  fc 
the  goods  when  they  are  shipped,  even  of  (if)  such  a  bill  be  negc 
tiable. 

SUBDIVISION  III. 

Negotiation  and  Transfer  of  Bills. 

Section  2129.       Negotiation  of  negotiable  bills  by  delivery. 
Section  2129a.     Negotiation    of    negotiable    bills    by    indorsement. 
Section  2129b.     Transfer  of  bills. 
Section  2129c.     Who  may  negotiate  a  bill. 

Section  2129d.     Rights   of   person   to   whom    a   bill   has    been    negc 
tiated. 


[  9  ] 

Section  2129e.  Rights  of  person  to  whom  a  bill  has  been  trans- 
ferred. 

Section  2129f.      Transfer  of  negotiable  bill   without   indorsement. 

Section  2129g.     Warranties  on  sale  of  bill. 

Section  2130.       Indorser    not    a    guarantor. 

Section  2130a.  No  warranty  implied  from  accepting  payment  of  a 
debt. 

Section  2130b.  When  negotiation  not  impaired  by  fraud,  acci- 
dent, mistake,  duress,  or  conversion. 

Section  2130c.     Subsequent  negotiation. 

Section  2130d.  Form  of  bill  as  indicating  rights  of  buyer  and 
seller. 

Section  2130e.  Demand,  presentation  or  sight  draft  must  be  paid, 
but  draft  on  more  than  three  days'  time  merely 
accepted  before  buyer  is  entitled  to  the  accom- 
panying bill. 

Section  2130f.      Negotiation    defeats   render's    lien. 

Section  2130g.  When  rights  and  remedies  under  mortgages  and 
liens  are  not  limited. 

2129.  Negotiation  of  Negotiable  Bills  by  Delivery.  A  nego- 
tiable bill  may  be  negotiated  by  delivery  where,  by  the  terms  of 
the  bill,  the  carrier  undertakes  to  deliver  the  goods  to  the  order 
of  a  .specified  person,  and  such  person  or  a  subsequent  indorsee  of 
the  bill  has  indorsed  it  in  blank. 

2129a.      Negotiation    of    Negotiable    Bills    by    Indorsement.      A 

negotiable  bill  may  be  negotiated  by  the  indorsement  of  the 
person  to  whose  order  the  goods  are  deliverable  by  the  tenor  of 
the  bill.  Such  indorsement  may  be  in  blank  or  to  a  specified  per- 
son. If  indorsed  to  a  specified  person,  it  may  be  negotiated  again 
by  the  indorsement  of  such  person  in  blank  or  to  another  speci- 
fied person.     Subsequent  negotiation  may  be  made  in  like  manner. 

2129b.  Transfer  of  bills.  A  bill  may  be  transferred  by  the 
holder  by  delivery,  accompanied  with  an  agreement,  express  or 
implied,  to  transfer  the  title  to  the  bill  or  to  the  goods  repre- 
sented thereby.  A  nonnegotiable  bill  can  not  be  negotiated,  and 
the  indorsement  of  such  a  bill  gives  the  transferee  no  additional 
right. 

2129c.  Who  May  Negotiate  a  Bill.  A  negotiable  bill  may  be 
negotiated  by  any  person  in  possession  of  the  same,  however  such 
possession  may  have  been  acquired  if,  by  the  terms  of  the  bill, 
the  carrier  undertakes  to  deliver  the  goods  to  the  order  of  such 
person,  or  if  at  the  time  of  negotiation  the  bill  is  in  such  form 
that  it  may  be  negotiated   upon   delivery. 


[  10  ] 

2129d.  Rights  of  Persons  to  Whom  a  Bill  Has  Been  Nego- 
tiated. A  person  to  whom  a  negotiable  bill  has  been  duly  nego- 
tiated  acquires   thereby — 

(a)  Such  title  to  the  goods  as  the  person  negotiating  the  bill 
to  him  had  or  had  ability  to  convey  to  a  purchaser  in  good  faitt 
for  value,  and  also  such  title  to  the  goods  as  the  consignee  and 
consignor  had  or  had  power  to  convey  to  a  purchaser  in  good 
faith  for  value,   and 

(b)  The  direct  obligation  of  the  carrier  to  hold  possession  ol 
the  goods  for  him  according  to  the  terms  of  the  bill  as  fully  as 
if  the  carrier  had  contracted  directly  with  him. 

2129e.  Rights  of  Person  to  Whom  a  Bill  Has  Been  Trans- 
ferred. A  person  to  whom  a  bill  has  been  transferred  but  not 
negotiated  acquires  thereby  as  against  the  transferor,  the  title 
to  the  goods,  subject  to  the  terms  of  any  agreement  with  the 
transferor.  If  the  bill  is  nonnegotiable,  such  person  also  acquires 
the  right  to  notify  the  carrier  of  the  transfer  to  him  of  such  bill, 
and  thereby  to  become  the  direct  obligee  of  whatever  obligations 
the  carrier  owed  to  the  transferor  of  the  bill  immediately  before 
the  notification. 

Prior  to  the  notification  of  the  carrier  by  the  transferor  oi 
transferee  of  a  nonnegotiable  bill,  the  title  of  the  transferee  tc 
the  goods  and  the  right  to  acquire  the  obligation  of  the  carrier 
may  be  defeated  by  garnishment  or  by  attachment  or  execution 
upon  the  goods  by  a  creditor  of  the  transferor,  or  by  a  notifica- 
tion to  the  carrier  by  the  transferor  or  a  subsequent  purchaser 
from  the  transferor  of  a  subsequent  sale  of  the  goods  by  the 
transferor. 

A  carrier  lias  not  received  notification  within  the  meaning  of  this 
section  unless  an  officer  or  agent  of  the  carrier,  the  actual  or 
apparent  scope  of  whose  duties  includes  action  upon  such  a  notifi- 
cation, has  been  notified;  and  no  notification  shall  be  effective  until 
the  officer  or  agent  to  whom  it  is  given  has  had  time  with  the 
exercise  of  reasonable  diligence  to  communicate  with  the  agent  or 
agents  having  actual  possession  or  control  of  "the  goods. 

2129f.       Transfer    of     Negotiable     Bill     Without     Indorsement. 

T\'here  a  negotiable  bill  is  transferred  for  value  by  delivery,  and 
the  indorsement  of  the  tranferor  is  essential  for  negotiation,  the 
transferee  acquires  a  right  against  the  transferor  to  compel  him 
to  indorse  the  bill,  unless  a  contrary  intention  appears.  The 
negotiation  shall  take  effect  as  of  the  time  when  the  indorsement 
is  actually  made.     This  obligation   may  be   specifically  enforced. 


[  11  ] 

2129g.  Warranties  on  Sale  of  Bill.  A  person  who  negotiates 
r  tiansfers  for  value  a  bill  by  indorsement  or  delivery,  including 
ne  who  assigns  for  value  a  claim  secured  by  'a  bill,  unless  a  con- 
'ary  intention  appears,  warrants — 

(a)  That   a   bill   is   genuine; 

(b)  That  he  has  a  legal  right  to  transfer  it; 

(c)  Tliat  he  has  knowledge  of  no  fact  whicli  would  impair 
16  validity  or  worth  of  the  bill;    and 

(d)  That  he  has  a  right  to  transfer  the  title  of  the  goods,  and 
hiat  the  goods  are  merchantable  or  fit  for  a  particular  purpose 
'henever  such  warranties  would  have  been  implied,  if  the  contract 
f  the  parties  had  been  to  transfer  witliout  a  bill  the  goods 
^presented    thereby. 

In  the  case  of  an  assignment  of  a  claim  secured  bj'  a  bill,  the 
ability  of  the  assignor  shall  not  exceed  the  amount  of  tlie  claim. 

2130.  Indorser  Not  a  Guarantor,  The  indorsement  of  a  bill 
hall  not  make  the  indorser  liable  for  any  failure  on  the  part  of 
he  carrier  or  previous  indorsers  of  the  bill  to  fulfill  their  respect- 
v'e  obligations. 

2130a.  No  Warranty  Implied  From  Accepting  Payment  of  a 
)ebt.  A  mortgagee  or  pledgee,  or  other  holder  of  a  bill  for 
ecurity  who  in  good  faith  demands  or  receives  payment  of  the 
ebt  for  which  such  bill  is  security,  whether  from  a  party  to  a 
raft  drawn  for  such  debt  or  from  any  other  person,  shall  not  be 
eemed  by  so  doing  to  represent  or  to  warrant  the  genuineness 
if  such  bill  or  the  quantity  or  quality  of  tlie  goods  therein 
escribed. 

2130b.  When  Negotiation  Not  Impaired  by  Fraud,  Accident, 
/listake.  Duress  or  Conversion.  The  validity  of  the  negotiation  of 
.  bill  is  not  impaired  bj-  tlie  fact  that  sucli  negotiation  was  a 
ireach  of  duty  on  the  part  of  the  person  making  the  negotiation, 
ir  by  the  fact  tliat  the  owner  of  the  bill  was  deprived  of  the 
lossession  of  the  same  by  fraud,  accident,  mistake,  duress  or 
onversion,  if  the  person  to  whom  the  bill  was  negotiated,  or 
.  person  to  whom  the  bill  was  subsequently  negotiated,  gave 
alue  therefor,  in  good  faith,  without  notice  of  tlie  breach  of 
;uty,    or   fraud,    accident,    mistake,   duress    or    conversion. 

2130c.  Subsequent  Negotiation.  Where  a  person  having 
lold,  mortgaged,  or  pledged  goods  which  are  in  the  carrier's  pos- 
iession  and  for  which  a  negotiable  bill  has  been  issued,  or  having 
lold,  mortgaged,  or  pledged  the  negotiable  bill  representing  such 
joods,    continues    in    possession   of   the   negotiable    bill,    the    subse- 


[  12  J 

quent  negotiation  thereof  by  that  person  under  any  sale,  pledge, 
or  other  disposition  thereof  to  any  person  receiving  the  same 
in  good  faith,  for  v.alue  and  without  notice  of  the  previous  sale, 
shall  have  the  same  effect  as  if  the  first  purchaser  of  the  goods 
or  bill  had  expressly  authorized  the  subsequent  negotiation. 

2130d.     Form  of  Bill  as  Indicating   Rights  of  Buyer  and  Seller. 

Where  goods  are  shipped  by  the  consignor  in  accordance  with  a 
contract  or  order  for  their  puichase,  the  form  in  which  the  bill 
is  taken  by  the  consignor  shall  indicate  the  transfer  or  retention 
of  the  property  or  right  to  the  possession  of  the  goods  as  follows: 

(a)  Where  by  the  bill  the  goods  are  deliverable  to  the  buyer 
or  to  his  agent,  or  to  the  order  of  the  buyer  or  of  his  agent,  the 
consignor  thereby  transfers  the  property  in  the  goods  to  the 
buyer. 

(b)  Where  by  the  bill  the  goods  are  deliverable  to  the  seller 
or  to  his  agent,  or  to  the  order  of  the  seller  or  of  his  agent,  the 
seller  thereby  reserves  the  property  in  the  goods.  But  if,  except 
for  the  form  of  the  bill,  the  property  would  have  passed  to  the 
buyer  on  shipment  of  the  goods,  the  seller's  property  in  the 
goods  shall  be  deemed  to  be  only  for  the  purpose  of  securing 
performance  by  the  buyer  of  his  obligations  under  the  contract. 

(c)  When  by  the  bill  the  goods  are  deliverable  to  the  order  of 
the  buyer  or  of  his  agent,  but  possession  of  the  bill  is  retained 
by  the  seller  or  his  agent,  the  seller  thereby  reserves  a  right  to 
the  possession  of  the  goods,  as  against   the  buyer. 

(d)  Where  the  seller  draws  on  the  buyer  for  the  price  and 
transmits  the  draft  and  bill  together  to  the  buyer  to  secure  accept- 
ance or  payment  of  the  draft,  the  buyer  is  bound  to  return  the 
bill  if  he  does  not  honor  the  draft,  and  if  he  wrongfully  retains 
the  bill  he  acquires  no  added  right  thereby.  If,  however,  the  bill 
provides  that  the  goods  are  deliverable  to  the  buyer,  or  to  the 
order  of  the  buyer,  or  is  endorsed  in  blank  or  to  the  buyer  by 
the  consignee  named  therein,  one  who  purchases  in  good  faitli, 
for  value,  the  bill  or  goods  from  the  buyer,  shall  obtain  the  title 
to  the  goods,  although  the  draft  has  not  been  honored,  if  such 
purchaser  has  received  delivery  of  the  bill  indorsed  by  the  con- 
signee named  therein,  or  of  the  goods,  witliout  notice  of  the  facts 
making  the   transfer  wrongful. 

2130e.  Demand,  Presentation  or  Sight  Draft  Must  Be  Paid, 
But  Draft  on  More  Than  Three  Days'  Time  Merely  Accepted  Before 
Buyer  Is  Entitled  to  the  Accompanying  Bill.  Where  the  seller  of 
goods  draws  on  the  buyer  for  the  price  of  the  goods  and  transmits 
the  draft  and  a  bill  of  lading  for  the  goods  either  directly  to  the 
buyer  or  through  a  bank  or  other  agency,  unless  a  different  inten- 


f 


[  13  ] 

tion    on    the    part   of    the    seller   appears,    the   buyer    and   all    other 
parties  interested  shall  be  justified   in  assuming: 

(a)  If  the  draft  is  by  its  terms  or  legal  effect  payable  on 
demand  or  presentation  or  at  sight,  or  not  more  than  three  days 
thereafter  (whether  such  three  days  be  termed  days  of  grace  or 
not),  that  the  seller  intended  to  require  payment  of  the  draft 
before   the  buyer  should   be  entitled   to   receive   or   retain   the   bill. 

(b)  If  the  draft  is  by  its  terms  payable  on  time,  extending 
beyond  three  days  after  demand,  presentation  or  sight  (whether 
such  three  days  be  termed  days  of  grace  or  not),  that  the  seller 
intended  to  require  acceptance,  but  not  pajTnent  of  the  draft 
before   the  buyer  should    be   entitled   to   receive   or   retain   tiie    bill. 

The  provisions  of  this  section  are  applicable  whether  by  the 
terms  of  the  bill  the  goods  are  consigned  to  the  seller,  or  to  his 
order,  or  to  the  buyer,  or  to  his  order,  or  to  a  third  person,  or  to 
his  order. 

2130f.  Negotiation  Defeats  Vendor's  Lien.  Where  a  nego- 
tiable bill  has  been  issued  for  goods,  no  seller's  lien  or  right  of 
stoppage  in  transitu  shall  defeat  the  rights  of  any  purchaser  for 
value  in  good  faith  to  whom  sucli  bill  has  been  negotiated, 
whether  such  negotiation  be  prior  or  subsequent  to  the  notification 
to  the  carrier  wlio  issued  such  bill  of  the  seller's  claim  to  a  lien 
or  right  of  stoppage  in  transitu.  Nor  shall  the  carrier  be  obliged 
to  deliver  or  justified  in  delivering  the  goods  to  an  unpaid  seller 
unless  such  bill   is   first   surrendered  for   cancellation. 

2130g.  When  Rights  and  Remedies  Under  IVIortgages  and 
Liens  Are  Not  Limited.  , Except  as  provided  in  section  two  tiiou- 
sand  one  hundred  thirty  f  of  tliis  code,  nothing  in  this  article  shall 
limit  the  rights  and  remedies  of  a  mortgagee  or  lienholder  whose 
mortgage  or  lien  on  goods  would  be  valid,  apart  from  this  article, 
as  against  one  who  for  value  and  in  good  faith  purchased  from 
the  owner,  immediately  prior  to  the  time  of  delivery  to  the  carrier, 
the  goods  which  are  subject  to  the  mortgage  or  lien  and  obtained 
possession  of  them. 

SUBDIVISION   TV. 
Criminal  Offenses. 

Section  2131.       I.ssue  of  bill  for  goods  not  received. 
Section   2131a.     Issue  of  bill  containing  false  statement. 
Section  2131b.     Issue  of  duplicate  bills  not  so  marked. 
Section  2131c.     Negotiation  of  bill  for  mortgaged  goods. 
Section  2131d.     Negotiation  of  bill  when  goods  are  not  in  carrier's 
possession. 


[  14  ] 

Section  2131c.     Inducing  carrier  to  issue  bill  when  goods  have  not 

been    received. 
Section  2131f.     Issue  of  nonnegotiable  bill  not  so  marked. 

2131.  Issue  of  Bill  for  Goods  Not  Received.  Any  officer,  agent, 
or  sei-vant  of  a  carrier,  who  with  intent  to  defraud  issues  or  aids 
in  issuing  a  bill  knowing  that  all  or  any  part  of  the  goods  for 
■which  such  bill  is  issued  have  not  been  received  by  such  carrier, 
or  by  an  agent  of  such  carrier  or  by  a  connecting  carrier,  or  are 
not  under  the  carrier's  control  at  the  time  of  issuing  such  bill, 
shall  be  guilty  of  a  crime,  and  upon  conviction  shall  be  punished 
for  each  offense  by  imprisonment  not  exceeding  five  years,  or  by 
a  fine  not  exceeding  five  thousand  dollars  or  by  both. 

2131a.  Issue  of  Bill  Containing  False  Statement.  Any  officer, 
agent,  or  servant  of  a  carrier,  who  with  intent  to  defraud  issues 
or  aids  in  issuing  a  bill  for  goods,  knowing  that  it  contains  any 
false  statement,  shall  be  guilty  of  a  crime,  and  upon  conviction 
shall  be  punished  for  each  offense  by  imprisonment  not  exceeding 
one  year,  or  by  a  fine  of  not  exceeding  one  thousand  dollars,  or 
by  both. 

2131b.  Issue  of  Duplicate  Bills  Not  So  Marked.  Any  officer, 
agent,  oi-  servant  of  a  carrier,  wlio  with  intent  to  defraud  issues 
or  aids  in  issuing  a  duplicate  or  additional  negotiable  bill  for  goods 
in  violation  of  the  provisions  of  section  two  thousand  one  hundred 
twenty-six  f  of  this  code,  knowing  that  a  former  negotiable  bill 
for  the  same  goods  or  any  part  of  them  is  outstanding  and  uncan-. 
celled,  shall  be  guilty  of  a  crime,  and  upon  conviction  shall  be 
punished  for  each  offense  by  imprisonment  not  exceeding  five  years, 
or  by  a  fine  not  exceeding  five  thousand  dollars,  or  by  both. 

2131c.  Negotiation  of  Bill  for  Mortgaged  Goods.  Any  person 
who  ships  goods  to  which  he  has  not  title,  or  upon  which  there 
is  a  lien  or  mortgage,  and  who  takes  for  such  goods  a  negotiable 
bill  which  he  afterwards  negotiates  for  value  with  intent  to  deceive 
and  without  disclosing  his  want  of  title  or  the  existence  of  the 
lien  or  mortgage,  shall  be  guilty  of  a  crime,  and  upon  conviction, 
shall  be  punished  for  each  offense  by  imprisonment  not  exceeding 
one  year,  or  by  a  fine  not  exceeding  one  thousand  dollars,  or  by 
both. 

2131d.  Negotiation  of  Bill  When  Goods  Are  Not  in  Carrier's 
Possession.  Any  person  who  with  intent  to  deceive  negotiates  or 
transfers   for  value   a    bill  knowing   that   any   or   all   of   the   goods 


[   15  ] 

which  by  the  terms  of  such  bill  appear  to  have  been  received  for 
transportation  by  the  carrier  which  issued  the  bill,  are  not  in 
the  possession  or  control  of  such  carrier,  or  of  a  connecting  carrier, 
without  disclosing  this  fact,  shall  be  guilty  of  a  crime,  and  upon 
conviction  shall  be  punished  for  each  offense  by  imprisonment  not 
exceeding  five  years,  or  by  a  fine  not  exceeding  five  thousand 
dollars,  or  by  both. 

2131e.  Inducing  Carrier  to  Issue  Bill  When  Goods  Have  Not 
Been  Received.  Any  person  who  with  intent  to  defraud  secures  the 
issue  by  a  carrier  oi  a  bill  knowing  that  at  the  time  of  such  issue, 
any  or  all  of  the  goods  described  in  sucli  bill  as  received  for  trans- 
portation have  not  been  received  by  such  carrier,  or  an  agent  of 
such  carrier  or  a  connecting  carrier,  or  are  not  under  the  carrier's 
control,  by  inducing  an  officer,  agent,  or  servant  of  such  carrier 
falsely  to  believe  that  sucli  goods  have  been  received  by  such 
carrier,  or  are  under  its  control,  sliall  be  guilty  of  a  crime,  and 
upon  conviction  shall  be  punished  for  eacli  offense  by  imprisonment 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  five  thousand 
dollars,   or  by  both. 

2131f.  Issue  of  Nonnegotiable  BUI  Not  So  Marked.  Any  person 
who  with  intent  to  defraud  issues  or  aids  in  i.ssuing  a  nonnegotiable 
bill  without  the  words  "not  negotiable"  placed  plainly  upon  the 
face  thereof,  shall  be  guilty  of  a  crime,  and  upon  conviction  shall 
be  punished  for  each  offense  by  imprisonment  not  exceeding  five 
years  or  by  a  fine  not  exceeding  five  thousand  dollars,  or  by  both. 

SUBDIVISION   V. 

Interpretation. 

Section  2132.     Rule    for   cases    not   provided    for    in    this    article. 
Section  21.32a.     Interpretation   shall   give   effect   to   purpose   of   uni- 
formity. 
Section  2132b.     Definitions. 

Section  2132c.     Article  does  not  apply  to  existing  bills. 
Section  2132d.     Inconsistent  legislation  repealed. 

2132.  Rule  for  Cases  Not  Provided  for  In  This  Article.  In  any 
case  not  provided  for  in  this  article,  the  rules  of  law  and  equity 
including  the  law  merchant,  and  in  particular  the  rules  relating 
to  the  law  of  principal  and  agent,  executors,  administrators  and 
trustees,  and  to  the  effect  of  fraud,  misrepresentation,  duress  or 
coercion,  accident,  mistake,  bankruptcy,  or  other  invalidating  cause, 
shall  govern. 


[  16  ] 

2132a.     Interpretation    Shall    Give    Effect    to    Purpose    O' 

formity.     This  article  shall   be   so   interpreted  and   C(     strued 
effectuate   its  general  purpose   to  make   uniform   the   law  of 

states  wliich  enact  it.  'ti 

'I 

2132b.  Definitions.  (1)  In  this  article,  unless  the  context,  or 
subject  matter  otherwise  requires — 

"Action"    includes   counterclaim,   set-off,    and    suit    in    equity. 

"Bill"   means  bill  of  lading. 

"Consignee"  means  the  person  named  in  the  bill  as  the  person 
to  whom  delivei->'  of  the  goods  is  to  be  made. 

"Consignor"  means  the  person  named  in  the  bill  as  the  person 
from  whom  the  goods  have  been  received  for  shipment. 

"Goods"  means  merchandise  or  chattels  in  course  of  transpor- 
tation, or  which  have  been  or  are  about  to  be  transported. 

"Holder"  of  a  bill  means  a  person  who  has  both  actual  posses- 
sion of  such  bill  and  a  right  of  property  therein. 

"Order"   means  an  order  by  indorsement  on  the  bill. 

"Owner"   does  not  Include  mortgagee  or  pledgee. 

"Person"  includes  a  corporation  or  partnership  or  two  or  more 
persons  having  a  joint  or  common  interest. 

To  "purchase"  includes  to  take  as  mortgagee  and  to  take  as 
pledgee. 

"Value"  is  any  consideration  sufficient  to  support  a  simple  con- 
tract. An  antecedent  or  preexisting  obligation,  whether  for  money 
or  not,  constitutes  value  where  a  bill  is  taken  either  in  satisfaction 
thereof  or  as  security  therefor. 

(2)  A  thing  is  done  "in  good  faith,"  within  the  meaning  of  this 
article,  when  it  is  in  fact  done  honestly,  whether  it  be  done  neglt- 
gently  or  not. 

2132c.  Article  Does  Not  Apply  to  Existing  Bills.  The  provi- 
sions of  this  article  do  not  apply  to  bills  made  and  delivered  prior 
to  the   taking  effect   thereof. 

Sec.  2.  Article  three  of  ciiapter  three  of  title  seven  of  part  four 
of  division  three  of  the  Civil  Code  is  hereby  repealed;  provided, 
however,  that  nothing  contained  herein  shall  be  construed  as 
limiting  in  any  way  the  powers  of  the  railroad  commission  under 
the  public  utilities  act,  or  any  reenactment,  ievision  or  amend- 
ment thereof.  (In  effect  90  days  from  and  after  April  22,  1919. 
Stats.   1919,   Chap.   364.)  Civ.   Code,   1919. 


609  CARRIAGE  OF  PROPERTY.       BILL  OF  LADING.  §  2132 

freight  so  as  to  identify  it,  stating  the  name  of  the  consignor, 
the  terms  of  the  contract  for  carriage,  and  agreeing  or  direct- 
ing that  the  freight  be  delivered  to  the  order  or  assigns  of  a 
sp'    'tied  person  at  a  specified  place. 

Issuing  fictitious  bill  of  lading:  Pen.  Code,  §  577. 

Legislation  §  2126.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
-inL    V  Y.  Civ.  Code,  §  IIDS. 

sLr;j§  2127.'  Bill  of  lading'  negotiable.  All  the  title  to  the 
freight  which  the  first  holder  of  a  bill  of  lading  had  when  he 
received  it,  passes  to  every  subsequent  indorsee  thereof  in  good 
faith  and  for  value,  in  the  ordinary  course  of  business,  with 
like  effect  and  in  like  manner  as  in  the  case  of  a  bill  of  ex- 
change. 

Legislation  §  2127.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1109. 

§  2128.  Same.  When  a  bill  of  lading  is  made  to  "bearer," 
or  in  equivalent  terms,  a  simple  transfer  thereof,  by  delivery, 
conveys  the  same  title  as  an  indorsement. 

Legislation  §  2128.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1110. 

§  2129.     Effect  of  bill  of  lading  on  rights,  etc.,  of  carrier.     A 

bill  of  lading  does  not  alter  the  rights  or  obligations  of  the 
carrier,  as  defined  in.  this  chapter,  unless  it  is  plainly  incon- 
sistent therewith. 

Legislation  §  2129.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1111. 

§  2130.     Bills  of  lading  to  be  given  to  consignor.     A  carrier 
must  sul)scribe  and  deliver  to  the  consignor,  on  demand,  any 
reasonable  number  of  bills  of  lading,  of  the  same  tenor,  ex- 
pressing truly  the  original  contract  for  carriage;  and  if  he 
refuses  to  do  so,  the  consigner  may  take  the  freight  from  him, 
and  recover  from  him,  besides,  all  damage  thereby  occasioned. 
Duplicate  receipts  must  be  marked  "Duplicate":  Pen.  Code,  §  580. 
Legislation  §  2130.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1112. 

§  2131.     Carrier  exonerated  by  delivery  according  to  bill  of 
lading.     A  carrier  is  exonerated  from  liability  for  freight  by 
delivery  thereof,  in  good  faith,  to  any  holder  of  a  bill  of  lad- 
ing therefor,  properly  indorsed,  or  made  in  favor  of  the  bearer. 
Bill  of  lading  negotiable:  See  ante,  §  2128. 

Legislation  §  2131.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1113. 

§  2132.  Carrier  may  demand  surrender  of  bill  of  lading 
before  delivery.     When  a  carrier  has  given  a  bill  of  lading,  or 

Civ.  Codn— 39 


§  2140  CIVIL   CODE.  >  610 

other  instrument  substantially  equivalent  thereto,  he  may  re- 
quire its  surrender,  or  a  reasonable  indemnity  against  claims 
thereon,  before  delivering  the  freight. 

Legislation  §  2132.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1114. 

AETICLE  IV. 

Freightage. 

§  2136.  When  freightage  is  to  be  paid. 

§  2137.  Consignor,  when  liable  for  freightage. 

§  2138.  Consignee,  when  liable. 

§  2139.  Natural  increase  of  freight. 

§  2140.  Apportionment  by  contract. 

§  2141.  Same. 

§  2142.  Apportionment  according  to  distance. 

§  2143.  Freight  carried  further  than  agreed,  etc. 

§  2144.  Carrier's  lien  for  freightage,  services  and  advances. 

§  2136.  When  freightage  is  to  be  paid.  A  carrier  may  re- 
quire his  freightage  to  be  paid  upon  his  receiving  the  freight; 
but  if  he  does  not  demand  it  then,  he  cannot  until  he  is  ready  to 
deliver  the  freight  to  the  consignee. 

Freightage,  defined:   Ante,  §  2110. 
Freight,  defined:   Ante,  §  2110. 

Legislation  §  2136.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
'      N.  Y.  Civ.  Code,  §  1115. 

§  2137.  Consignor,  when  liable  for  freightage.  The  con- 
signor of  freight  is  presumed  to  be  liable  for  the  freightage, 
but  if  the  contract  between  him  and  the  carrier  provides  that 
the  consignee  shall  pay  it,  and  the  carrier  allows  the  consignee 
to  take  the  freight,  he  cannot  afterwards  recover  the  freightage 
from  the  consignor. 

Legislation  §  2137.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1116. 

§  2138.  Consignee,  when  liable.  The  consignee  of  freight 
is  liable  for  the  freightage,  if  he  accepts  the  freight  with  notice 
of  the  intention  of  the  consignor  that  he  should  pay  it.      -~- 

Legislation  §  2138.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1117. 

§  2139.  Natural  increase  of  freight.  No  freightage  can  be 
charged  upon  the  natural  increase  of  freight. 

Legislation  §  2139.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1118. 

§  2140.  Apportionment  by  contract.  If  freightage  is  ap- 
portioned by  a  l)ill  of  lading  or  other  contract  made  between 
a  consignor  and  carrier,  the  carrier  is  entitled  to  payment,  ac- 
cording to  the  apportionment,  for  so  much  as  he  delivers. 


611  CARRIAGE  OF  PROPERTY.      FREIGHTAGE.  §  2144 

Legislation  §  2140.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1119. 

§  2141.  Same.  If  a  part  of  the  freight  is  accepted  by  a  con- 
signee, without  a  specific  objection  that  the  rest  is  not  de- 
livered, the  freightage  must  be  apportioned  and  paid  as  to  that 
part,  though  not  apportioned  in  the  original  contract. 

Legislation  §  2141.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

"jSr.  Y.  Civ.  Code,  §  1120. 

§2142.  Apportionment  according*  to  distance.  If  a  con- 
signee voluntarily  receives  freight  at  a  place  short  of  the  one 
appointed  for  delivery,  the  carrier  is  entitled  to  a  just  pro- 
portion of  the  freightage,  according  to  distance.  If  the  car- 
rier, being  ready  and  willing,  offers  to  complete  the  transit,  he 
is  entitled  to  the  full  freightage.  If  he  does  not  thus  offer 
comi)letion,  and  the  consignee  receives  the  freight  only  from 
necessity,  the  carrier  is  not  entitled  to  any  freightage. 

Legislation  §  2142.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1121. 

§  2143,  Freight  carried  further  than  agreed,  etc.  If  freight 
is  carried  further,  or  more  expeditiously,  than  was  agreed  upon 
by  the  parties,  the  carrier  is  not  entitled  to  additional  compen- 
sation, and  cannot  refuse  to  deliver  it,  on  the  demand  of  the 
consignee,  at  the  place  and  time  of  its  arrival. 

Legislation  §  2143.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1122. 

§  2144.     Carrier's  lien  for  freightage,  services,  and  advances. 

A  carrier  has  a  lien  for  freightage  and  for  services  rendered  at 
request  of  shipper  or  consignee  in  and  about  the  transportation, 
care  and  preservation  of  the  property,  and  he  also  has  a  lien 
for  money  advanced  at  request  of  shipper  or  consignee  to  dis- 
charge a  prior  lien.  His  rights  to  such  lien  are  regulated  by 
the  title  on  liens.  [Amendment  approved  1909 ;  Stats.  1909, 
p.  1000.] 

Liens,  generally:  See  post,  §§  2872  et  seq. 

Lien  on  passenger's  luggage:  Post,  §  2191. 

Lien  for  freight;   See  post,  §  2204. 

Legislation  §  2144.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1123),  and  then  read:  "A  carrier  has  a  lien  for 
freightage,  which  is  regulated  by  the  litle  on  liens." 

2.  Amended  by  Stats.  1909,  p.  1000. 


§  2152  CIVIL  CODE.  612 

AETICLE    V. 

General  Average. 

§  2148.  Jettison   and    general   average,   what. 

§  2149.  Order   of  jettison. 

§  2150.  By  whom   made. 

§  2151.  Loss,  how  borne. 

§  2152.  General    average   loss,   how   adjusted. 

§  2153.  Values,  how  ascertained'. 

§  2154.  Things   stowed   on   deck. 

§  2155.  Application  of  the  foregoing  rules. 

§2148.  Jettison  and  general  average,  what.  A  carrier  by 
water  may,  when  in  case  of  extreme  peril  it  is  necessary  for  the 
safety  of  the  ship  or  cargo,  throw  overboard,  or  otherwise 
sacrifice,  any  or  all  of  the  cargo  or  appurtenances  of  the  ship. 
Throwing  property  overboard  for  such  purpose  is  called 
jettison,  and  the  loss  incurred  thereby  is  called  a  general  aver- 
age loss. 

Legislation  §  2148.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1124. 

§  2149.  Order  of  jettison.  A  jettison  must  begin  with  the 
most  bulky  and  least  valuable  articles,  so  far  as  possible. 

Legislation  §  2149.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1125. 

§  2150.  By  whom  made.  A  jettison  can  be  made  only  by 
authority  of  the  master  of  a  ship,  except  in  case  of  his  dis- 
ability, or  of  an  overruling  necessity,  when  it  may  be  made  by 
any  other  person. 

Legislation  §  2150.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1126. 

§  2151.  Loss,  how  borne.  The  loss  incurred  by  a  jettison, 
when  lawfully  made,  must  be  borne  in  due  proportion  by  all 
that  part  of  the  ship,  appurtenances,  freightage,  and  cargo  for 
the  benefit  of  Avhich  the  sacrifice  is  made,  as  well  as  by  the 
owner  of  the  thing  sacrificed. 

Legislation  §  2151.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1127. 

§  2152.  General  average  loss,  how  adjusted.  The  propor- 
tions in  which  a  general  average  loss  is  to  be  borne  must  be 
ascertained  by  an  adjustment,  in  Avhich  the  owner  of  each  sep- 
arate interest  is  to  be  charged  with  such  proportion  of  the  value 
of  the  thing  lost  as  the  value  of  his  part  of  the  property  affected 
bears  to  the  value  of  the  whole.  But  an  adjustment  made  at 
the  end  of  the  voyage,  if  valid  there,  is  valid  everywhere. 

Legislation  §  2152.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1128. 


613  CARRIAGE  OF  MESSAGES.  §  2161 

§  2153.  Values,  how  ascertained.  In  estimating  values  for 
the  purpose  of  a  general  average,  the  ship  and  appurtenances 
must  be  valued  as  at  the  end  of  the  voyage,  the  freightage  at 
one  half  the  amount  due  on  delivery,  and  the  cargo  as  at  the 
time  and  place  of  its  discharge ;  adding,  in  each  case,  the 
:  amount  made  good  by  contribution. 

Legislation  §  2153.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1129. 

§  2154.  Things  stowed  on  deck.  The  owner  of  things 
stoAved  on  deck,  in  case  of  their  jettison,  is  entitled  to  the 
benefit  of  a  general  average  contribution  only  in  case  it  is  usual 
to  stow  such  things  on  deck  upon  such  a  voyage. 

Legislation  §  2154.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  1130. 

§  2155.  Application  of  the  foregoing  rules.  The  rules  here- 
in stated  concerning  jettison  are  equally  applicable  to  every 
other  voluntary  sacrifice  of  property  on  a  ship,  or  expense 
necessarily  incurred,  for  the  preservation  of  the  ship  and  cargo 
from  extraordinary  perils. 

Legislation  §  2155.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §1131. 

CHAPTER  IV. 

Carriage    of    Messages. 

§  2161.     Obligation  of  carrier  of  messages. 

§  2162.     Degree   of   care   and   diligence   required. 

§  2161.  Obligation  of  carrier  of  messages.  A  carrier  of 
messages  for  reward,  other  than  by  telegraph  or  telephone, 
must  deliver  them  at  the  place  to  which  they  are  addressed,  or 
to  the  person  for  whom  they  are  intended.  Such  carrier,  by 
telegraph  or  telephone,  must  deliver  them  at  such  place  and 
to  such  person,  provided  the  place  of  address,  or  the  person  for 
whom  they  are  intended,  is  within  a  distance  of  two  miles  from 
the  main  office  of  the  carrier  in  the  city,  or  town  to  which  the 
messages  are  transmitted,  and  the  carrier  is  not  required,  in 
making  the  delivery,  to  pay  on  his  route  'toll  or  ferriage;  but 
for  any  distance  beyond  one  mile  from  such  office,  compensa- 
tion may  be  charged  for  a  messenger  employed  by  the  carrier. 
[Amendment  approved  190.5;  Stats.  1905,  p.  627.] 

Neglect  or  postponement  in  delivery:  See  Pen.  Code,  §  638. 

Order   of  transmitting  messages:    Post,  §  2208. 

Refusal  to   deliver  message,  penalty:   Post,  §  2209. 

Carrier  of  telegraphic  messages:  See  post,  §§  2207  et  seq. 

Legislation  §  2161.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1132),  and  then  read:  "A  carrier  of  messages 
for  reward  must  deliver  them  at  the  place  to  which  they  are  addressed, 
or  to  the  persons  for  whom  they  are  intended." 


2168 


CIVIL   CODE. 


614 


2.  Amended  by  Code  Amdts.  1873-7i,  p.  24S,  and  differed  from  the 
amendment  of  1905  (the  present  section),  in  not  having  the  words  "or 
telephone,"  after  "telegraph,"  in  either  instance. 

3.  Amendment  by  Stats.  1901,  p.  413;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  627,  adding  "or  telephone"  after  "tele- 
graph" in  both  instances;  the  code  commissioner  saying  of  the  addition, 
"thus  making  the  section  applicable  to  both  telegraph  and  telephone 
companies." 

§  2162.  Degree  of  care  and  diligence  required.  A  carrier  of 
messages  for  reward,  must  use  great  care  and  diligence  in  the 
transmission  and  delivery  of  messages.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  249.] 

Legislation  §  2162,  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1133),  and  then  read:  "A  carrier  of  messages 
for  reward  must  use  great  care  and  diligence  in  the  transmission  an,d 
delivery  of  messages.  A  carrier  by  telegraph  must  use  the  utmost  dili- 
gence therein." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  249. 


CHAPTER  Y. 

Common  Carriers. 

Article  I.  Common    Carriers   in    General.     §§  2168-2177. 

II.  Common   Carriers   of  Persons.     §§  21S0-2191. 

in.  Common   Carriers   of   Propertv.     §§  2194-2204. 

IV.  Common   Carriers   of   Messages.     §§  2207-2209. 


AETICLE  I. 

Common   Carriers  in   General. 

§  2168.  Common   carrier,  what. 

§  2169.  Obligation  to  accept  freight. 

§  2170.  Obligation  not  to  give  i2reference. 

§  2171.  What  preferences  he  must  give. 

§  2172.  Starting. 

§  2173.  Compensation. 

§  2174.  Obligations  of  carrier  altered  only  by  agreement. 

§  2175.  Certain  agreements  void. 

§  2176.  Effect   of   written   contract. 

§  2177.  Loss  of  valuable  letters. 

§  2168.  Common  carrier,  what.  Every  one  who  offers  to 
the  public  to  carry  persons,  property,  or  messages,  excepting 
only  telegraphic  messages,  is  a  common  carrier  of  whatever  he 
thus  offers  to  carry.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  249.] 

Carriage,  in  general:  Ante,  §§  2083  et  seq. 
Inland  and  marine  carriers,  defined:   Ante,  §  2087. 
Rights    and   liabilities    of   carriers:    See    post,    Carriers    of   Persons, 
§§2180   et  seq.;  Carriers  of  Property,  §§  2194  et  seq. 
Rights  and  duties  of  carriers  by  sea:   See  ante,  §  2088. 


615  COMMON  CARRIERS  IN  GENERAL.  §  2172 

-  Legislation  §  2168.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1134),  and  then  read:  "Every  one  who  offers  to 
the  public  to  carry  persons,  property,  or  messages,  is  a  common  carrier 
of  whatever  he  thus  offers  to   carry." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  249. 

§  2169.  Obligation  to  accept  freight.  A  common  carrier 
must,  if  able  to  do  so,  accept  and  carry  whatever  is  offered  to 
liim,  at  a  reasonable  time  and  place,  of  a  kind  that  he  under- 
takes or  is  accustomed  to  carry. 

Refusal  by  railroad  to  carry  freight  or  passengers:   Ante,  §  482. 
Want  of  room:  See  post,  §  2185. 

Legislation  §  2169.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1135. 

§  2170.  Obligation  not  to  give  preference.  A  common  car- 
rier must  not  give  preference  in  time,  price,  or  otherwise,  to 
one  person  over  another.  Every  common  carrier  of  passengers 
by  railroad,  or  by  vessel  plying  upon  waters,  lying  wholly 
within  this  state,  shall  establish  a  schedule  time  for  the  start- 
ing of  trains  or  vessel  from  their  respective  stations  or  wharves, 
of  which  public  notice  shall  be  given,  and  shall,  weather  per- 
mitting, except  in  case  of  accident  or  detention  caused  by  con- 
necting lines,  start  their  said  trains  or  vessel  at  or  within  ten 
minutes  after  the  schedule  time  so  established  and  notice  given, 
under  a  penalty  of  tAvo  hundred  and  fifty  dollars  for  each 
neglect  so  to  do,  to  be  recovered  by  action  before  any  court 
of  competent  jurisdiction,  upon  comj)laint  filed  by  the  district 
attorney  of  the  county  in  the  name  of  the  people,  and  paid  into 
the  common-school  fund  of  the  said  county.  [Amendment 
approved  1880 ;  Code  Amdts.  1880,  p.  2.] 

Time-table.     Railroad:  See  ante,  §  481;  and,  generally,  post,  §  2172. 
Legislation  §  2170.     1.  Enacted    March    21,    1872    (based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1136),  and  then  read:  "A  common  carrier  must 
not  give  preference,  in  time,  price,  or  otherwise,  to  one  person  over 
another,  except  where  expressly  authorized  by  statute." 

2.  Amended  by  Code  Amdts.  1880,  p.  2. 

3.  Amendment  by   Stats.   1901,    p.   414;   unconstitutional.     See   note, 
§  4,  ante. 

§  2171.  What  preferences  he  must  give.  A  common  carrier 
must  always  give  a  preference  in  time,  and  may  give  a  prefer- 
ence in  price,  to  the  United  States  and  to  this  state. 

Legislation  §  2171.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1137. 

§  2172.  Starting.  A  common  carrier  must  start  at  such 
time  and  place  as  he  announces  to  the  public,  unless  detained 
by  accident  or  the  elements,  or  in  order  to  connect  with  carriers 


§  2176  CIVIL  CODE.  616 

on  other  lines  of  travel.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  249.] 

starting,  time  of:  See  ante,  §  2170. 

Delay:  See  post,  §  2196. 

Legislation  §  2172.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1138),  and  then  read:  "A  common  carrier  must 
start  at  such  time  and  place  as  he  announces  to  the  public." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  249. 

3.  Amendment  by  Stats.  1901,  p.  414;  unconstitutional.  See  note, 
§  4,  ante. 

§  2173.     Compensation.     A  common  carrier  is  entitled  to  a 
reasonable  compensation  and  no  more,  which  he  may  require 
to  be  paid  in  advance.     If  payment  thereof  is  refused,  he  may' 
refuse  to  carry. 

Lien  for  freight:  Ante,  §  2144. 
Lien  on  luggage  of  passenger:  Post,  §  2191. 

Legislation  §  2173.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1139. 

§2174.     Obligations  of  carrier  altered  only  by  agreement. 

The  obligations  of  a  common  carrier  cannot  be  limited  by  gen- 
eral notice  on  his  part,  but  may  be  limited  by  special  contract. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  249.] 

Compare  with  post,  §§  2176,  2200. 

Limiting  liability  by  special  contract:  Post,  §  2175. 

Legislation  §  2174.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  iSr.  Y.  Civ.  Code,  §  1140),  and  then  read:  "The  rights  and  obliga- 
tions of  a  common  carrier  cannot  be  altered  by  notice  on  his  part,  or 
by  any  other  means,  except  a  written  agreement  between  him  and 
the  person  with  whom  he  deals." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  249. 

§  2175.  Certain  agreements  void.  A  common  carrier  can- 
not be  exonerated,  by  any  agreement  made  in  anticipation 
thereof,  from  liability  for  the  gross  negligence,  fraud,  or  will- 
ful wrong  of  himself  or  his  servants. 

Contract  exempting  one  from  liability  for  negligent  or  unlawful 
acts,  illegal:  See  ante,  §  1668. 

Legislation  §  2175.  Enacted  March  21,  1872;  based  on  Field's  Di^ft, 
N.  Y.  Civ.  Code,  §  1141. 

§  2176.  Effect  of  written  contract.  A  passenger,  consignor, 
or  consignee,  by  accepting  a  ticket,  bill  of  lading,  or  written 
contract  for  carriage,  Avith  a  knowledge  of  its  terms,  assents 
to  the  rate  of  hire,  the  time,  place,  and  manner  Jot  delivery 
therein  stated ;  and  also  to  the  limitation  stated  therein  upon 
the  amount  of  the  carrier's  liability  in  case  property  carried  in 
packages,  trunks,  or  boxes,  is  lost  or  injured,  when  the  value 
of  such  property  is  not  named;  and  also  to  the  limitation  stated 
therein  to  the  carrier's  liability  for  loss  or  injury  to  live  ani- 


617  COMMON  CARRIERS  OF  PERSONS.  §  2180 

mals  carried.  But  his  assent  to  any  other  modification  of  the 
carrier's  obligations  contained  in  such  instrument  can  be  mani- 
fested only  by  his  signature  to  the  same.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  249.] 

Legislation  §  2176.  1.  Enacted  March  21,  1872  (baserl  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1142),  (1)  the  first  sentence  then  ending  with 
the  words  "delivery  therein  stated,"  and  (2)  the  final  sentence  reading. 
"But  his  assent  to  any  other  modification  of  the  carrier's  rights  or 
obligations  contained  in  such  instrument  can  only  be  manifested  by 
his  signature  to  the  same." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  249. 

§  2177.  Loss  of  valuable  letters.  A  common  carrier  is  not 
responsible  for  loss  or  miscarriage  of  a  letter,  or  package  hav- 
ing the  form  of  a  letter,  containing  money  or  notes,  bills  of 
exchange,  or  other  papers  of  value,  unless  he  be  informed  at 
the  time  of  its  receipt  of  the  value  of  its  contents. 

Messages,  carriers  of:  See  ante,  §  2161. 
Loss  of  valuable  letters:  See  ante,  §  2177. 
Declaring  value  of  property:   See  post,  §  2200. 
Legislation  §  2177.     Added  by  Code  Amdts.  1873-74,  p.  250. 

AETICLE   II. 

Common  Carriers  of  Persons. 

§  2180.  Obligation   to    carry   luggage. 

§  2181.  Baggage  to  be  carried  by  common  carriers. 

§  2182.  Liability   for  luggage. 

§  2183.  Luggage,  how  carried  and  delivered. 

§  2184.  Obligation  to  provide  vehicles. 

§  2185.  Seats   for  passengers. 

§  2186.  Regulations   for   conduct   of  business. 

§  2187.  Fare,  when  payable. 

§  2188.  Ejection   of  passengers. 

§  2189.  Passenger  who  has  not  paid  fare. 

§  2190.  Fare  not  payable  after  ejection. 

§  2191.  Carrier's  lien. 

§  2180.  Obligation  to  carry  luggag'e.  A  common  carrier  of 
persons,  unless  his  vehicle  is  fitted  for  the  reception  of  persons 
exclusively,  must  receive  and  carry  a  reasonable  amount  of 
baggage  for  each  passenger  without  charge,  except  for  an 
excess  of  weight  over  one  hundred  pounds  to  a  passenger;  if 
such  carrier  is  a  proprietor  of  a  stage  line,  he  need  not  receive 
and  carry  for  each  passenger  l)y  such  stage  line,  without 
charge,  more  than  sixtv  pounds  of  l)aggage.  [Amendment 
approved  1905;  Stats.  1905,  p.  615.1 

Legislation  §  2180.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §1143),  and  then  read:  "A  common  carrier  of 
persons,  unless  his  vehicle  is  fitted  for  the  reception  of  ])assengers  ex- 
clusively, must  receive  and  carry  a  reasonable  amount  of  luggage  for 
each  passenger,  without  any  charge  except  for  an  excess  of  weight  over 
one  hundred  pounds  to  a  passenger." 


§  2182  CIVIL  CODE.  618 

2.  Amended  by  Code  Amdts.  1877-78,  p.  87,  (1)  changing  "passen- 
gers" to  "persons"  after  "reception  of,"  (2)  omitting  "any"  before 
"charge,"  and  (3)  adding  the  proviso,  then  reading,  "provided,  that 
if  such  carrier  be  a  proprietor  of  a  stage  line,  he  may  not  receive  and 
carry  for  each  passenger  by  such  stage  line,  without  charge,  more  than 
sixty  pounds  of  luggage." 

3.  Amendment  by  Stats.  1901,  p.  414;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  615;  the  code  commissioner  saying, 
"The  present  [former]  section  would  seem  to  i^rohibit  a  carrier  by 
stage  from  receiving  more  than  sixty  pounds  of  luggage,  wherein  it  was 
manifestly  intended  only  to  relieve  him,  at  his  election,  from  receiving 
a  greater  amount." 

§  2181,  Bag-gage  to  be  carried  by  common  carriers.  Lug- 
gage may  consist  of  whatever  the  passenger  takes  with  him 
for  his  personal  use  and  convenience,  according  to  the  habits 
or  wants  of  the  particular  class  to  which  he  belongs,  either 
with  reference  to  the  important  necessities  or  to  the  ultimate 
purposes  of  his  journey.  Luggage  within  the  meaning  of  this 
section  shall  include  the  samples,  case,  wares,  appliances  and 
catalogues  of  commercial  travelers  or  their  employers,  used 
by  thein  for  the  purpose  of  transacting  their  business  and  car- 
ried with  them  solely  for  that  purpose,  when  securely  packed 
and  locked  in  substantial  trunks  or  sample  cases  of  convenient 
shape  and  weight  for  handling.  No  crate,  cover,  or  other  pro- 
tection shall  be  required  for  any  bicycle  carried  as  luggage, 
but  no  passenger  shall  be  entitled  to  carry  as-  luggage  more 
than  one  bicvcle.  [Amendment  approved  1911 ;  Stats.  1911, 
p.  638.] 

Legislation  §  2181.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1144).  and  then  read:  "Luggage  may  consist 
of  any  articles  intended  for  the  use  of  a  passenger  while  traveling, 
or  for  his  personal  equipment." 

2.  Amended  by  Stats.  1897,  p.  4.  to  read:  "Luggage  may  consist  of 
whatever  the  passenger  takes  with  him  for  his  personal  use  and  con- 
venience, according  to  the  habits  or  wants  of  the  particular  class  to 
which  he  belongs,  either  with  reference  to  the  immediate  necessities, 
or  to  the  ultimate  purpose  of  the  journey.  No  crate,  cover,  or  other 
protection  shall  be  required  for  any  bicycle  carried  as  luggage,  but 
no  passenger  shall  be  entitled  to  carry  as  luggage  more  than  one 
bicycle." 

3.  Amended  by  Stats.  1911,  p.  638. 

§  2182.  Liability  for  luggage.  The  liability  of  a  carrier  for 
luggage  received  by  him  Avith  a  passenger  is  the  same  as  that 
of  a  common  carrier  of  property. 

Liability  of  carriers,  generally:   See  post,  §§  2194  et  seq. 
Lien  on  baggage  for  fare:  See  post,  §  2191. 

Legislation  §  2182.  Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  1145. 


619  COMMON  CARRIERS  OF  PERSONS.  §  2187 

§  2183.  Luggage,  how  carried  and  delivered.  A  common 
carrier  must  cleliA'er  every  passenger's  luggage,  whether  within 
the  prescribed  weight  or  not,  immediately  upon  the  arrival  of 
the  passenger  at  his  destination ;  and,  unless  the  vehicle  would 
be  overcrowded  or  overloaded  thereby,  must  carry  it  on  the 
same  vehicle  by  Avhich  he  carries  the  passenger  to  whom  it  be- 
longed, except  that  Avhere  luggage  is  transported  by  rail,  it 
must  be  checked  and  carried  in  a  regular  baggage-car;  and 
whenever  passengers  neglect  or  refuse  to  have  their  luggage 
so  checked  and  transported,  it  is  carried  at  their  risk. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  250.] 
Duty  to  furnish  check:  See  ante,  §  479. 
Legislation  §  2183.     1.  Enacted    March    21,    1872    (based    on    Field's 

Draft,  IST.  Y.  Civ.  Code  §  1146),  the  section  then  ending  with  the  words 

"to  whom  it  belongs,"  the  latter  word  being  changed  to  "belonged"  and 

the  exception  added  in  1873-74. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  2-50. 

§  2184.     Obligation  to  provide  vehicles.     A  common  carrier 
of  persons  must  provide  a  sufficient  number  of  vehicles  to  ac- 
commodate all  the  passengers  Avho  can  be  reasonably  expected 
to  require  carriage  at  any  one  time. 
Seats  for  passengers:   See  post,  §  218-5. 

Legislation  §  2184.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1147. 

§  2185.  Seats  for  passeng-ers.  A  common  carrier  of  persons 
must  provide  evoi-y  passenger  with  a  seat.  He  must  not  over- 
load his  vehicle  by  receiving  and  carrying  more  passengers 
than  its  rated  capacity  alloAvs. 

Compare  with  §  483,  ante. 

Duty  to  carry  all  who  apply:   See  ante,  §  2169. 

Legislation  §  2185.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1148. 

§  2186.     Regulations  for  conduct  of  business.     A  common 
carrier  of  persons  may  make  rules  for  the  conduct  of  his  busi- 
ness, and  may  require  passengers  to  conform  to  them,  if  they 
are  lawful,  public,  uniform  in  their  application,  and  reasonable. 
RvUes  and  regulations:  See  ante,  §  465,  subds.  la,  11,  and  §  484. 
Legislation  §  2186.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1149. 

§  2187.  Fare,  when  payable.  A  common  carrier  may  de- 
mand the  fare  of  passengers,  eitlier  at  starting  or  at  any  subse- 
quent time. 

Penalty  for  overcharge:   Pen.  Code,  §  52.5. 

Legislation  §  2187.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1150. 


§  2194  CIVIL  CODE.  620 

§  2188.     Ejection  of  passengers.     A  passenger  who  refuses 
to  pay  his  fare  or  to  conform  to  any  lawful  regulation  of  the 
carrier,  may  be  ejected  from  the  vehicle  by  the  carrier.     But 
this  must  be  done  with  as  little  violence  as  possible,  and  at 
any  usual  stopping-place  or  near  some  dAvelling-house. 
Ejecting  passenger  for  not  paying  fare:  Ante,  §  487. 
Legislation  §  2188.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
JSr.  Y.  Civ.  Code,  §  1151. 

§  2189.  Passenger  who  has  not  paid  fare.  A  passenger 
upon  a  railroad  train  avIio  has  not  paid  his  fare  before  enter- 
ing the  train,  if  he  has  been  afforded  an  opportunity  to  do  so, 
must,  upon  demand,  pay  ten  per  cent  in  addition  to  the  regular 
rate. 

Ejecting  passenger  for  non-payment  of  fare:  Ante,  §  487. 
Legislation  §  2189.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1151. 

§  2190.  Fare  not  payable  after  ejection.  After  having 
ejected  a  passenger,  a  carrier  has  no  right  to  require  the  pay- 
ment of  any  part  of  his  fare. 

Legislation  §  2190.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1152. 

§2191.  Carrier's  lien.  A  common  carrier  has  a  lien  upon 
the  luggage  of  a  passenger  for  the  payment  of  such  fare  as  he 
is  entitled  to  from  him.  This  lien  is  regulated  by  -the  title  on 
liens. 

See  general  principle  stated  in  regard  to  lien  for  work  and  labor 
performed  about  personalty:  Post,  §  3051. 

Lien  for  freight:  Ante,  §  2144. 

Legislation  §  2191.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1153. 

AETICLE  III. 

Common  Carriers  of  Property. 

§  2194.  Liability  of  inland  carriers  for  loss. 

§  2195.  When  exemptions  do  not  apply. 

§  2196.  Liability   for   delay. 

§  2197.  Liability  of  marine  carriers. 

§  2198.  Same. 

§  2199.  Perils  of  sea,  what. 

§  2200.  Consignor  of  valuables  to  declare  their  nature. 

§  2201.  Delivery  of  freight  beyond  usual  route. 

§  2202.  Proof  to  be  given  in  case  of  loss. 

§  2203.  Carrier's  services,  other  than   carriage   and  delivery, 

§  2204.  Sale  of  perishable  property  for  freight. 

§  2194.  Liability  of  inland  carriers  for  loss.  Unless  the  con- 
signor accompanies  the  freight  and  retains  exclusive  control 
thereof,  an  inland  common  carrier  of  property  is  liable,  from 


621  COMMON  CARRIERS  OF  PROPERTY.  §  2198 

the  time  that  he  accepts  until  he  relieves  himself  from  liability 
pursuant  to  sections  two  thousand  one  hundred  and  eighteen 
to  two  thousand  one  hundred  and  twenty-two,  for  the  loss  or 
injury  thereof  from  any  cause  whatever,  except : 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous 
action,  of  the  property  itself ; 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of  this 
state ; 

3.  The  act  of  the  law ;  or, 

4.  Any  irresistible  superhuman  cause.. 

Inland  carrier,  defined:  See  ante,  §  2087. 
Liability  as  warehouseman:  See  ante,  §  2120. 
Termination  of  liability:   See  ante,  §§  2118-2121. 
Selling  perishable  articles:   See  infra,  §  2204. 

Legislation  §  2194.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1154. 

§  2195.  When  exemptions  do  not  apply.  A  common  car- 
rier is  liable,  even  in  the  cases  excepted  by  the  last  section,  if 
his  want  of  ordinary  care  exposes  the  property  to  the  cause  of 
the  loss.      [Amendment  approved  1905;  S^tats.  1905,  p.  615.] 

Legislation  §  2195.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1155),  and  then  read:  "A  common  carrier  is 
liable,  even  in  the  cases  excepted  by  the  last  section,  if  his  ordinary 
negligence  exposes  the  property  'to  the  cause  of  the  loss." 

2.  Amendment  by  Stats.  1901,  p.  414;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  615. 

§  2196.  Liability  for  delay.  A  common  carrier  is  liable  for 
delay  only  Avhen  it  is  caused  by  his  want  of  ordinary  care  and 
diligence.  [Amendment  approved  1874 ;  Code  Amdts.  1873-74, 
p.  251.] 

Legislation  §  2196.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1156),  and  then  read:  "A  common  carrier  is 
liable  for  delay  only  when  it  is  the  effect  of  his  ordinary  negligence." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  251. 

§2197.  Liability  of  marine  carriers.  A  marine  carrier  is 
liable  in  like  manner  as  an  inland  carrier,  except  for  loss  or 
injury  caused  by  the  perils  of  the  sea  or  fire. 

Legislation  §  2197.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1157. 

§  2198.  Same.  Tlic  liability  of  a  common  carrier  by  sea  is 
further  regulated  by  acts  of  Congress. 

Duties  and  rights  defined  by  acts  of  Congress:  See  also,  ante,  §  2088. 
Legislation  §  2198.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1158. 


§  2202  CIVIL  CODE.  622 

.§  2199.     Perils  of  sea,  what.     Perils  of  the  sea  are  from  : 

1.  Storms  and  Avaves ; 

2.  Eocks,  shoals,  and  rapids ; 

3.  Other  obstacles,  though  of  human  origin ; 

4.  Changes  of  climate ; 

5.  The  confinement  necessary  at  sea ; 

6.  Animals  peculiar  to  the  sea ;  and, 

7.  All  other  dangers  peculiar  to  the  sea. 

Legislation  §  2199.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1159. 

§  2200.     Consignor  of  valuables  to  declare  their  nature.    A 

common  carrier  of  gold,  silver,  platina,  or  precious  stones,  or 
of  imitations  thereof,  in  a  manufactured  or  unmanufactured 
state ;  of  timepieces  of  any  description ;  of  negotiable  paper  or 
other  valuable  writings ;  of  pictures,  glass,  or  chinaware ;  of 
statuary,  silk,  or  laces ;  or  of  plated  ware  of  any  kind,  is  not 
liable  for  more  than  fifty  dollars  upon  the  loss  or  injury  of 
any  one  package  of  such  articles,  unless  he  has  notice,  upon 
his  receipt  thereof,  by  mark  upon  the  package  or  otherwise, 
of  the  nature  of  the  freight;  nor  is  such. carrier  liable  upon 
any  package  carried  for  more  than  the  value  of  the  articles 
named  in  the  receipt  or  the  bill  of  lading.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  251.] 

Legislation  §  2200.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft.  N.  Y.  Civ.  Code,  §  1160. 

2.  Amended  by  Code  Amdts.  1873-71,  p.  251,  inserting  (1)  "of  statu- 
ary, silk,  or  laces;  or  of  plated  ware  of  any  kind";  (2)  "nor  is  such 
carrier  liable  upon  any  package  carried  for  more  than  the  value  of  the 
articles  named  in  the  receipt  or  tlie  bill  of  lading." 

§  2201.  Delivery  of  freight  beyond  usual  route.  If  a  com- 
mon carrier  accepts  freight  for  a  place  beyond  his  usual  route, 
he  must,  unless  he  stipulates  otherwise,  deliver  it  at  the  end 
of  his  route  in  that  direction  to  some  other  competent  carrier 
carrying  to  the  place  of  address,  or  connected  with  those  who 
thus  carry,  and  his  liability  ceases  upon  making  such  deliver3^ 
Delivery,  in  general:   See    ante,  §§  2118,  2119. 

Legislation  §  2201.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1161. 

§  2202.  Proof  to  be  given  in  case  of  loss.  If  freight  ad- 
dressed to  a  place  beyond  the  usual  route  of  the  common  car- 
rier who  first  received  it  is  lost  or  injured,  he  must,  within  a 
reasonable  time  after  demand,  give  satisfactory  proof  to  the 
consignor  that  the  loss  or  injury  did  not  occur  while  it  was  in 
his  charge,  or  he  Avill  be  himself  liable  therefor. 

Legislation  §  2202.     Eaacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1162. 


623  COMMON  CARRIERS  OF  MESSAGES.  §  2208 

§  2203.     Carrier's  services,  other  than  carriage  and  delivery. 

In  respect  to  any  service  rendered  by  a  common  carrier  about 
freight,  other  than  its  carriage  and  delivery,  his  rights  and 
obligations  are  defined  by  the  titles  on  deposit  and  service. 

Deposit:  See  ante,  §§  1813  et  seq. 
Service:  See  ante,  §§  1965  et  seq. 

Legislation  §  2203.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1163. 

§  2204.  Sale  of  perishable  property  for  freight.  If,  from 
any  cause  other  than  A\'ant  of  ordinary  care  and  diligence  on 
his  part,  a  common  carrier  is  unable  to  deliver  perishable  prop- 
erty transported  by  him,  and  collect  his  charges  thereon,  he 
may  cause  the  property  to  be  sold  in  open  market  to  satisfy 
his  lien  for  freightage. 

Penalty  for  overcharges:  Pen.  Code,  §  525. 

Lien  for  freight:  See  ante,  §  2144. 

Legislation  §  2204.     Added  by  Code  Amdts.  1873-74,  p.  251. 

ARTICLE  IV. 

Common  Carriers   of  Messages. 

§  2207.     Order   of   transmission   of   telegraphic   messages. 

§  2208.     Order  in  other  cases. 

§  2209.     Damages  when  message  is  refused   or  postponed. 

§2207.     Order  of  transmission  of  telegraphic  messages.     A 

carrier  of  messages  by  telegraph  must,  if  it  is  practicable, 
transmit  every  such  message  immediately  upon  its  receipt. 
But  if  this  is  not  practicable,  and  several  messages  accumulate 
upon  his  hands,  he  must  transmit  them  in  the  following  order : 

1.  Messages  from  public  agents  of  the  United  States  or  of 
this  state,  on  public  business ; 

2.  Messages  intended  in  good  faith  for  immediate  publica- 
tion in  newspapers,  and  not  for  any  secret  use ; 

3.  Messages  giving  information  relating  to  the  sickness  or 
death  of  any  person; 

4.  Other  messages  in  the  order  in  Avhich  they  were  received. 

Carriers  of  messages:  See  ante,  §§  2161,  2162. 

Neglect  or  postponement  in  transmission:  See  Pen.  Code,  §  638. 

Legislation  §  2207.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1164. 

2.  Amendment  by  Stats.  1901,  p.  414;  unconstitutional.  See  note,  §  4, 
ante. 

§  2208.  Order  in  other  cases.  A  common  carrier  of  mes- 
sages, otherwise  than  l)y  telegraph,  must  transmit  messages  in 
the  order  in  which  he  receives  them,  except  messages  from 
agents  of  the  United  States  or  of  this  state,  on  public  business, 
to  which  he  must  always  give  priority.     But  he  may  fix  upon 


§  2215  CIVIL  CODE.  624 

certain  times  for  the  simultaneous  transmission  of  messages 
previously  received. 

Delivery  of  messages:  See  ante,  §  2161. 

Legislation  §  2208.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1165. 

2.  Amendment  by  Stats.  1901,  p.  415;  unconstitutional.  See  note,  §  4, 
ante. 

§  2209.     Damages  v^^hen  message  is  refused  or  postponed. 

Every  jierson  whose  messapre  is  refused  or  postponed,  contrary 
to  the  provisions  of  this  chapter,  is  entitled  to  recover  from 
the  carrier  his  actual  damages,  and  fifty  dollars  in  addition 
thereto. 

Refusal  to  receive  message:   See  post,  §  3315. 

Legislation  §  2209.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1166. 


TITLE  VIII. 

Trusts. 

Chapter  I.     Trusts  in   General.     Articles  I-III.     §§  2215-2244. 

II,     Trusts    for   the    Benefit    of    Third   Persons.     Articles    I-VI. 
§§  2250-2289. 

CHAPTER  I. 

Trusts  in  General. 

Article  I.     Nature  and   Creation   of  a  Trust.     §§  2215-2224. 
II.     Obligations    of    Trustees.     §§  2228-2239. 
III.     Obligations  of  Third  Persons.     §§  2243,  2244. 

ARTICLE  I. 

Nature  and  Creation  of  a  Trust. 

§  2215.  Trusts  classified. 

§  2216.  Voluntary  trust,  what. 

§  2217.  Involuntary  trust,  what. 

*      §  2218.  Parties  to  the  contract. 

•§2219.  What  constitutes  one  a  trustee. 

§  2220.  For  what  purpose  a  trust  may  be  created. 

§  2221.  Voluntary  trust,  how  created  as  to  trustor. 

§  2222.  How  created  as  to  trustee. 

§  2223.  Involuntary  trustee,  who  is. 

§  2224.  Involuntary  trust  resulting  from  fraud,  mistake,  etc. 

§  2215.     Trusts  classified.     A  trust  is  either  : 

1.  Voluntary ;  or, 

2.  Involuntary. 

Legislation  §  2215.     Euacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1167. 


625  NATURE  AND  CREATION  OP  TRUSTS.  §  2221 

§  2216.  Voluntary  trust,  what.  A  voluntary  trust  is  an 
obligation  arising  out  of  a  personal  confidence  reposed  in,  and 
voluntarily  accepted  by,  one  for  the  benefit  of  another. 

Legislation  §  2216.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1168. 

§  2217.  Involuntary  trust,  what.  An  involuntary  trust  is 
one  which  is  created  by  operation  of  law. 

Involuntary  trust:   See  post,  §§  2223,  2224,  2243. 

Legislation  §  2217.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1169. 

§  2218.     Parties  to  the  contract.     The  person  whose  confi- 
dence creates  a  trust  is  called  the  trustor ;  the  person  in  whom 
the  confidence  is  reposed  is  called  the  trustee ;  and  the  person 
for  whose  benefit  the  trust  is  created  is  called  the  beneficiary. 
Legislation  §  2218.  '  Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1170. 

§  2219.  What  constitutes  one  a  trustee.  Every  one  who 
voluntarily  assumes  a  relation  of  personal  confidence  with  an- 
other is  deemed  a  trustee,  within  the  meaning  of  this  chapter, 
not  only  as  to  the  person  who  reposes  such  confidence,  but  also 
as  to  all  persons  of  whose  affairs  he  thus  acquires  information 
which  was  given  to  such  person  in  the  like  confidence,  or  over 
whose  affairs  he,  by  such  confidence,  obtains  any  control. 

Legislation  §  2219.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1171. 

§  2220.  For  what  purpose  a  trust  may  be  created.  A  trust 
may  be  created  for  any  purpose  for  which  a  contract  may  law- 
fully be  made,  except  as  otherwise  prescribed  by  the  titles  on 
uses  and  trusts  and  on  transfers. 

Legislation  §  2220.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1172. 

§  2221.  Voluntary  trust,  how  created  as  to  trustor.  Sub- 
ject to  the  provisions  of  section  eight  hundred  and  fifty-two,  a 
voluntary  trust  is  created,  as  to  the  trustor  and  beneficiary,  by 
any  words  or  acts  of  the  trustor,  indicating  with  reasonable 
certainty : 

1.  An  intention  on  the  part  of  the  trustor  to  create  a  trust; 
and, 

2.  The  subject,  inirpose,  and  beneficiary  of  the  trust. 

Creation  of  involuntary  trust:  See  post,  §§  2223,  2224. 
Trusts  for  benefit  of  third  persons:  See  post,  §  2251. 

Legislation  §  2221.     Enacted  March  21,  1872;  based  on  Field's  Drali^ 
N.  Y.  Civ.  Code,  §  1173. 
Civ.  Code — 40 


§  2228  CIVIL  CODE.  626 

§  2222.  How  created  as  to  trustee.  Subject  to  the  provi- 
sions of  section  eight  hundred  and  fifty-two,  a  voluntary  trust 
is  created,  as  to  the  trustee,  by  any  words  or  acts  of  his  indi- 
cating, with  reasonable  certainty : 

1.  His  acceptance  of  the  trust,  or  his  acknoAvledgment,  ma-de 
upon  sufficient  consideration,  of  its  existence ;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

Legislation  §  2222.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1174. 

§  2223.  Involuntary  trustee,  who  is.  One  who  wrongfully 
detains  a  thing  is  an  involuntary  trustee  thereof,  for  the  benefit 
of  the  owner. 

Involuntary  trustee,  who  is:   See  ante,  §  2217;  post,  §  2243. 
Compensation  of  involuntary  trustee:   See  post,  §§  2274,  2275. 
Legislation  §  2223.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1175. 

§  2224.     Involuntary  trust  resulting-  from  fraud,  mistake,  etc. 

One  who  gains  a  thing  by  fraud,  accident,  mistake,  undue  in- 
fluence, the  violation  of  a  trust,  or  other  wrongful  act,  is,  un- 
less he  has  some  other  and  better  right  thereto,  an  involuntary 
trustee  of  the  thing  gained,  for  the  benefit  of  the  person  who 
would  otherwise  have  had  it. 

Involuntary  trustee,  who  is:  See  ante,  §§  2217,  2223;  post,  §  2243. 

Compensation  of  involuntary  trustee:  Post,  §§  2274,  2275. 

Legislation  §  2224.  Enacted  March  21,  1872;  based  on  Fields  Draft, 
N.  Y.  Civ.  Code,  §  1176. 

AETICLE  II.' 

Obligations  of  Trustees. 

§  2228.  Trustee's  obligation  to  good  faith. 

§  2229.  Trustee  not  to  use  property  for  his  own  profit. 

§  2230.  Certain  transactions  forbidden. 

§  2231.  Trustee's  influence  not  to  be  used  for  his  advantage. 

§  2232.  Trustee  not  to  assume  a  trust  adverse  to  interest  of  beneficiary. 

§  2233.  To  disclose  adverse  interest. 

§  2234.  Trustee  guilty  of  fraud,  when. 

§  2235.  Presumption  against  trustees. 

§  2236.  Trustee  mingling  trust  property  with  his  own. 

§  2237.  Measure  of  liability  for  breach  of  trust. 

§  2238.  Same. 

§  2239.  Co-trustees,  how  far  liable  for  each  other. 

§2228.  Trustee's  oblig-ation  to  good  faith.  In  all  matters 
connected  Avith  his  trust,  a  trustee  is  bound  to  act  in  the  high- 
est good  faith  toAvard  his  beneficiary,  and  may  not  obtain  any 
advantage  therein  over  the  latter  by  the  slightest  misrepre- 
sentation, concealment,  threat,  or  adverse  pressure  of  any  kind. 
Legislation  §  2228.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1177. 


627  OBLIGATIONS    OP    TRUSTEES.  §  2232 

§  2229.     Trustee  not  to  use  property  for  his  own  profit.     A 

trustee  may  not  use  or  deal  with  the  trust  property  for  his 
own  profit,  or  for  any  other  purpose  unconnected  with  the 
trust,  in  any  manner. 

Purchaser  from  trustee  charged  with  the  trust  when:  Post,  §  2243. 

Presumption  of  undue  influence  on  transactions  between  the  trustee 
and  beneficiary:  Post,  §  2235. 

Violations  of  duties  by  trustee  are  fraudulent:  Post,  §  2234. 

Legislation  §  2229.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  117S. 

§  2230.  Certain  transactions  forbidden.  Neither  a  trustee 
nor  any  of  his  agents  may  take  part  in  any  transaction  con- 
cerning the  trust  in  which  he  or  any  one  for  whom  he  acts  as 
agent  has  an  interest,  present  or  contingent,  adverse  to  that 
of  his  beneficiary,  except  as  follows : 

1.  When  the  beneficiary,  having  capacity  to  contract,  with  a 
full  knowledge  of  the  motives  of  the  trustee,  and  of  all  other 
facts  concerning  the  transaction  which  might  affect  his  own 
decision,  and  without  the  use  of  any  infiuence  on  the  part  of 
the  trustee,  permits  him  to  do  so ; 

2.  When  the  beneficiary  not  having  capacity  to  contract,  the 
proper  court,  upon  the  like  information  of  the  facts,  grants 
the  like  permission ;  or, 

3.  When  some  of  the  beneficiaries  having  capacity  to  con- 
tract, and  some  not  having  it,  the  former  grant  permission  for 
themselves,  and  the  proper  court  for  the  latter,  in  the  manner 
above  prescribed. 

Duty  to  inform  beneficiary:  Post,  §  2233. 
Undertaking  inconsistent  trust:  Post,  §  2232. 

Legislation  §  2230.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1179. 

§  2231.     Trustee's  influence  not  to  be  used  for  his  advantage. 

A  trustee  may  not  use  the  influence  which  his  position  gives 
him  to  obtain  any  advantage  from  his  beneficiary. 

Legislation  §  2231.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1180. 

§  2232.  Trustee  not  to  assume  a  trust  adverse  to  interest  of 
beneficiary.  No  trustee,  so  long  as  he  remains  in  the  trust, 
may  undertake  another  trust  adverse  in  its  nature  to  the  in- 
terest of  his  beneficiary  in  the  subject  of  the  trust,  without  the 
consent  of  the  latter. 

Compare  ante,  §  2230. 

Trustee's  duty  to  disclose  adverse  interest:  Compare  with  §  2233, 
post. 

Removal  of  trustee:  Post,  §§  2282,  2283. 

Legislation  §  2232.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1181. 


§  2237  CIVIL  CODE.  628 

§  2233.  To  disclose  adverse  interest.  If  a  trustee  acquires 
any  interest,  or  becomes  charged  with  any  duty,  adverse  to  the 
interest  of  his  beneficiary  in  the  subject  of  the  trust,  he  must 
immediately  inform  the  latter  thereof,  and  may  be  at  once 
removed. 

Legislation  §  2233.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1182. 

§  2234.  Trustee  guilty  of  fraud,  Vi^hen.  Every  violation  of 
the  provisions  of  the  preceding  sections  of  this  article  is  a 
fraud  against  the  beneficiary  of  a  trust. 

Legislation  §  2234.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1183. 

§  2235.  Presumption  against  trustees.  All  transactions  be- 
tween a  trustee  and  his  beneficiary  during  the  existence  of  the 
trust,  or  while  the  influence  acquired  by  the  trustee  remains, 
by  which  he  obtains  any  advantage  from  his  beneficiary,  are 
presumed  to  be  entered  into  by  the  latter  without  sufficient 
consideration,  and  under  undue  influence. 

Legislation  §  2235.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1184. 

§  2236.     Trustee  mingling  trust  property  with  his  own.    A 

trustee  who  willfully  and  unnecessarily  mingles  the  trust  prop- 
erty with  his  own,  so  as  to  constitute  himself  in  appearance 
its  absolute  owner,  is  liable  for  its  safety  in  all  events,  and  for 
the  value  of  its  use.  [Amendment  approved  1905;  Stats.  1905, 
p.  615.] 

Legislation  §  2236.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1185),  and  then  read:  "A  trustee  who  will- 
fully and  unnecessarily  mingles  the  trust  property  with  his  own,  so  as 
to  constitute  himself  in  appearance  its  absolute  owner,  is  liable  for 
its  safety  in  all  events." 

2.  Amendment  by  Stats.  1901,  p.  415;  uucoustitutioual.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  615. 

§  2237.  Measure  of  liability  for  breach  of  trust.  A  trustee 
who  uses  or  disposes  of  the  trust  property,  contrary  to  section 
two  thousand  two  hundred  and  twenty-nine,  may,  at  the  option 
of  the  beneficiary,  be  required  to  account  for  all  profits  so 
made,  or  to  pay  the  value  of  its  use,  and,  if  he  has  disposed 
thereof,  to  replace  it,  with  its  fruits,  or  to  account  for  its 
proceeds,  with  interest. 

Liability  for  non-investment  of  funds:  See  post,  §  2262. 
Degree  of  diligence  requisite:  Post,  §  2259. 

Legislation  §  2237.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1186. 


629  TRUSTS.       OBLIGATIONS    OF    THIRD   PERSONS.  §  2244 

§  2238.  Same.  A  trustee  who  uses  or  disposes  of  the  trust 
property  in  any  manner  not  authorized  by  the  trust,  but  in 
good  faith,  and  with  intent  to  serve  the  interests  of  the  bene- 
ficiary, is  liable  only  to  make  good  whatever  is  lost  to  the 
beneficiary  by  his  error. 

Legislation  §  2238.     Enacted  March  21,  1872;  basecT  on  Field's  Draft, 

N".  Y.  Civ.  Code,  §  1187. 

§  2239.     Co-trustees,  how  far  liable  for  each  other.     A  trus- 
tee is  responsible  for  the  Avrongful  acts  of  a  co-trustee  to  which 
he  consented,  or  which,  by  his  negligence,  he  enabled  the  latter 
to  commit,  but  for  no  others. 
Compare  with  §  2268,  post. 

Legislation  §  2239.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1188. 

ARTICLE  III. 

Obligations  of  Third  Persons.     . 

§  2243.     Third  persons,  when  involuntary  trustees. 

§  2244.     When  third  person  must  see  to  application  of  trust  property. 

§  2243.  Third  persons,  when  involuntary  trustees.  Every 
one  to  whom  property  is  transferred  in  violation  of  a  trust, 
holds  the  same  as  an  involuntary  trustee  under  such  trust, 
unless  he  purchased  it  in  good  faith,  and  for  a  valuable  con- 
sideration. 

Involuntary  trustees,  who  are:  See  ante,  §§  2217,  2223,  2224. 
Legislation  §  2243.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1189. 

§  2244.  When  third  person  must  see  to  application  of  trust 
property.  One  who  actually  and  in  good  faith  transfers  any 
money  or  other  property  to  a  trustee,  as  such,  is  not  bound  to 
see  to  the  application  thereof,  and  his  rights  can  in  no  way  be 
prejudiced  by  a  misapplication  thereof  by  the  trustee.  Other 
persons  must,  at  their  peril,  see  to  the  proper  application  of 
money  or  other  property  paid  or  delivered  by  them. 

Legislation  §  2244.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1190. 


§  2254  CIVIL  CODE.  .  630 

CHAPTER  ir. 

Trusts  for  the  Benefit  of  Third  Persons. 

Article  I.  Nature  and  Creation  of  the  Trust.     §§2250-2254. 

II.  Obligations  of  Trustees.     §§  2258-2263. 

m.  Powers  of  Trustees.     §§  2267-2269. 

IV.  Eights  of  Trustees.     §§  2273-2275. 

V.  Termination  of  the  Trust.     §§  2279-2283. 

VI.  Succession    or   Appointment   of   New   Trustees.     §§  2287-2289. 

AETICTLE  I. 

Nature  and  Creation  of  the  Trust. 

§  2250.*  Who  are  trustees  within  scope  of  this  chapter. 

§  2251.  Creation   of  trust. 

§  2252.  Trustees  appointed  by  court. 

§2253.  Declaration   of  trust." 

§  2254.  Same. 

§  2250.     Who  are  trustees  within  scope  of  this  chapter.     The 

provisions  of  this  chaptov  apply  only  to  express  trusts,  created 
for  the  benefit  of  another  than  the  trustor,  and  in  which  the 
title  to  the  trust  property  is  vested  in  the  trustee ;  not  includ- 
ing, however,  those  of  executors,  administrators,  and  guard- 
ians, as  such. 

Legislation  §  2250.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1191. 

§  2251.  Creation  of  trust.  The  mutual  consent  of  a  trustor 
and  trustee  creates  a  trust  of  which  the  beneficiary  may  take 
advantage  at  any  time  prior  to  its  rescission. 

Kevoking  trust.     Beneficiary's  consent  necessary:   Post,  §  2280. 
Promise  for  benefit  of  third  person:  See  ante,  §  1559. 
Legislation  §  2251.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1192. 

§  2252.  Trustees  appointed  by  court.  AVhen  a  trustee  is 
appointed  ])y  a  court  or  public  of^cer,  as  such,  such  court  or 
officer  is  the  trustor,  within  the  meaning  of  the  last  section. 

Legislation  §  2252.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code, §  1193. 

§  2253.  Declaration  of  trust.  The  nature,  exteitt,  and 
object  of  a  trust  are  expressed  in  the  declaration  of  trust. 

Legislation  §  2253.     Enacted  March  21.  1872;  "based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1194. 

§  2254.  Same.  All  declarations  of  a  trustor  to  his  trustees, 
in  relation  to  the  trust,  before  its  acceptance  by  the  trustees, 
or  any  of  them,  are  to  be  deemed  part  of  the  declaration  of  the 
trust,  except  that  when  a  declaration  of  trust  is  made  in  writ- 


631  OBLIGATIONS  OF  TRUSTEES.  §  2261 

ing,  all  previous  declarations  by  the  same  trustor  are  merged 
therein. 

Legislation  §  2254.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1195. 

ARTICLE  n. 

Obligations  of  Trustees. 

§  2258.  Trustees  must  obey  declaration  of  trust. 

§  2259.  Degree  of  care  and  diligence  in  execution  of  trust. 

§  2260.  Duty  of  trustee  as  to  appointment  of  successor. 

§  2261.  Investment  of  money  by  trustee. 

§  2262.  Interest,  simple  or  compound,  on  omission  to  invest  trust  moneys. 

§  2263.  Purchase  by  trustee  of  claims  against  trust  fund. 

§  2258.  Trustees  must  obey  declaration  of  trust.  A  trustee 
must  fulfill  the  purpose  of  the  trust,  as  declared  at  its  creation, 
and  must  follow  all  the  directions  of  the  trustor  given  at  that 
time,  except  as  modified  by  the  consent  of  all  parties  inter- 
ested, in  the  same  manner,  and  to  the  same  extent,  as  an 
employee. 

Trustee,  must  follow  declaration  of  trust:  Compare  with  duty  of  em- 
ployee, §  1981,  ante. 

Authority  of  trustee,  generally:  See  post,  §  2267. 

Legislation  §  2258.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1196. 

§  2259.     Degree  of  care  and  diligence  in  execution  of  trust. 

A  trustee,  whether  he  receives  any  compensation  or  not,  must 
use  at  least  ordinary  care  and  diligence  in  the  execution  of  his 
trust. 

Obligations  of  trustees:  See,  generally,  ante,  §§  2228  et  seq. 
Legislation  §  2259.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1197. 

§  2260.     Duty  of  trustee  as  to  appointment  of  successor.     If 

a  trustee  procures  or  assents  to  his  discharge  from  his  office, 
before  his  trust  is  fully  executed,  he  must  use  at  least  ordinary 
care  and  diligence  to  secure  the  appointment  of  a  trustworthy 
successor  before  accepting  his  own  final  discharge. 

Succession  or  appointment  of  new  trustees:  See  post,  §§  2287  et  seq. 
Legislation  §  2260.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1198. 

§  2261.  Investment  of  money  by  trustee.  A  trustee  must 
invest  money  I'oceived  l)y  him  under  the  trust,  as  fast  as  he 
collects  a  sufficient  amount,  in  such  manner  as  to  afford  rea- 
sonable security  and  interest  for  the  same. 

Legislation  §  2261.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y-.  Civ.  Code,  §  1199. 


§  2269  CIVIL  CODE.  632 

§  2262.  Interest,  simple  or  compound,  on  omission  to  invest 
trust  moneys.  If  a  trustee  omits  to  invest  the  trust  moneys 
according  to  the  last  section,  he  must  pay  simple  interest 
thereon,  if  such  omission  is  negligent  merely,  and  compound 
interest  if  it  is  willful. 

Trustee's  liability  for  interest:  Compare  with  §  2237,  ante. 
Legislation  §  2262.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1200. 

§  2263.  Purchase  by  trustee  of  claims  against  trust  fund. 
A  trustee  cannot  enforce  any  claim  against  the  trust  property 
which  he  purchases  after  or  in  contemplation  of  his  appoint- 
ment as  trustee ;  but  he  may  be  allowed,  by  any  competent 
court,  to  charge  to  the  trust  property  what  he  has  in  good  faith 
paid  for  the  claim,  upon  discharging  the  same. 

Purchasing  debts  against  the  trust  estate  prohibited:  See  ante, 
§  2230. 

Legislation  §  2263.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1201. 

ARTICLE  III. 

Powers  of  Trustees. 

§  2267.     Trustee's  powers  as  agent. 

§  2268.     All  must  act. 

§  2269.     Discretionary  powers. 

§2267.  Trustee's  pov^ers  as  agent.  A  trustee  is  a  general 
agent  for  the  trust  property.  His  authority  is  such  as  is  con- 
ferred upon  him  by  the  declaration  of  trust  and  by  this  chapter, 
and  none  other.  His  acts,  within  the  scope  of  his  authority, 
bind  the  trust  property  to  the  same  extent  as  the  acts  of  an 
agent  bind  his  principal. 

Powers  to  two  or  more  trustees:  See  post,  §  2268,  and  ante,  §  860. 
Agent's  acts  binding  principal:   See  post,  §§  2330-2339. 
For  what  purposes  trusts  may  be  created:  See  ante,  §§"857,  2220. 
Legislation  §  2267.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1202. 

§  2268.     All  must  act.     "Where  there  are  several  co-trustees, 
all  must  unite  in  any  act  to  bind  the  trust  property,  unless 
the  declaration  of  trust  otherwise  provides^. 
Suirvival  of  trust:   See  post,  §  228S. 
Liability  for  acts  of  co-trustee:  See  ante,  §  2239. 
Executors,   when   one    or   majority  may   act:    See    Code    Civ.    Proc, 
§  1355. 
Exercise  of  powers  vested  in  several:   See  ante,  §  SCO. 
Legislation  §  2268.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1203. 

§  2269.  Discretionary  powers.  A  discretionary  power  con- 
ferred upon  a  trustee  is  presumed  not  to  be  left  to  his  arbitrary 


633  RIGHTS  OF  TRUSTEES.  §  2275 

discretion,  but  may  be  controlled  by  the  proper  court  if  not 
reasonably  exercised,  unless  an  absolute  discretion  is  clearly 
conferred  by  the  declaration  of  trust. 

Legislation  §  2269.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1204. 

AETICLE  IV. 

Rights  of  Trustees. 

§  2273.     Indemnification  of  trustee. 
§  2274.     Compensation  of  trustee. 
§  2275.     Involuntary  trustee. 

§  2273.  Indemnification  of  trustee.  A  trustee  is  entitled  to 
the  repayment,  out  of  the  trust  property,  of  all  expenses  actu- 
ally and  properly  incurred  by  him  in  the  performance  of  his 
trust.  He  is  entitled  to  the  repayment  of  even  unlaAvful  ex- 
penditures, if  they  were  productive  of  actual  benefit  to  the 
estate. 

Reimbursement  on  purchase  of  claims  against  estate:  See  ante,  §  2263. 
Legislation.§  2273.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1205. 

§  2274.  Compensation  of  trustee.  Except  as  provided  in 
section  seventeen  hundred  of  the  Code  of  Civil  Procedure, 
when  a  declaration  of  trust  is  silent  upon  the  subject  of  com- 
pensation the  trustee  is  entitled  to  the  same  compensation  as 
an  executor.  If  it  specifies  the  amount  of  his  compensation, 
he  is  entitled  to  the  amount  thus  specified  and  no  more.  If  it 
directs  that  he  shall  be  allowed  a  compensation,  but  does  not 
specify  the  rate  or  amount,  he  is  entitled  to  such  compensation 
as  may  be  reasonable  under  the  circumstances.  If  there  are 
two  or  more  trustees  the  compensation  shall  be  apportioned 
among  the  trustees  according  to  the  services  rendered  by  them 
respectively.     [Amendment  approved  1909  ;  Stats.  1909,  p.  252.] 

Compensation  of  executors;  See  Code  Civ.  Proc,  §  1618. 

Involuntary  trustee  entitled  to  no  compensation  when:  See  ante, 
§  2275. 

Legislation  §2274.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1206),  and  then  read:  "When  a  declaration 
of  trust  is  silent  upon  the  subject  of  compensation,  the  trustee  is  en- 
titled to  the  same  compensation  as  an  executor.  If  it  specifies  the 
amount  of  his  compensation  he  is  entitled  to  the  amount  thus  specified 
and  no  more.  If  he  directs  that  he  shall  be  allowed  a  compensation, 
but  does  not  specify  the  rate  or  amount,  he  is  entitled  to  such  com- 
pensation as  may  be  reasonable  under  the  circumstances." 

2.  Amended  by  Stats.  1889,  p.  334,  adding  the  exception  at  the  be- 
ginning of  the  section. 

3.  Amended  by  Stats.  1909,  p.  252,  adding  the  final  sentence. 

§  2275,  Involuntary  trustee.  An  involuntary  trustee,  who 
becomes  such  through  his  own  fault,  has  none  of  the  rights 
mentioned  in  this  article. 


§  2282  CIVIL  CODE.  634 

Involuntary  trustee,  defined:  Ante,  §§  2217,  2223,  2224. 
Legislation  §  2275.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1207. 

AETICLE  V. 

Termination   of  the   Trust. 

§  2279.  Trust,  how  extinguished. 

§  2280.  Not  revocable. 

§  2281.  Trustee's  office,   how  vacated. 

§  2282.  Trustee,  how  discharged. 

§  2283.  Eemoval  by  superior  court. 

§  2279.  Trust,  how  extinguished.  A  trust  is  extinguished 
by  the  entire  fulfillment  of  its  object,  or  by  such  object  be- 
coming impossible  or  unlawful. 

Extinguishment  of  trust:  See  ante,  §  871. 

Legislation  §  2279.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1208. 

§  2280.  Not  revocable.  A  trust  cannot  be  revoked  by  the 
trustor  after  its  acceptance,  actual  or  presumed,  by  the  trustee 
and  beneficiaries,  except  by  the  consent  of  all  the  beneficiaries, 
unless  the  declaration  of  trust  reserves  a  power  of  revocation 
to  the  trustor,  and  in  that  case  the  poAver  must  be  strictly  pur- 
sued. 

Legislation  §  2280.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1209. 

§2281.  Trustee's  office,  how  vacated.  The  office  of  a  trus- 
tee is  vacated : 

1.  By  his  death  ;  or, 

2.  By  his  discharge. 

Legislation  §  2281.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
>r.  Y.  Civ.  Code.  §  1210. 

§  2282.  Trustee,  how  discharged.  A  trustee  can  be  dis- 
charged from  his  tru.st  only  as  follows  : 

1.  By  the  extinction  of  the  trust ; 

2.  By  the  completion  of  his  duties  under  the  trust ; 

3.  By  such  means  as  may  be  prescribed  by  the  declaration 
of  trust ; 

4.  By  the  consent  of  the  beneficiary,  if  he  have  capacity  to 
contract ; 

5.  By  the  judgment  of  a  competent  tribunal,  in  a  direct  pro- 
ceeding for  that  purpose,  that  he  is  of  unsound  mind ;  or,* 

6.  By  the  superior  court.  [Amendment  approved  1SS3 : 
Stats.  1883,  p.  3.] 

Legislation  §  2282.     1.    Enacted    March    21,    1872    (based   on    Field's 
Draft,  X.  Y.  Civ.  Code,  §  1211),  then  having,  (1)  in  subd.  4,  "had  capa- 


635  succESSiox  or  appointment  of  new  trustees.       §  2288 

city,"'  instead  of  "have  capacity,"  and   (2)   in  subd.  6,  "district  court" 
instead  of  "superior  court." 

2.  Amended  by  Stats.  1883,  p.  3. 

• 

§  2283.  Removal  by  superior  court.  The  superior  court 
msLy  remove  any  trustee  who  has  violated  or  is  unfit  to  exe- 
cute the  trust,  or  may  accept  the  resignation  of  a  trustee. 
[Amendment  approved  1880;  Code  Amdts.  1880,  p.  8.] 

Legislation  §  2283.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  1212),  and  then  had  the  words  "district  court" 
instead  of  "superior  court." 

2.  Amended  by  Code  Amdts.  1880,  p.  8. 

AETICLE  VI. 
Succession  or  Appointment  of  New  Trustees. 

§  2287.     Appointment  of  trustee  by  court  to  fill  vacancy. 
§  2288.     Survivorship  between  co-trustees. 
§  2289.     Superior  court  as  trustee. 

§  2287.     Appointment  of  trustee  by  court  to  fill  vacancy. 

The  superior  court  must  appoint  a  trustee  whenever  tliere  is  a 
vacancy,  and  the  declaration  of  trust  does  not  provide  a  prac- 
tical method  of  appointment.  In  all  cases  of  appointment  of 
any  trustee  or  trustees  by  any  court,  if  the  cestui  que  trustent, 
or  any  one  of  them  are  of  the  age  of  fourteen  years,  they,  or 
the  one  or  more  of  them  of  the  age  of  fourteen  years,  may  make 
nomination,  to  the  court,  and  unless  such  nominee  or  nominees 
are  incompetent,  upon  one  or  more  of  the  grounds  of  incom- 
petency specified  in  section  13.50  of  the  Code  of  Civil  Procedure 
of  California,  to  discharge  the  duties  of  trustee,  the  court  must 
appoint  such  nominee,  or  nominees,  as  trustee,  or  trustees  as 
the  case  may  be.  [Amendment  approved  1913;  Stats.  1913, 
p.  39.5.] 

Legislation  §  2287.     1.    Enacted    March    21,    1872    (based    on    Field's 

Draft,  X.  y.  Civ.  Code,  §  1213),  and  then  had'the  words  "district  court" 

instead  of  "superior  court." 

2.  Amended  by  Code  Amdts.  1880,  p.  8,  to  read:  "The  superior  court 
may  appoint  a  trustee  whenever  there  is  a  vacancy,  and  the  declara- 
tion of  trust  does  not  provide  a  practicable  method  of  appointment." 

3.  Amended  by  Stats.  1911,  p.  79,  to  read:  "The  superior  court  may 
appoint  a  trustee  whenever  there  is  a  vacancy  and  the  declaration  of 
trust  does  not  provide  a  practicable  method  of  appointment.  If  the 
cestui  que  trust  is  of  the  age  of  fourteen  years,  he  may  nominate  such 
trustee,  and  if  such  nominee  is  found  competent  to  discharge  the  duties 
of  trustee,  he  is  entitled  to  be  appointed  such  trustee  in  preference  to 
any  other  person." 

4.  Amended  by  Stats.  1913,  p.  395. 

§  2288.  Survivorship  between  co-trustees.  On  the  death, 
renunciation,  or  discharge  of  one  of  several  co-trustees  the 
trust  survives  to  the  others. 

TMs  section  consistent  with  §  860,  ante.     See,  also,  ante,  §  2268. 

Survival  of  guardianship:  See  ante,  §  252. 


§  2295  CIVIL  CODE.  636 

Legislation  §  2288,     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1214. 

§  2289.  Superior  court  as  trustee.  When  a  trust  exists 
without  any  appointed  trustee,  or  Avhere  all  the  trustees  re- 
nounce, die,  or  are  discharged,  the  superior  court  of  the 
county  where  the  trust  property,  or  some  portion  thereof,  is 
situated,  must  appoint  another  trustee,  and  direct  the  execu- 
tion of  the  trust.  The  court  may,  in  its  discretion,  appoint 
the  original  number,  or  any  less  number  of  trustees.  [Amend- 
ment approved  1880 ;  Code  Amdts.  1880,  p.  8.] 

Legislation '§  2289.     1.    Enacted    March    21,    1872    (based    on    Field's 
Draft,  K  Y.  Civ.  Code,  §1215;  Stats.  1867-68,  p.  170),  and  then  had 
the  words  "district  court"  instead  of  "superior  court." 
2.  Amended  by  Code  Amdts.  1880,  p.  8. 


TITLE  IX. 
Agency. 

Chapter  I.     Agency    in    General.     Articles  I-VI.     §§  2295-2356. 
II.     Particular    Agencies.     Articles    I-IV.     §§  2362-2389. 

CHAPTER  I. 

Agency  in  General. 

Article  I.  Definition  of  Agency.     §§2295-2300.      - 

II.  Authority  of   Agents.     §§  2304-2326. 

III.  Mutual      Obligations      of      Principals     and      Third      Persons. 

§§  2330-2339. 

IV.  Obligations  of  Agents  to  Third  Persons.     §§  2342-2345. 

V.  Delegation  of  Agency.     §§  2349-2351. 

VI.  Termination  of  Agency.     §§  2355,  2356. 

AETICLE  I. 

Definition  of  Agency. 

§  2295.  Agency,  what. 

§  2296.  Who  may  appoint,  and  who  may  be  an  agent. 

§  2297.  Agents,  general  or  special. 

§  2298.  Agency,  actual  or  ostensible. 

§  2299.  Actual  agency. 

§  2300.  Ostensible  agency. 

§  2295.     Agency,   what.     An   agent  is  one   Avho  represents 
another,  called  the  principal,  in  dealings  with  third  persons. 

Such  representation  is  called  agency. 

Master  and  servant:  See  ante,  §§  2009  et  seq. 
Factors:  See  ante,  §§  2026  et  seq. 
Agents:   See  ante,  §§  2019-2022. 

Legislation  §  2295.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1216. 


637  DEFINITION    OF   AGENCY.      AUTHORITY   OF   AGENTS.       §  2300 

I 

§  2296.     Who  may  appoint,  and  who  may  be  an  agent.    Any 

person  having  capacity  to  contract  may  appoint  an  agent,  and 
any  person  may  be  an  agent. 

Legislation  §  2296.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1217. 

§  2297.  Agents,  g'eneral  or  special.  An  agent  for  a  particu- 
lar act  or  transaction  is  called  a  special  agent.  All  others  are 
general  agents. 

Legislation  §  2297.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1218. 

§  2298.  Agency,  actual  or  ostensible.  An  agency  is  either 
actual  or  ostensible. 

Actual  agent's  authority:  Post,  §§  231.5,  2316,  2318,  2319. 
Ostensible  agent's  authority:   Post,  §§  231.5,  2317-2319,  2334. 
Legislation  §  2298.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N".  Y.  Civ.  Code,  §  1219. 

§  2299.  Actual  agency.  An  agency  is  actual  when  the 
agent  is  really  employed  by  the  principal. 

Legislation  §  2299.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1220. 

§  2300.     Ostensible  agency.     An  agency  is  ostensible  when 
the  principal  intentionally,  or  by  want  of  ordinary  care,  causes 
a  third  person  to  believe  another  to  be  his  agent  who  is  not 
really  employed  by  him. 
Compare  post,  §  2317. 

Legislation  §  2300.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1221. 

ARTICLE  n. 
Authority   of  Agents. 

§  2304.  What  authority  may  be  conferred. 

§  2305.  Agent  may  perform  acts  required  of  principal  by  code. 

§  2306.  Agent  cannot  have  authority  to  defraud  principal. 

§  2307.  Creation  of  agency. 

§  2308.  Consideration  unnecessarv. 

§  2309.  Form  of  authoritv. 

§  2310.  Ratification  of  agent's  act. 

§  2311.  Ratifica^on  of  part  of  a  transaction. 

§  2312.  When  ratification  void. 

§  2313.  Ratification  not  to  work  injury  to  third  persons. 

§  2314.  Rescission  of  ratification. 

§  2315.  Measure  of  agent's  authority. 

§  2316.  Actual   authority,  what. 

§  2317.  Ostensible  authority,  what. 

§  2318.  Agent's  authority  as  to  persons  having  notice  of  restrictions 
upon  it. 

§  2319.  Agent's  necessary  authority. 

§  2320.  Agent's  power  to  disobey  instructions. 

§  2321.  Authority  to  be  construed  by  its'specific,  rather  than  by  its  gen- 
eral terms. 


§  2309  CIVIL  CODE.  638 

§  2322.     Exceptions  to  general  authority. 

§  2323.     What  included  in  authority  to  sell  personal  property. 

§  2324.     What  included  in  authority  to  sell  real  property. 

§  2325.  ■  Authority  of  general  agent  to  receive  price  of  property. 

§  2326.     Authority  of  special  agent  to  receive  price. 

§  2304.  What  authority  may  be  conferred.  An  agent  may 
be  authorized  to  do  any  acts  which  his  principal  might  do,  ex- 
cept those  to  which  the  latter  is  bound  to  give  his  personal 
attention. 

Delegation  of  authority  by  agent:  Post,  §§  2349-2351. 
Legislation  §  2304.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1222. 

§  2305.  Agent  may  perform  acts  required  of  principal  by 
code.  Every  act  which,  according  to  this  code,  may  be  done 
by  or  to  any  person,  may  be  done  by  or  to  the  agent  of  such 
person  for  that  purpose,  unless  a  contrary  intention  clearly 
appears. 

Legislation  §  2305.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1223. 

§  2306.     Agent  cannot  have  authority  to  defraud  principal. 

An  agent  can  never  have  authority,  either  actual  or  ostensible, 
to  do  an  act  which  is,  and  is  known  or  suspected  by  the  person 
with  whom  he  deals,  to  be  a  fraud  upon  the  principal. 

Legislation  §  2306.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1224. 

§  2307.  Creation  of  agency.  An  agency  may  be  created, 
and  an  authority  may  be  conferred,  by  a  precedent  authoriza- 
tion or  a  subsequent  ratification. 

Legislation  §  2307.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1225. 

§  2308.  Consideration  unnecessary.  A  consideration  is  not 
necessary  to  make  an  authority,  whether  precedent  or  subse- 
quent, binding  upon  the  principal. 

Legislation  §  2308.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1226.  , 

§  2309.  Form  of  authority.  An  oral  authorization  is  suffi- 
cient for  any  purpose,  except  that  an  authority  to  enter  into 
a  contract  required  by  law  to  be  in  writing  can  only  be  given 
by  an  instrument  in  writing. 

Statute  of  frauds:  Ante,  §  1624. 

Power  of  attorney  to  execute  mortgage:  See  post,  §  2933. 
Legislation  §  2309.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1227. 


639  AUTHORITY    OF    AGENTS.  §  2316 

§2310.     Ratification  of  agent's  act.     A  ratification  can  be 

.made  only  in  the  manner  that  Avould  have  been  necessary  to 

confer  an  original  authority  for  the  act  ratified,  or  where  an 

oral  authorization  would  suffice,  by  accepting  or  retaining  the 

benefit  of  the  act,  Avith  notice  thereof. 

Ratification  is  not  binding,  and  may  be  rescinded,  if  made  without 
full  knowledge  of  the  facts:  See  post,  §  2314. 

Ratification  of  part:  See  post,  §  2311. 

Legislation  §  2310.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N".  Y.  Civ.  Code,  §  1228. 

§  2311.  Ratification  of  part  of  a  transaction.  Ratification 
of  part  of  an  indivisible  transaction  is  a  ratification  of  the 
whole. 

Legislation  §  2311.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1229. 

§  2312.  When  ratification  void.  A  ratification  is  not  valid 
unless,  at  the  time  of  ratifying  the  act  done,  the  principal  has 
poAver  to  confer  authority  for  such  an  act. 

Legislation  §  2312.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1230. 

§  2313.     Ratification  not  to  work  injury  to  third  persons. 

No  unauthorized  act  can  be  made  valid,  retroactively,  to  the 

prejudice  of  third  persons,  without  their  consent. 

Legislation  §  2313.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  1231. 

§  2314.  Rescission  of  ratification.  A  ratification  may  be 
rescinded  when  made  without  such  consent  as  is  required  in 
a  contract,  or  with  an  imperfect  knowledge  of  the  material 
facts  of  the  transaction  ratified,  but  not  otherwise. 

Legislation  §  2314.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1232. 

§2315.  Measure  of  agent's  authority.  An  agent  has  such 
authority  as  the  principal,  actually  or  ostensibly,  confers  upon 
him. 

Ostensible  agency:  See  post,  §§  2317-2319,  2334;  ante,  §  2300. 
Actual  agent,  defined:  Ante,  §  2299. 

Legislation  §  2315.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1233. 

§  2316.  Actual  authority,  what.  Actual  authority  is  such 
as  a  principal  intentionally  confers  upon  the  agent,  or  inten- 
tionally, or  by  want  of  ordinary  care,  allows  the  agent  to  be- 
lieve himself  to  possess. 

Legislation  §  2316.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1234. 


§  2322  CIVIL  CODE.  640 

§  2317.  Ostensible  authority,  what.  Ostensible  authority  is 
such  as  a  principal,  intentionally  or  by  want  of  ordinary  care, 
causes  or  alloAvs  a  third  person  to  believe  the  agent  to  possess. 

Ostensible  agent,  defined:  Ante,  §  2300. 

Estoppel  from  a  subsequent  ratification:  See  ante,  §§  2307,  2310, 
2312-2314. 

Legislation  §  2317.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1235. 

§  2318.  Agent's  authority  as  to  persons  having  notice  of 
restrictions  upon  it.  Every  agent  has  actually  such  authority 
as  is  defined  by  this  title,  unless  specially  deprived  thereof  by 
his  principal,  and  has  even  then  such  authority  ostensibly, 
except  as  to  persons  who  have  actual  or  constructive  notice 
of  the  restriction  upon  his  authority. 

Legislation  §  2318.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  1236. 

§2319.  Agent's  necessary  authority.  An  agent  has  au- 
thority : 

1.  To  do  everything  necessary  or  proper  and  usual,  in  the 
ordinary  course  of  business,  for  effecting  the  purpose  of  his 
agency ;  and, 

2.  To  make  a  representation  respecting  any  matter  of  fact, 
not  including  the  terms  of  his  authority,  but  upon  which  his 
right  to  use  his  authority  depends,  and  the  truth  of  which  can- 
not be  determined  by  the  use  of  reasonable  diligence  on  the 
part  of  the  perso)i  to  whom  the  representation  is  made. 

Legislation  §  2319.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1237. 

§2320.     Agent's  power  to  disobey  instructions.     An  agent 

has  power  to  disoliey  instructions  in  dealing  with  the  subject 
of  the  agency,  in  cases  where  it  is  clearly  for  the  interest  of 
his  principal  that  he  should  do  so,  and  there  is  not  time  to 
communicate  with  the  principal. 

Legislation  §  2320.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1238. 

§  2321.  Authority  to  be  construed  by  its  specific,  rather 
than  by  its  general  terms.  When  an  authority  is  given  partly 
in  general  and  partly  in  specific  terms,  the  general  authority 
gives  no  higher  powers  than  those  specifically  mentioned. 

Legislation  §  2321.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1239. 

§  2322.  Exceptions  to  general  authority.  An  authority  ex- 
pressed in  general  terms,  however  l)road,  does  not  authorize  an 
agent : 


641  AUTHORITY    OB^    AGENTS.  §  2326 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course  of 
business  to  do  so  ; 

2.  To  define  the  scope  of  his  agency ;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by  article 
tAvo,  chapter  one,  of  the  last  title. 

"Article  two,  chapter  one,  of  the  last  title":  Ante,  §§  2228-2239. 
Defining  scope  of  agency:  See  ante,  §  2319,  subd.  2. 
Obligation  of  trustees:  Ante,  §§  2228-2239. 

Legislation  §  2322.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1240. 

§  2323.  What  included  in  authority  to  sell  personal  prop- 
erty. An  authority  to  sell  personal  property  includes  au- 
thority to  warrant  the  title  of  the  principal,  and  the  quality 
and  quantity  of  the  property. 

Auctioneers,  warranty  by:  See  post,  §  2362,  subd.  3. 
Legislation  §  2323.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1241. 

§  2324.    What  included  in  authority  to  sell  real  property. 

An  authority  to  sell  and  convey  real  property  includes  au- 
thority to  give  the  usual  covenants  of  warranty. 

Legislation  §  2324.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1242. 

§  2325.  Authority  of  general  agent  to  receive  price  of  prop- 
erty; A  general  agent  to  sell,  who  is  intrusted  by  the  princi- 
pal with  the  possession  of  the  thing  sold,  has  authority  to 
receive  the  price. 

Agent  to  collect:  Ante,  §  2021. 

Legislation  §  2325.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1243. 

§  2326.     Authority   of   special   agent   to   receive   price.    A 

special   agent  to   sell   has   authority   to   receive   the   price   on 
delivery  of  the  thing  sold,  but  not  afterwards. 

Legislation  §  2326.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1244. 
Civ.  Code — 4X 


§  2334  '       CIVIL  CODE.  642 

AETICLE  III. 
Mutual   Obligations   of  Principals   and   Third  Persons. 

§  2330.     Principal,  how  affected  by  acts  of  agent  within  the  scope  of  his 

authority. 
§  2331.     Principal,  when  bound  by  incomplete  execution  of  authority. 
§  2332.     Notice  to  agent,  when  notice  to  principal. 
§  2333.     Obligation  of  principal  when  agent  exceeds  his  authority. 
§  2334.     For  acts  done  under  a  merely  ostensible  authority. 
§  2335.     When  exclusive  credit  is  given  to  agent. 
§  2336.     Eights   of  person  who   deals   with  agent  without  knowledge   of 

agency. 
§  2337.     Instrument  intended  to  bind  principal  does  bind  him. 
§  2538.     Principal's  responsibility  for  agent's  negligence  or  omission. 
§2339.     Principal's  responsibility  for  wrongs  willfully  committed  by  the 

agent. 

§  2330.  Principal,  how  affected  by  acts  of  agent  within  the 
scope  of  his  authority.  An  agent  represents  his  principal  for 
all  purposes  within  the  scope  of  his  actual  or  ostensible  au- 
thority, and  all  the  rights  and  liabilities  which  would  accrue 
to  the  agent  from  transactions  within  such  limit,  if  they  had 
been  entered  into  on  his  own  account,  accrue  to  the  principal. 
Legislation  §  2330.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1245. 

§  2331.  Principal,  when  bound  by  incomplete  execution  of 
authority.  A  principal  is  bound  by  an  incomplete  execution 
of  an  authority,  when  it  is  consistent  with  the  Avhole  purpose 
and  scope  thereof,  but  not  otherwise. 

Legislation  §  2331.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1246. 

§  2332.     Notice   to   agent,    when   notice   to   principal.     As 

against  a  principal,  both  principal  and  agent  are  deemed  to 
have  notice  of  whatever  either  has  notice  of,  and  ought,  in 
good  faith  and  the  exercise  of  ordinary  care  and  diligence,  to 
communicate  to  the  other. 

Legislation  §  2332.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,   §  1247. 

§  2333.  Obligation  of  principal  when  agent  exceeds  his 
authority.  When  an  agent  exceeds  his  authority,  his  principal 
is  bound  by  his  authorized  acts  so  far  onlj'  as  they  can  be 
plainly  separated  from  those  Avhich  are  unauthorized. 

Legislation  §  2333.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code.  §  1248. 

§  2334.     For  acts  done  under  a  merely  ostensible  authority. 

A  principal  is  bound  by  acts  of  his  agent,  under  a  merely 
ostensible  authority,  to  those  persons  only  who  have  in  good 
faith,  and  without  Avant  of  ordinary  care,  incurred  a  liability 


643     OBLIGATIONS  BETWEEN  PRINCIPALS  AND  THIRD  PERSONS.    §  2339 

or  parted  with  value,  upon  the  faith  thereof.  [Amendment 
approved  1905;  Stats.  1905,  p.  616.] 

Ostensible  authority:  See  ante,  §§  2317-2319. 

Legislation  §  2331.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1249. 

2.  Amendment  by  Stats.  1901,  p.  415;  unconstitutional.  See  note,  §  4, 
ante. 

3.  Amended  by  Stats.  1905,  p.  616,  substituting  "want  of  ordinary 
care"  for  "ordinary  negligence." 

§  2335.  When  exclusive  credit  is  given  to  agent.  If  ex- 
clusive credit  is  given  to  an  agent  by  the  person  dealing  with 
him,  his  principal  is  exonerated  by  payment  or  other  satis- 
faction made  by  him  to  his  agent  in  good  faith,  before  receiv- 
ing notice  of  the  creditor's  election  to  hold  him  responsible. 

Legislation  §  2335.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1250. 

§  2336.  Rights  of  person  who  deals  with  agent  without 
knowledge  of  agency.  One  who  deals  witli  an  agent  without 
knowing  or  having  reason  to  believe  that  the  agent  acts  as 
such  in  the  transaction,  may  set  off  against  any  claim  of  the 
principal  arising  out  of  the  same,  all  claims  which  he  might 
have  set  off  against  the  agent  before  notice  of  the  agency. 

Legislation  §  2336.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1251. 

§  2337.  Instrument  intended  to  bind  principal  does  bind 
him.  An  instrument  within  the  scope  of  his  authority  by 
which  an  agent  intends  to  bind  his  principal,  does  bind  him  if 
such  intent  is  plainly  inferable  from  the  instrument  itself. 

Legislation  §  2337.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1252. 

§2338.  Principal's  responsibility  for  agent's  negligence  or 
omission.  Unless  required  by  or  under  the  authority  of  law 
to  employ  that  particular  agent,  a  principal  is  responsible  to 
third  persons  for  the  negligence  of  his  agent  in  the  transaction 
of  the  business  of  the  agency,  including  wrongful  acts  com- 
mitted b}'  such  agent  in  and  as  a  part  of  the  transaction  of 
such  business,  and  for  his  willful  omission  to  fulfill  the  obliga- 
tions of  the  principal. 

Responsibility  for  negligence  of  pilot:  See  post,  §  2384. 

Legislation  §  2338.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1253. 

§  2339.  Principal's  responsibility  for  wrongs  willfully  com- 
mitted by  the  agent.  A  principal  is  responsible  for  no  other 
wrongs  committed  by  his  agent  than  those  mentioned  in  the 
last  section,  unless  he  has  authorized  or  ratified  them,  even 


§  2345  CIVIL  CODE.  644 

though  they  are  committed  while  the  agent  is  engaged  in  his 
service. 

Legislation  §  2339.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  12.54. 

AETICLE  IV. 

Obligations  of  Agents  to  Third  Persons. 

§  2342.  Warranty  of  authority. 

§  2343.  Agent's  responsibility  to  third  persons. 

§  2344.  Obligation   of  agent  to  surrender  property  to  third  person. 

§  234.5.  Code  provisions  governing. 

§  2342.     Warranty  of  authority.     One  who  assumes  to  act  as 
an  agent  thereby  warrants,  to  all  who  deal  with  him  in  that 
capacity,  that  he  has  the  authority  which  he  assumes. 
Damages  for  breach  of  warrant  of  authority:  Post,  §  3318. 
Legislation  §  2342.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code.  §  1255. 

§  2343.     Agent 's  responsibility  to  third  persons.     One  who 

assumes  to  act  as  an  agent  is  responsible  to  third  persons  as 
a  principal  for  his  acts  in  the  course  of  his  agency,  in  any  of 
the  following  cases,  and  in  no  others : 

1.  When,  with  his  consent,  credit  is  given  to  him  personally 
in  a  transaction; 

2.  When  he  enters  into  a  written  contract  in  the  name  of  his 
principal,  Avithout  believing,  in  good  faith,  that  he  has  au- 
thority to  do  so ;  or, 

3.  When  his  acts  are  wrongful  in  their  nature. 

Master  of  ship  personally  liable:  Post,  §  2382. 

Legislation  §  2343.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1256. 

§  2344.  Obligation  of  agent  to  surrender  property  to  third 
person.  If  an  agent  receives  anything  for  the  benefit  of  his 
principal,  to  the  possession  of  Avhich  another  person  is  entitled, 
he  must,  on  demand,  surrender  it  to  such  person,  or  so  much  of 
it  as  he  has  under  his  control  at  the  time  of  demand,  on  being 
indemnified  for  any  advance  Avhich  he  has  made  to  his  prin- 
cipal, in  good  faith,  on  account  of  the  same ;  and  is  responsible 
therefor,  if,  after  notice  from  the  owner,  he  delivers  it  to  his 
principal. 

Compare  with  sections  on  deposit,  ante,  §§  1822,  1825,  1826. 
Legislation  §  2344.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1257. 

§  2345.  Code  provisions  governing.  The  provisions  of  this 
article  are  subject  to  the  provisions  of  part  one,  division  first, 
of  this  code. 

Part  one,  division  first:  See  ante,  §§25  et  seq. 


645        DELEGATION  OF  AGENCY.      TERMINATION  OF  AGENCY,        §  2355 

Legislation  §  2345.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1258. 

ARTICLE  V. 

Delegation  of  Agency. 

§  2349.     Agent's  delegation  of  his  powers. 
§  2350.     Agent's  unauthorized  employment  of  subagent. 
§  2351.     Subagent  rightfully  appointed,  represents  principal. 

§  2349.  Agent's  delegation  of  his  powers.  An  agent,  unless 
specially  forbidden  by  his  principal  to  do  so,  can  delegate  his 
powers  to  another  person  in  any  of  the  following  cases,  and  in 
no.  others : 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  sub- 
agent  can  lawfully  perform ; 

3.  W^hen  it  is  the  usage  of  the  place  to  delegate  such  powers; 
or, 

4.  When  such  delegation  is  specially  authorized  by  the  prin- 
cipal. 

Legislation  §  2349.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1259. 

§2350.     Agent's  unauthorized  employment  of  subagent.     If 

an  agent  employs  a  subagent  without  authority,  the  former 
is  a  principal  and  the  latter  his  agent,  and  the  principal  of  the 
former  has  no  connection  with  the  latter. 
Responsibility  of  subagent:  See  ante,  §  2022. 

Legislation  §  2350.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1260. 

§  2351.     Subagent  rightfully  appointed,  represents  principal. 

A  subagent,  lawfully  appointed,  represents  the  principal 
in  like  manner  with  the  original  agent;  and  the  original  agent 
is  not  responsible  to  third  persons  for  the  acts  of  the  sub- 
agent. 

Legislation  §  2351.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1261. 

ARTICLE  VI. 

Termination  of  Agency. 

•  §  2355,     Termination  of  agency. 

§  2356.     Same. 

§  2355.  Termination  of  agency.  An  agency  is  terminated, 
as  to  every  person  having  notice  thereof,  by : 

1.  The  expiration  of  its  term  ; 

2.  The  extinction  of  its  subject; 

3.  The  death  of  the  agent ; 

4.  His  renunciation  of  the  agency ;  or, 

5.  The  incapacity  of  the  agency  [agent]  to  act  as  such. 


§  2363  CIVIL  CODE.  646 

Legislation  §  2355.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1262. 

j5  235G.  Same.  I'nlcss  tlie  power  of  an  agent  is  coupled 
with  an  interest  in  the  subject  of  the  agency,  it  is  terminated, 
as  to  every  person  having  notice  thereof,  by : 

1.  Its  revocation  b}-  the  principal ; 

2.  His  death ;  or, 

3.  His  incapacity  to  contract. 

Legislation  §  2356.     Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1263. 

CHAPTER  II. 

Particular  Agencies. 

Article  I.  Auctioneers.     §§2362,2363. 

n.  Factors.     §§  2367-2369. 

III.  SMp-masters   and  Pilots.     §§  2373-2385. 

rV.  Ships'  Managers.     §§2388,2389. 

AETICLE  I. 

Auctioneers. 

§  2362.     Auctioneer's  authority  from  the  seller. 
§  2363.     Auctioneer's  authority  from  the  bidder. 

§  2362.  Auctioneer 's  authority  from  the  seller.  An  auc- 
tioneer, in  the  absence  of  special  authorization  or  usage  to  the 
contrary,  has  authority  from  the  seller,  only  as  follows : 

1.  To  sell  by  public  auction  to  the  highest  bidder ; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usually 
sold  on  credit  at  auction ; 

3.  To  warrant,  in  like  manner  ^vith  other  agents  to  sell,  ac- 
cording to  section  two  thousand  three  hundred  and  twenty- 
three  ; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale ; 

5.  To  deliver  the  thing  sold,  upon  payment  of  the  price ; 

6.  To  collect  the  price ;  and, 

7.  To  do  whatever  else  is  necessary,  or  proper  and  usual,  in 
the  ordinary  course  of  business,  for  effecting  these  purposes. 

Authority  of  auctioneer:  See  Pol.  Code,  §§  3284  et  seq. 
Legislation  §  2362.     Enacted  March  21,  1872;  based  on  Field's  f)raft, 
N.  Y.  Civ.  Code,  §  1264. 

§2363.  Auctioneer's  authority  from  the  bidder.  An  auc- 
tioneer has  authority  from  a  bidder  at  the  auction,  as  well  as 
from  the  seller,  to  bind  both  by  a  memorandum  of  the  con- 
tract, as  prescribed  in  the  title  on  sale. 

Concerning  auctioneers:  Pol.  Code,  §§  3284-3324. 
Entries  by  auctioneer:  See  ante,  §1798;  and  see  generally  the  chap- 
ter on  "Sale  by  Auction,"  ante,  §§  1792-1798. 


647  FACTORS.      SHIP-MASTERS  AND  PILOTS.  §  2369 

Legislation  §  2363.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1265. 

AETICLE  II. 

Factors. 

§  2367.     Factor,  what. 

§  2368.     Actual   authority   of  factor. 

§  2369.     Ostensible   authority. 

§  2367.  Factor,  what.  A  factor  is  an  agent,  as  defined  by 
section  two  thousand  and  twenty -six. 

Legislation  §  2367,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1266. 

§  2368.  Actual  authority  of  factor.  In  addition  to  the  au- 
thority of  agents  in  general,  a  factor  has  actual  authority  from 
his  principal,  unless  specially  restricted : 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale,  ex- 
cept such  things  as  it  is  contrary  to  usage  to  sell  on  credit ; 
but  not  to  pledge,  mortgage,  or  barter  the  same ;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but 
not  to  any  jDerson  in  an  independent  employment. 

Sale  on  credit  by  factor:  See  ante,  §  2028. 

Legislation  §  2368.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1267. 

§  2369.  Ostensible  authority.  A  factor  has  ostensible  au- 
thority to  deal  with  the  property  of  his  principal  as  his  own, 
in  transactions  with  persons  not  having  notice  of  the  actual 
ownership. 

Legislation  §  2369.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1268. 

AETICLE  III. 
■    Ship-masters   and   Pilots. 

§  2373.  Authority  of  ship-master  on  behalf  of  ship-owner. 

§  2374.  Authority  to  borrow. 

§  2375.  Authority  on  behalf  of  owners  of  cargo. 

§  2376.  Power  to  make  contracts. 

§  2377.  Power  to  hypothecate. 

§  2378.  Master's  power  to  sell  ship. 

§  2379.  Master's  power  to  sell  cargo. 

§  2380.  Authority  to  ransom  ship. 

§  2381.  Abandonment  terminates  master's  power. 

§  2382.  Personal  liability  for  contracts  concerning  the  ship. 

§  2383.  Liability  for  acts  of  persons  employed  upon  the  ship. 

§  2384.  Responsibility  for  negligence  of  pilot. 

§  2385.  Obligations  of  ship-owner  to  owner  of  cargo  sold. 

Note.     This  article  is  chiefly  confined  to  defining  the  authority  of 
shipmasters.     Their  duties  will  be  found  ante,  §§  2034-2044. 


§  2377  CIVIL  CODE.  648 

§  2373.     Authority  of  ship-master  on  behalf  of  ship-owner. 

The  master  of  a  ship  is  a  general  agent  for  its  owner  in  all 

matters  concerning  the  same. 

Legislation  §  2373.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §1269. 

§  2374.  Authority  to  borrow.  The  master  of  a  ship  has  au- 
thority to  borrow  money  on  the  credit  of  its  owner,  if  it  is 
necessary  to  enable  him  to  complete  the  voyage,  and  if  neither 
the  owner  nor  his  proper  agent  for  such  matters  can  be  con- 
sulted without  injurious  delay. 

Legislation  §  2374.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1270. 

§  2375.     Authority    on    behalf    of    owners    of    cargo.     The 

master  of  a  ship,  during  a  voyage,  is  a  general  agent  for  each 
of  the  owners  of  the  cargo,  and  has  authority  to  do  whatever 
they  might  do  for  the  preservation  of  their  respective  inter- 
ests, but  he  cannot  sell  or  hypothecate  the  cargo,  except  in 
the  cases  mentioned  in  this  article.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  251.] 

Legislation  §  2375.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1271),  and  then  read:  "The  master  of  a  ship, 
during  a  voyage,  is  a  general  agent  for  each  of  the  owners  of  the  cargo, 
and  has  authority  to  do  whatever  they  might  do  for  the  preservation 
of  their  respective  interests,  except  to  sell  or  hypothecate  the  same." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  251. 

§  2376.  Power  to  make  contracts.  The  master  of  a  ship 
may  procure  all  its  necessary  repairs  and  supplies,  may  engage 
cargo  and  passengers  for  carriage,  and,  in  a  foreign  port, 
may  enter  into  a  charter-party ;  and  his  contracts  for  these 
purposes  bind  the  owner  to  the  full  amount  of  the  value  of  the 
ship  and  freightage. 

Legislation  §  2376.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1272. 

§  2377.  Power  to  hypothecate.  The  master  of  a  ship  may 
hypothecate  the  ship,  freightage,  and  cargo,  and  sell  part  of 
the  cargo,  in  the  cases  prescribed  by  the  chapters  on  bottomry 
and  respondentia,  and  in  no  others,  except  that  the  master  may 
also  sell  the  cargo,  or  any  part  of  it,  short  of  the  port  of  desti- 
nation, if  found  to  be  of  such  perishable  nature,  or  in  sucli  dam- 
aged condition  that  if  left  on  board  or  reshipped  it  Avould  be 
entirely  lost,  or  would  seriously  endanger  the  interests  of  its 
owners.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  252.] 

Bottomry:  See  post,  §§  3017  et  seq. 

Legislation  §  2377.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  X.  Y.  Civ.  Code,  §  1273),  and  then  read:  "The  master  of  a  ship 


649  SHIP-MASTERS  AND  PILOTS.  §  2383 

may  hypothecate  the  ship,  freightage,  and  cargo  in  the  cases  prescribed 
by  the  chapters  on  bottomry  and  respondentia,  and  in  no  others." 
2.   Amended  by  Code  Ani'dts.  1873-74,  p.  252. 

§  2378.  Master's  power  to  sell  ship.  When  a  ship,  whether 
foreign  or  domestif,  is  soriously  injured,  or  the  voyage  is 
otherwise  broken  up,  beyond  the  possibility  of  pursuing  it, 
the  master,  in  ease  of  necessity,  may  sell  the  ship  without  in- 
structions from  the  owners,  unless  by  the  earliest  use  of  ordi- 
nary means  of  communication  he  can  inform  the  owners,  and 
await  their  instructions. 

Legislation  §  2378.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1274. 

§  2379.  Master's  power  to  sell  carg-o.  The  master  of  a  ship 
may  sell  the  cargo,  if  the  voyage  is  broken  up  beyond  the  pos- 
sibility of  pursuing  it,  and  no  other  ship  can  be  obtained  to 
carry  it  to  its  destination,  and  the  sale  is  otherwise  absolutely 
necessary. 

Master's  authority  when  voyage  broken  up:  Compare  post,  §  2707. 
Legislation  §  2379.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1275. 

§2380.  Authority  to  ransom  ship.  The  master  of  a  ship, 
in  case  of  its  captui-e,  may  engage  to  pay  a  ransom  for  it,  in 
money  or  in  part  of  the  cargo,  and  his  engagement  will  bind 
the  ship,  freightage,  and  cargo. 

Legislation  §  2380.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code.  §  127C. 

§2381.  Abandonment  terminates  master's  power.  The 
power  of  the  master  of  a  ship  to  bind  its  owner,  or  the  owners 
of  the  cargo,  ceases  upon  the  abandonment  of  the  ship  and 
freightage  to  insurers. 

Legislation  §  2381.  Enacted  March  21.  1872;  based  on  Fiehl's  Draft, 
X.  Y.  Civ.  Code,  §  1277. 

§  2382.     Personal  liability  for  contracts  concerning'  the  ship. 

Unless  otherwise  expressly  agreed,  or  unless  the  contracting 
parties  give  exclusive  credit  to  the  owner,  the  master  of  a  ship 
is  personally  liable  upon  his  contracts  relative  thereto,  even 
when  the  owner  is  also  liable. 

Personal  liability  of  agent:  See  ante,  §  2:^4.3. 

Captain  importing  convict,  guilty  of  a  misdemeanor:  See  Pen.  Code, 
§  173. 

Legislation  §  2382.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1278. 

§  2383.     Liability  for  acts  of  persons  employed  upon  the  ship. 

The  master  of  a  ship  is  liable  to  third  persons  for  the  acts  or 


§  2389  CIVIL  CODE.  650 

negligence  of  persons  employed  in  its  navigation,  whether  ap- 
pointed by  him  or  not,  to  the  same  extent  as  the  owner  of  the 
ship. 

Ship-master's  liability  for  negligence:   See  ante,  §  2043;  post,  §  2384. 

Legislation  §  2383.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1279. 

§  2384.  Responsibility  for  negligence  of  pilot.  The  owner 
or  master  of  a  ship  is  not  responsible  for  the  negligence  of  a 
pilot  whom  he  is  bound  by  law  to  employ ;  but  if  he  is  allowed 
an  option  between  pilots,  some  of  whom  are  competent,  or  is 
required  only  to  pay  compensation  to  a  pilot,  whether  he  em- 
ploys him  or  not,  he  is  so  responsible  to  third  persons. 

Liability  of  principal  for  acts  of  agent:  See  ante,  §  2338. 
Ship-master's  liability  for  negligence;  See  ante,  §§  2043,  2383. 
Legislation  §  2384.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1280. 

§  2385.     Obligations  of  ship-ov^^ner  to  owner  of  carg-o  sold. 

The  owner  of  a  ship  is  bound  to  pay  to  the  owner  of  her  cargo 
the  market  value  at  the  time  of  arrival  of  the  ship  at  the  port 
of  her  destination,  of  that  portion  of  her  cargo  which  has  been 
sold  to  enable  the  master  to  pay  the  necessary  repairs  and 
supplies  of  the  ship. 

Legislation  §  2385.     Added  by  Code  Amdts.  1873-74,  p.  252. 

ARTICLE  IV. 

Ships'   Managers. 

§  2388.     What  powers  manager  has. 
§  2389.     What  powers  he  has  not. 

§  2388.     What  powers  manager  has.     A  ship 's  manager  has 

poAver  to  make  contracts  requisite  for  the  performance  of  his 

duties  as  such ;  to  enter  into  charter-parties,  or  make  contracts 

for  carriage;  and  to  settle  for  freightage  and  adjust  averages. 

Ships'  managers:  See  ante,  §§  2070-2072. 

Legislation  §  2388.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1281. 

§  2389.  What  powers  he  has  not.  Without  special  author- 
ity a  ship's  manager  cannot  borrow  money  or  give  up  the  lien 
for  freightage,  or  purchase  a  cargo,  or  bind  the  owners  of  the 
ship  to  an  insurance. 

Legislation  §  2389.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1282. 


651  WHAT  CONSTITUTES  PARTNERSHIP.      FORMATION  OF.       §  2397 

TITLE  X. 
Partnership. 

Chapter  I.  Partnership    in    General.     Articles    I-IV.     §§  2395-2418. 

li.  General   Partnership.     Articles   I-VII.     §§  2424-2472. 

III.  Special  Partnership.     Articles  I-FV.     §§  2477-2510. 

IV.  Mining  Partnership.     §§  2511-2520. 

CHAPTER  I. 

Partnership  in  General. 

Article  I.  What    Constitutes    a    Partnership.     §§2395-2397. 

II.  Partnership  Property.     §§2401-2406. 

III.  Mutual  Obligation   of  Partners.     §§2410-2413. 

IV.  Kenunciation  of  Partnership.     §§  2417,  2418. 

AETICLE  I. 

What  Constitutes,  a  Partnership. 

§  2395.     Partnership,  what. 

§  2396.     Ship-owners. 

§  2397.     Formation  of  partnership. 

§  2395.      Partnership,  what.      Partnership  is  the  association 
of  two  or  more  persons,  for  the  purpose  of  carrying  on  busi- 
ness together,  and  dividing  its  profits  between  them. 
Dividing  profits  implies  division  of  losses:  Post,  §  2404. 
Legislation  §  2395.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1283. 

§  2396.  Ship-owners.  Part-OAvners  of  a  ship  do  not,  by 
simply  using  it  in  a  joint  enterprise,  become  partners  as  to  the 
ship. 

Legislation  §  2396.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

K  Y.  Civ.  Code,  §  1284. 

§  2397.     Formation  of  partnership.      A  partnership  can  be 
formed  only  by  the  consent  of  all  the  parties  thereto,  and  there- 
fore no  new  partner  can  be  admitted  into  a  partnership  with- 
out the  consent  of  every  existing  member  thereof. 
Sale  of  interest,  effect  of:  See  post,  §  2516. 

Legislation  §  2397.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1285. 


§  2405  CIVIL  CODE.  652 

ARTICLE  II. 
Partnership   Property. 

§  2401.  Partnership  property,  what. 

§  2402.  Partner's  interest  in  partnership  property. 

§  2403.  Partner's  share  in  profits  and  losses. 

§  2404.  When  division  of  losses  implied. 

§  2405.  Partner  may  require  application  of  partnership   property  to  pay- 
ment of  debts. 

§  2406.  What  property  is  partnership  property  by  presumption. 

§  2401.  Partnership  property,  what.  The  property  of  a 
partnership  consists  of  all  that  is  contributed  to  the  common 
stock  at  the  formation  of  the  partnership,  and  all  that  is  sub- 
sequently acquired  thereby. 

Legislation  §  2401.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1286. 

§  2402.  Partner's  interest  in  partnership  property.  The  in- 
terest of  each  member  of  a  partnership  extends  to  every  portion 
of  its  property. 

Legislation  §  2402.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1287. 

§2403.    Partner's    share    in    profits    and    losses.     In    the 

absence  of  any  agreement  on  the  subject  the  shares  of  partners 
in  the  profit  or  loss  of  the  business  are  equal,  and  the  share  of 
each  in  the  partnership  property  is  the  value  of  his  original 
contribution,  increased  or  diminished  by  his  share  of  profit  or 
loss. 

Mining  partnerships.    Each  member  shares  in  the   profit   and  loss 
proportionately  to  the  interest  he  holds:  Post,  §  2513. 

Legislation  §  2403.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1288. 

§  2404.  When  division  of  losses  implied.  An  agreement  to 
divide  the  profits  of  a  business  implies  an  agreement  for  a  cor- 
responding division  of  its  losses,  unless  it  is  otherwise  ex- 
pressly stipulated. 

Legislation  §  2404.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1289. 

§  2405.  Partner  may  require  application  of  partnership 
property  to  payment  of  debts.  Each  member  of  a  partnership 
may  require  its  property  to  be  applied  to  the  discharge  of  its 
debts,  and  has  a  lien  upon  the  shares  of  the  other  partners  for 
this  purpose,  and  for  the  payment  of  the  general  balance  if 
any  due  to  him. 

Legislation  §  2405.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1290. 


653  MUTUAL  OBLIGATIONS  OF  PARTNERS.  §  2413 

§  2406.  What  property  is  partnership  property  by  presump- 
tion. Property,  whether  real  or  personal,  acquired  with  part- 
nership funds,  is  pi*esunied  to  be  partnership  property. 

Legislation  §  2406.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1291. 

2.  Amendment  by  Stats.  1901,  p.  415;  unconstitutional.  See  note, 
§  4,  ante. 

ARTICLE  III. 

Mutual  Obligation  of  Partners. 

§  2410.  Partners  trustees  for  each  other. 

§  2411.  Good  faith  to  be  observed  between  them. 

§  2412.  Mutual  liability  of  partners  to  account. 

§  2413.  No  compensation  for  services  to  firm. 

§  2410.     Partners  trustees  for  each  other.     The  relations  of 

partners  are  confidential.     They  are  trustees  for  each  other 

within  the  meaning  of  chapter  one  of  the  title  on  trusts,  and 

their  obligations  as  such  trustees  are  defined  by  that  chapter. 

"Chapter  one  of  the  title  on  trusts":  Ante,  §§.2215-2244. 

Legislation  §  2410.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1292. 

§  2411.     Good  faith  to  be  observed  between  them.     In  all 

proceedings  connected  with  the  formation,  conduct,  dissolu- 
tion, and  liquidation  of  a  partnership,  every  partner  is  bound 
to  act  in  the  highest  good  faith  tow^ard  his  copartners.  He  may 
not  obtain  any  advantage  over  them  in  the  partnership  affairs 
by  the  slightest  misrepresentation,  concealment,  threat,  or 
adverse  pressure  of  any  kind. 

In  what  business  partner  may  not  engage:  See  post,  §§  2436  et  seq. 

Legislation  §  2411.  Enacted  March  21,  1872;  bt^sed  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1293. 

§  2412.  Mutual  liability  of  partners  to  account.  Each  mem- 
ber of  a  partnership  must  account  to  it  for  everything  that  he 
receives  on  account  thereof,  and  is  entitled  to  reimbursement 
therefrom  for  everything  that  he  properly  expends  for  the 
benefit  thereof,  and  to  be  indemnified  thereby  for  all  losses  and 
risks  which  he  necessarily  incurs  on  its  behalf. 
Partner's  acts  bind  firm:  Post,  §  2429. 

Legislation  §  2412.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1294. 

§  2413.  No  compensation  for  services  to  firm.  A  partner  is 
not  entitled  to  any  compensation  for  services  rendered  by  him 
to  the  partnership. 

Legislation  §  2413.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1295. 


§  2424  CIVIL  CODE.  654 

AETICLE  IV. 

Eenunciation  of   Partnership. 

§  2417.     Eenunciation  of  future  profits  exonerates  from  liability. 
§  2418.     Effect  of  renunciation. 

§  2417.  Renunciation  of  future  profits  exonerates  from  lia- 
bility. A  partner  may  exonerate  himself  from  all  future 
liability  to  a  third  person,  on  account  of  the  partnership,  by 
renouncing,  in  good  faith,  all  participation  in  its  future  profits, 
and  giving  notice  to  such  third  person,  and  to  his  own  copart- 
ners, that  he  has  made  such  renunciation,  and  that,  so  far  as 
may  be  in  his  power,  he  dissolves  the  partnership  and  does 
not  intend  to  be  liable  on  account  thereof  for  the  future. 

Dissolution  of  partnership:  See  post,  §§  2449  et  seq. 

Legislation  §  2417..  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1296. 

§  2418.  Effect  of  renunciation.  After  a  partner  has  given 
notice  of  his  renunciation  of  the  partnership,  he  cannot  claim 
any  of  its  subsequent  profits,  and  his  copartners  may  proceed 
to  dissolve  the  partnership. 

Legislation  §  2418.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1297. 

CHAPTER  II. 

General  Partnership. 

Article  I.  What  is  a  General  Partnership.     §  2424. 

II.  Powers  and  Authoritv  of  Partners.     §§  2428-2431. 

III.  Mutual  Obligations  of  Partners.     §§  2435-2438. 

IV.  Liability  of  Partners.     §§  2442-2445. 

V.  Termination  of  Partnership.     §§  2449-2454. 

VI.  Liquidation.     §§  2458-2462. 

VII.  Of  the  Use  of  Fictitious  Names.     §§  2466-2472. 

ARTICLE  I. 

What  is    a    General   Partnership. 

§  2424.     General  partnership,  what. 

§  2424.  General  partnership,  v/hat.  Every  partnership  that 
is  not  formed  in  accordance  with  the  law  concerning  special 
or  mining  partnerships,  and  every  special  partnership,  so  far 
only  as  the  general  partners  are  concerned,  is  a  general  part- 
nership. 

Special  partnerships:  See  post,  §§  2477-2510. 
Mining  partnerships:  See  post,  §§  2511-2520. 

Legislation  §  2424.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1298. 


655  POWERS    AND    AUTHORITY    OF    PARTNERS.  §  2431 

AETICLE  II. 

Powers  and  Authority  of  Partners. 

§  2428.  Power  of  majority  of  partners. 

§  2429.  Authority  of  individual  partner. 

§  2430.  What  authority  partner  has  not. 

§  2431.  Partner's  acts  in  bad  faith,  when  ineffectual. 

§  2428.  Power  of  majority  of  partners.  Unless  otherwise 
expressly  stipulated,  the  decision  of  the  majority  of  the  mem- 
bers of  a  general  partnership  binds  it  in  the  conduct  of  its 
business. 

Mining  partnerships:  Post,  §  2520, 

Legislation  §  2428.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1299. 

§  2429.  Authority  of  individual  partner.  Every  general 
partner  is  agent  for  the  partnership  in  the  transaction  of  its 
business,  and  has  authority  to  do  whatever  is  necessary  to 
carry  on  such  business  in  the  ordinary  manner,  and  for  this 
purpose  may  bind  his  copartners  by  an  agreement  in  writing. 
Common  liability  for  losses:  See  §  2412. 

Legislation  §  2429.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1300. 

§  2430.  What  authority  partner  has  not.  A  partner,  as 
such,  has  not  authority  to  do  any  of  the  following  acts,  unless 
his  copartners  have  Avholly  abandoned  the  business  to  him,  or 
are  incapable  of  acting  : 

1.  To  make  an  assignment  of  the  partnership  property  or 
any  portion  thereof  to  a  creditor,  or  to  a  third  person  in  trust 
for  the  benefit  of  a  creditor  or  of  all  creditors ; 

2.  To  dispose  of  the  good-will  of  the  business ; 

3.  To  dispose  of  the  whole  of  the  partnership  property  at 
once,  unless  it  consists  entirely  of  merchandise  ; 

4.  To  do  any  act  which  Avould  make  it  impossible  to  carry 
on  the  ordinary  business  of  the  partnership ; 

5.  To  confess  a  judgment ; 

6.  To  submit  a  partnership  claim  to  arbitration; 

7.  To  do  any  other  act  not  within  the  scope  of  the  preceding 
section. 

Legislation  §  2430.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1301. 

§2431.     Partner's  acts  in  bad  faith,  when  ineffectual.     A 

partner  is  not  bound  by  any  act  of  a  copartner,  in  bad  faith 
toward  him,  though  Avithin  the  scope  of  the  partner's  powers, 
except  in  favor  of  persons  who  have  in  good  faith  parted  with 
value  in  reliance  upon  such  act. 

Good  faith,  duty  to  observe:  See  ante,  §  2411. 


§  2442  CIVIL  CODE.  G56 

Legislation  §  2431.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1302. 

AKTICLE  III. 

Mutual  Obligations  of  Partners. 

§  2435.  Profits  of  individual  partner. 

§  2436.  In  what  business  partner  may  not  engage. 

§  2437.  In  what  he  may  engage. 

§  3438.  Must  account  to  firm  for  profits. 

§  2435.  Profits  of  individual  partner.  All  profits  made  by 
a  general  partner,  in  the  course  of  any  business  usually  carried 
on  by  the  partnership,  belong  to  the  firm. 

Legislation  §  2435.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1303. 

§  2436.  In  what  business  partner  may  not  engage.  A  gen- 
eral partner,  Avho  agrees  to  give  his  personal  attention  to  the 
business  of  the  partnership,  may  not  engage  in  any  business 
which  gives  him  an  interest  adverse  to  that  of  the  partnership, 
or  which  prevents  him  from  giving  to  such  business  all  the 
attention  which  would  ])e  advantageous  to  it. 
Accounting  by  partner:  See  post,  §  2438. 

Legislation  §  2436.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1304. 

§  2437.  In  what  he  may  engage.  A  partner  may  engage  in 
any  separate  business,  except  as  otherwise  provided  by  the 
last  tAvo  sections. 

Legislation  §  2437.     Enacted  March  21.  1872;  based  on  FieWs  Draft, 

N.  Y.  Civ.  Code,  §  1305. 

§  2438.  Must  account  to  firm  for-profits.  A  general  partne'r 
transacting  business  contrary  to  the  provisions  of  this  article 
may  be  required  by  any  copartner  to  account  to  the  partner- 
ship for  the  profits  of  such  business. 

Legislation  §  2438.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1306. 

ARTICLE  IV. 

Liability  of  Partners. 

§  2442.  Liability  of  partners  to  third  persons. 

§  2443.  Liability  for  each  other's  acts  as  agents. 

§  2444.  Liability  of  one  held  out  as  partner. 

§  2445.  No  one  liable  as  partner  unless  held  out  as  such. 

§  2442.  Liability  of  partners  to  third  persons.  Every  gen- 
eral partner  is  liable  to  third  persons  for  all  the  obligations  of 
the  partnership,  jointly  with  his  copartners. 

Legislation  §  2442.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1307. 


657  TERMINATION  OP  PARTNERSHIP.  §  2450 

§2443.  Liability  for  each  other 's  acts  as  agents.  The  liabil- 
ity of  general  partners  for  each  other's  acts  is  defined  by  the 
title  on  agency. 

Authority  of  individual  partner:  See  ante,  §§  2429,  2430. 
"Title  on  agency":  Ante,  §§  2295-2389. 

Legislation  §  2443.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1308. 

§  2444.  Liability  of  one  held  out  as  partner.  Any  one  per- 
mitting himself  to  be  represented  as  a  partner,  general  or 
special,  is  liable,  as  such,  to  third  persons  to  whom  such  rep- 
resentation is  communicated,  and  Avho,  on  the  faith  thereof, 
give  credit  to  the  partnership. 

Legislation  §  2444.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1309. 

§  2445.     No  one  liable  as  partner  unless  held  out  as  such. 

No  one  is  liable  as  a  partner  who  is  not  such  in  fact,  except  as 

provided  in  the  last  section. 

Legislation  §  2445.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1310. 

ARTICLE  V. 

Termination  of  Partnership. 

§  2449.  Duration  of  partnership. 

§  2450.  Total  dissolution  of  partnership. 

§  2451.  Partial  dissolution. 

§  2452.  Partner  entitled  to  dissolution. 

§  2453.  Notice  of  termination. 

§  2454.  Notice  by  change  of  name. 

§  2449.     Duration  of  partnership.     If  no  term  is  prescribed 

by  agreement  for  its  duration,  a  general  partnership  continues 

until  dissolved  by  a  partner  or  by  operation  of  law. 

Dissolution  of  special  partnership:  See  post,  §  2509. 

Legislation  §  2449.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1311. 

§  2450.  Total  dissolution  of  partnership.  A  general  part- 
nership is  dissolved  as  to  all  the  partners : 

1.  By  lapse  of  the  time  prescribed  by  agreement  for  its  dura- 
tion; 

2.  By  the  expressed  Avill  of  any  partner,  if  there  is  no  such 
agreement ; 

3.  By  the  death  of  a  partner ; 

4.  By  the  transfer  to  a  person,  not  a  partner,  of  the  interest 
of  any  partner  in  the  partnership  property ; 

5.  By  war,  or  the  prohibition  of  commercial  intercourse  be- 
tween the  country  in  which  one  partner  resides  and  that  in 
which  another  resides;  or, 

6.  By  a  judgment  of  dissolution. 

Oiv.  Code — 42 


Ik/ 


§  2454  CIVIL  CODE.  658 

Partner's  power  after  dissolution  of  firm:  See  post,  §§  2458  et  seq. 

Legislation  §  2450.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1312. 

2.  Amendment  by  Stats.  1901,  p.  415;  unconstitutional.  See  note,  §  4, 
ante. 

§  2451.  Partial  dissolution.  A  general  partnership  may  be 
dissolved,  as  to  himself  only,  by  the  expressed  Avill  of  any  part- 
ner, notwithstanding  his  agreement  for  its  continuance,  sub- 
ject however  to  liability  to  his  copartners  for  any  damage 
caused  to  them  thereby,  unless  the  circumstances  are  such  as 
entitle  him  to  a  judgment  of  dissolution. 

Legislation  §  2451.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1313. 

§  2452.  Partner  entitled  to  dissolution.  A  general  partner 
is  entitled  to  a  judgment  of  dissolution : 

1.  Wlien  he,  or  another  partner,  becomes  legally  incapable 
of  contracting; 

2.  When  another  partner  fails  to  perform  his  duties  under 
the  agreement  of  partnership,  or  is  guilty  of  serious  mis- 
conduct; or, 

3.  Y/hen  the  business  of  the  partnership  can  be  carried  on 
only  at  a  permanent  loss. 

Legislation  §  2452.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1314. 

§  2453.  Notice  of  termination.  The  liability  of  a  general 
partner  for  the  acts  of  his  copartners  continues,  even  after  a 
dissolution  of  the  copartnership,  in  favor  of  persons  who  have 
had  dealings  with  and  given  credit  to  the  partnership  during 
its  existence,  until  they  have  had  personal  notice  of  the  dis- 
solution; and  in  favor  of  other  persons  until  such  dissolution 
has  been  advertised  in  a  newspaper  published  in  every  county 
where  the  partnership,  at  the  time  of  its  dissolution,  had  a 
place  of  business,  if  a  newspaper  is  there  published,  to  the 
extent  in  either  case  to  which  such  persons  part  with  value  in 
good  faith,  and  in  the  belief  that  such  partner  is  still  a  mem- 
ber of  the  firm. 

Compare  §  2509,  post. 

Legislation  §  2453.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1315. 

§  2454.  Notice  by  change  of  name.  A  change  of  the  part- 
nership name,  which  plainly  indicates  the  withdraAval  of  a 
partner,  is  sufficient  notice  of  the  fact  of  such  withdrawal  to 
all  persons  to  Avhom  it  is  communicated ;  but  a  change  in  the 
name,  which  does  not  contain  such  an  indication,  is  not  notice 
of  the  withdrawal  of  any  partner. 


659  LIQUIDATION  OP  PARTNERSHIP.  §  2462 

Legislation  §  2454.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1316. 

ARTICLE  VI. 

Iiiquidation. 

§  2458.  Powers   of   partners   after   dissolution. 

§  2459.  Who  may  act  in  liquidation. 

§  2460.  Who  may  not  act  in  liquidation. 

§  2461.  Powers  of  partners  in  liquidation. 

§  2462.  What  partner  may  do  in  liquidation. 

§  2458.  Powers  of  partners  after  dissolution.  After  the 
dissolution  of  a  partnership,  the  powers  and  authority  of  the 
partners  are  such  only  as  are  prescribed  by  this  article. 

Death  of  partner,  rights  and  duties  of  survivor:  See  Code  Civ.  Proc, 
§  1585. 

Interest  of  estate  in  partnership,  sale  of:  See  Code  Civ.  Proc,  §  1524. 

Legislation  §  2458.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1317. 

§  2459.  Who  may  act  in  liquidation.  Any  member  of  a 
general  partnership  may  act  in  liquidation  of  its  affairs,  except 
as  provided  by  the  next  section. 

Legislation  §  2459.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1318. 

§  2460.  Who  may  not  act  in  liquidation.  If  the  liquidation 
of  a  partnership  is  committed,  by  consent  of  all  the  partners,  to 
one  or  more  of  them,  the  others  have  no  right  to  act  therein; 
but  their  acts  are  valid  in  favor  of  persons  parting  with  value, 
in  good  faith,  upon  credit  thereof. 

Legislation  §  2460.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1319. 

§  2461.  Powers  of  partners  in  liquidation.  A  partner  au- 
thorized to  act  in  liquidation  may  collect,  compromise,  or  re- 
lease any  debts  due  to  the  partnership,  pay  or  compromise 
any  claims  against  it,  and  dispose  of  the  partnership  prop- 
erty. 

Legislation  §  2461.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1320. 

2.  Amendment  by  Stats.  1901,  p.  416;  unconstitutional.  See  note, 
§  4,  ante. 

§  2462.  What  partner  may  do  in  liquidation.  A  partner  au- 
thorized to  act  in  liquidation,  may  indorse,  in  the  name  of  the 
firm,  promissory  notes,  or  other  obligations  held  by  the  part- 
nership, for  the  purpose  of  collecting  the  same,  but  he  cannot 
create  any  new  obligation  in  its  name,  or  revive  a  debt  against 
the  firm,  by  an  acknoAvledgment,  when  an  action  thereon  is 
barred  under  the  provisions  of  the  Code  of  Civil  Procedure. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  252.] 


§  2466  CIVIL  CODE.  660 

Legislation  §  2462.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1321),  and  then  read:  "A  partner  authorized 
to  act  in  liquidation  may  enter,  in  the  name  of  the  firm,  into  any  obli- 
gation, by  way  of  satisfaction  of  a  partnership  debt,  or  as  a  collateral 
security  therefor;  but  he  cannot  make,  draw,  or  indorse  any  other 
obligation  in  its  name,  nor  revive  a  debt  against  the  firm,  by  any 
acknowledgment,  within  the  provisions  of  the  Code  of  Civil  Procedure 
concerning  the  times  of  commencing  civil  actions." 

2,  Amended  by  Code  Amdts.  1873-74,  p.  252. 

AETICLE  VII. 

Of  the  Use  of  Fictitious  Names. 

§  2466.  Fictitious  names  to  be  registered  with  county  clerk. 

§  2467.  Style  of  foreign  partnership. 

§  2468.  Certificates  of  partnership,  execution,  filing,  etc. 

§  2469.  New  certificates  on  change  of  partner. 

§  2470.  Register  of  firms. 

§  2471.  Certified  copies  of  register,  and  proof  of  publication,  to  be  evi- 
dence. 

§  2472.  Foreign  copartnership.     Designation  of  agent. 

§  2466.     Fictitious  names  to  be  registered  with  county  clerk. 

Except  as  otherwise  provided  in  the  next  section  every  per- 
son transacting  business  in  this  state  under  a  fictitious  name 
and  every  partnership  transacting  business  in  this  state  under 
a  fictitious  name,  or  a  designation  not  shoAving  the  names  of 
the  persons  interested  as  partners  in  such  business,  must  file 
with  the  clerk  of  the  county  in  which  his  or  its  principal  place 
of  business  is  situated,  a  certificate,  stating  the  name  in  full 
and  the  place  of  residence  of  such  person  and  stating  the  names 
in  full  of  all  the  members  of  such  partnership  and  their  places 
of  residence.  Such  certificate  must  be  published  once  a  Aveek 
for  four  successive  Aveeks,  in  a  ncAvspaper  published  in  the 
county,  if  there  be  one,  and  if  there  be  none  in  such  county, 
then  in  a  ncAvspaper  in  an  adjoining  county.  [Amendment  ap- 
proved 1911;  Stats.  1911,  p.  440.] 

Legislation  §  2466.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1322),  and  then  read:  "No  partnership  or 
person  may  transact  business  by  a  fictitious  name,  or  in  the  name  of 
a  person  not  interested  in  such  business,  except  as  prescribed  in  this 
article." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  253,  to  read:  "Except  as 
otherwise  provided  in  the  next  section,  every  partnership  transacting 
business  in  this  state  under  a  fictitious  name,  or  a  designation  not 
showing  the  names  of  the  persons  interested  as  partners  in  such  busi- 
ness, must  file  with  the  clerk  of  the  county  in  which  its  principal  place 
of  business  is  situated,  a  certificate,  stating  the  names  in  full  of  all 
the  members  of  such  partnership  and  their  places  of  residence,  and 
publish  the  same  once  a  week  for  four  successive  weeks,  in  a  newspaper 
published  in  the  county,  if  there  be  one,  and  if  there  be  none  in  such 
count}',  then  in  a  newspaper  published  in  an  adjoining  county." 

3.  Amended  by  Stats.  1911,  p.  440. 


661  PARTNERSHIP.      USE   OP   FICTITIOUS  NAMES.  §  2468 

§  2467.  style  of  foreign  partnership.  A  commercial  or 
banking  partnership,  estal)lishccl  and  transacting  business  in 
a  place  without  the  United  States,  may,  without  filing  the  cer- 
tificate or  making  the  publication  prescribed  in  the  last  section, 
use  in  this  state  the  partnership  name  used  by  it  there,  al- 
though it  be  fictitious,  or  do  not  show^  the  names  of  the  persons 
interested  as  partners  in  such  business.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  253.] 

Legislation  §  2467.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1323),  and  then  read:  "A  commercial  partner- 
ship, established  and  transacting  business  in  a  place  without  the  United 
States,  maj^  use  in  this  state  the  partnership  name  used  by  it  there, 
although  fictitious." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  253. 

§  2468.     Certificates  of  partnership,   execution,   filing-,   etc. 

The  certificate  filed  with  the  clerk  as  provided  in  section  2466 
must  be  signed  by  the  person  therein  referred  to,  or  by  the 
partners,  as  the  case  may  be,  and  acknowledged  before  some 
officer,  authorized  to  take  the  acknowledgment  of  conveyance 
of  real  property.  Where  a  business  is  hereafter  commenced 
by  a  person  under  a  fictitious  name  or  a  partnership  is  here- 
after formed,  the  certificate  must  be  filed  and  the  publication 
designated  in  that  section  must  be  made  within  one  month 
after  the  commencement  of  such  business,  or  after  the  forma- 
tion of  the  partnership,  or  Avithin  one  month  from  the  time 
designated  in  the  agreement  of  its  members  for  the  commence- 
ment of  the  partnership.  Where  the  business  has  been  here- 
tofore conducted  under  a  fictitious  name  or  where  the  partner- 
ship has  been  heretofore  formed,  the  certificate  must  be  filed 
and  the  publication  made  within  six  months  after  the  passage 
of  this  act.  No  person  doing  business  under  a  fictitious  name, 
or  his  assignee  or  assignees,  nor  any  persons  doing  business 
as  partners  contrary  to  the  provisions  of  this  article,  or  their 
assignee  or  assignees,  shall  maintain  any  action  upon  or  on  ac- 
count of  any  contract  or  contracts  made,  or  transactions  had, 
under  such  fictitious  name,  or  in  their  partnership  name,  m  any 
court  of  this  state  until  the  certificate  has  been  filed  and  the 
publication  has  been  made  as  herein  required.  [Amendment 
approved  1911 ;  Stats.  1911,  p.  441.] 

Legislation  §  2468.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1324),  and  then  read:  "The  name  of  a  part- 
nership, which  has  had  business  relations  with  places  without  the 
United  States,  may  be  continued  in  use  by  the  persons  succeeding  to 
its  business,  and  Ijy  their  successors,  upon  compliance  with  the  pro- 
visions of  this  article,  and  with  the  consent  of  the  persons,  if  living, 
whose  names  are  used." 

2.  Amended- by  Code  Amdts.  1873-74,  p.  253,  to  read:  "The  certificate 
filed  with  the  clerk,  as  provided  iu  section  twenty-four  hundred  and 


§  2470  CIVIL  CODE.  662 

sixty-six,  must  be  signed  by  the  partners,  and  acknowledged  before 
some  oflScer  authorized  to  take  the  acknowledgment  of  conveyances  of 
real  property.  Where  the  partnership  is  hereafter  formed,  the  certifi- 
cate must  be  filed,  and  the  publication  designated  in  that  section  must 
be  made  within  one  month  after  the  formation  of  the  partnership,  or 
within  one  month  from  the  time  designated  in  the  agreement  of  its 
members  for  the  commencement  of  the  partnership;  where  the  part- 
nership has  been  heretofore  formed,  the  certificate  must  be  filed,  and 
the  publication  made  within  six  months  after  the  passage  of  this  act. 
Persons  doing  business  as  partners  contrary  to  the  provisions  of  this 
article,  shall  not  maintain  any  action  upon  or  on  account  of  any  con- 
tracts made  or  transactions  had  in  their  partnership  name,  in  any  court 
of  this  state,  until  they  have  first  filed  the  certificate  and  made  the 
publication  herein  recjuired." 

3.  Amendment  by  Stats.  1901,  p.  416;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1911,  p.  441. 

§  2469.  New  certificates  on  change  of  partner.  On  every 
change  in  the  members  of  a  partnership  transacting  business 
in  this  state  under  a  fictitious  name,  or  a  designation  which 
does  not  show  the  names  of  the  persons  interested  as  partners 
in  its  business,  except  in  the  cases  mentioned  in  section  twenty- 
four  hundred  and  sixty-seven,  a  new  certificate  must  be  filed 
with  the  county  clerk,  and  a  ncAv  publication  made  as  required 
by  this  article  on  the  formation  of  such  partnership. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  254.] 

Legislation  §  2469.  1.  Enacted  March  21,  1872  (based  on  Field's 
-Draft,  N.  Y.  Civ.  Code,  §  1325),  and  then  read:  "On  every  change  of 
the  persons  tontinuing  the  use  of  a  partnership  name,  under  the  last 
section,  the  person  acquiring  the  right  to  use  it  must  sign  and  acknowl- 
edge, before  a  proper  officer  for  that  purpose,  a  certificate  stating  the 
name  of  each  person  dealing  under  such  name,  and  his  place  of  resi- 
dence, and  must  file  the  same  with  the  clerk,  of  the  county  in  which 
their  principal  place  of  business  is  situated;  and  must  publish  such  cer- 
tificate, or  a  statement  containing  the  substance  thereof,  once  in  each 
week  for  four  successive  weeks,  beginning  within  one  week  after  his 
first  using  such  name,  in  a  newspaper  printed  in  the  county,  or  nearest 
the  county  (if  none  is  printed  in  the  county),  in  which  such  principal 
place  of  business  is  situated." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  254. 

§  2470.  Register  of  firms.  Every  county  clerk  must  keep  a 
register  of  the  names  of  firms  and  persons  mentioned  in  the 
certificates  filed  with  him  pursuant  to  this  article,  entering  in 
alphabetical  order  the  name  of  every  such  person  who  does 
business  under  a  fictitious  name,  and  the  fictitious  name,  and 
the  name  of  every  such  partnership,  and  of  each  partner  there- 
in.     [Amendment  approved  1911;  Stats.  1911,  p.  440.] 

Legislation  §  2470.  1.  Enacted  March  21.  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1362.  As  enacted  in  1872  the  section  read: 
"Every  county  clerk  must  keep  a  register  of  the  names  of  firms  and 
persons  mentioned  in  the  certificates  filed  with  him,  pursuant  to  the 


663  SPECIAL  PARTNERSHIP.      FORMATION  OF.  §  2477 

last   section   entering   in   alphabetical   order   the   name   of   every   such 
partnership,  and  of  each  partner  therein." 

2.  Amended  by  Code  Amdts.  1873-7J:,  p.  2.54,  substituting  the  words 
"this  article"  for  "the  last  section." 

3.  Amended  by  Stats.  1911,  p.  440. 

§  2471.  Certified  copies  of  reg-ister,  and  proof  of  publica- 
tion, to  be  evidence.  Copies  of  the  entries  of  a  county  clerk,  as 
herein  directed,  when  certified  by  him,  and  affidavits  of  publi- 
cation, as  herein  directed,  made  by  the  printer,  publisher,  or 
chief  clerk  of  a  newspaper,  are  presumptiA^e  evidence  of  the 
facts  therein  stated. 

Legislation  §  2471.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1327. 

§  2472.     Foreign    copartnership.     Designation    of    agent. 

Every  copartnership,  other  than  those  mentior^d  in  section 
two  thousand  four  hundred  and  sixty-seven  of  this  code, 
domiciled  without  this  state,  and  having  no  regular  T)lace  of 
business  Avithin  this  state,  must,  Avithin  forty  days  from  the 
time  it  commences  to  do  business  therein,  file  in  the  office  of 
the  secretary  of  state  a  designation  of  some  person  residing 
Avithin  the  state  upon  whom  process  issued  by  authority  of  or 
under  any  laAv  of  this  state,  may  be  serA^ed.  A  copy  of  such 
designation,  duly  certified  by  the  secretary  of  state,  is  sufP  ■ 
cient  cAn'dence  of  such,  appointment.  Such  process  may  be 
serA^ed  on  the  person  so  designated,  or,  in  the  event  that  no 
such  person  is  designated,  then  on  the  secretary  of  state,  and 
the  serAHce  is  a  valid  serAdce  on  such  copartnership. 
Legislation  §  2472.     Added  by  Stats.  1909,  p.  1065. 

CHAPTER  III. 

Special  Partnership. 

Article  I.  Formation  of  Partnership.     §§2477-2485. 

TT.  Powers,  Eights,  and  Duties  of  the  Partners.     §§  2489-2496. 

in.  Liability  of  Partners.     §§2500-2503. 

IV.  Alteration  and  Dissolution  of  the  Partnership.     §§  2507-2510. 

AETICLE  I. 
Formation   of  Partnership. 
§  2477.     Formation  of  special  partnership. 
§  2478.     Of  what   to  consist. 
§  2479.     Certified  statement. 

§  2480.     Acknowledged  and  recorded.     False  statement. 
§  2481.     Affidavit  as  to  sums  contributed. 
§  2482.     No  partnership  until  compliance. 
§  2483.     Certificate  to  be  published. 
§  2484.     Affidavit  of  publication  filed. 
§  2485.     Eenewal  of  special  partnership. 

§  2477.  Formation  of  special  partnership.  A  special  part- 
nership may  be  formed  by  tAvo  or  more  persons,  in  the  manncT- 


§  2481  CIVIL  CODE.  664 

and  with  the  effect  prescribed  in  this  chapter,  for  the  transac- 
tion of  any  business  except  banking  or  insurance. 

Fraud  in  partnership  matters,  a  misdemeanor:  Pen.  Code,  §  358. 
Legislation  §  2477.     Euacted  March  21.  1872;  based  on  Stats.  1869-70, 
p.  123,  §  1. 

§  2478.  Of  what  to  consist.  A  special  partnership  may  con- 
sist of  one  or  more  persons  called  general  partners,  and  one 
or  more  persons  called  special  partners. 

Legislation  §  2478.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  123,  §  2. 

§  2479.  Certified  statement.  Persons  desirous  of  forming 
a  special  partnership  must  severally  sign  a  certificate,  stating: 

1.  The  name  under  Avhich  the  partnership  is  to  be  con- 
ducted ; 

2.  The  general  nature  of  the  business  intended  to  be  trans- 
acted ; 

3.  The  names  of  all  the  partners,  and  their  residences, 
specifying  which  are  general  and  which  are  special  partners ; 

4.  The  amount  of  capital  which  each  special  partner  has  con- 
tributed to  the  common  stock ; 

5.  The  periods  at  which  such  partnership  will  begin  and 
end. 

Legislation  §  2479.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  123,  §  3. 

§  2480.     Acknow^ledged    and    recorded.     False    statement. 

Certificates  under  the  last  section  must  be  acknowledged  by 
all  the  partners,  before  some  officer  authorized  to  take  ac- 
knoMledgment  of  deeds,  one  to  be  filed  in  the  clerk's  office,  and 
the  other  recorded  in  the  office  of  the  recorder  of  the  county  in 
Avhich  the  principal  place  of  business  of  the  partnership  is 
situated,  in  a  book  to  be  kept  for  that  purpose,  open  to  public 
inspection ;  and  if  the  partnership  has  places  of  business  situ- 
ated in  different  counties,  a  copy  of  the  certificate,  certified 
by  the  recorder  in  whose  office  it  is  recorded,  must  be  filed  in 
the  clerk's  office,  and  recorded  in  like  manner  in  the  office  of 
the  recorder  in  every  such  county.  If  any  false  statement  is 
made  in  any  such  certificate,  all  the  persons  interested  in  the 
partnership  are  liable,  as  general  partners,  for  all  the  engage- 
ments thereof. 

Legislation  §  2480.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  123,  §4. 

§  2481.  Affidavit  as  to  sums  contributed.  An  affidavit  of 
each  of  the  partners,  stating  that  the  sums  specified  in  the 
certificate  of  the  partnership  as  having  been  contributed  by 


665  SPECIAL    PARTNERSHIP.      FORMATION    OF.  §  2485 

each  of  the  special  partners,  have  been  actually  and  in  good 
faith  paid,  in  the  lawful  money  of  the  United  States,  must  be 
filed  in  the  same  office  with  the  original  certificate. 

Legislation  §  2481.     Enacted  March  21,  1872;  based  on  Stats.  18G9-70. 
p.  123,  §  5. 

§  2482.  No  partnership  until  compliance.  No  special  part- 
nership is  formed  until  the  provisions  of  the  last  five  sections 
are  complied  with. 

Legislation  §  2482.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 

p.  123,  §  6. 

§  2483.  Certificate  to  be  published.  The  certificate  men- 
tioned in  this  article,  or  a  statement  of  its  substance,  must  be 
published  in  a  newspaper  printed  in  the  county  where  the 
original  certificate  is  filed,  and  if  no  newsq^aper  is  there  printed, 
then  ill  a  newspaper  in  the  state  nearest  thereto.  Such  publi- 
cation must  be  made  once  a  week  for  four  successive  wrecks, 
beginning  within  one  week  from  the  time  of  filing  the  certi- 
ficate. In  case  such  publication  is  not  so  made,  the  partner- 
ship must  be  deemed  general. 

Legislation  §  2483.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 

p.  123,  §  7. 

§  2484.  Affidavit  of  publication  filed.  An  affidavit  of  the 
makiiig  of  the  publication  mentioned  in  the  preceding  section, 
made  by  the  printer,  publisher,  or  chief  clerk  of  the  newspaper 
in  which  such  publication  is  made,  may  be  filed  with  the  county 
recorder  with  Avhom  the  original  certificate  was  filed,  and  is 
presumptive  evidence  of  the  facts  therein  stated. 

Legislation  §  2484.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 

p.  124,  §  8. 

§  2485.  Renewal  of  special  partnership.  Every  renewal  or 
continuance  of  a  special  partnership  must  be  certified,  re- 
corded, verified,  and  published  in  the  same  manner  as  upon  its 
original  formation. 

Compare  with  §  2507,  post. 

Legislation  §  2485.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  124,  §  9. 


§  2494  CIVIL  CODE.  666 

AETICLE  II. 

Powers,   Eights,    and  Duties  of  the   Partners. 

§  2489.  Who  to  do  business. 

§  2490.  Special  partners  may  advise. 

§  2491.  May  loan  money.     Insolvency. 

§  2492.  General  partners  may  sue  and  be  sued. 

§  2493.  Withdrawal  of  capital. 

§  2494.  Interest  and  profits. 

§  2495.  Eesult  of  withdrawing  capital. 

§  2496.  Preferential  transfer  void. 

§  2489.  Who  to  do  business.  The  general  partners  only 
have  authority  to  transact  the  business  of  a  special  partner- 
ship. 

Legislation  §  2489.  1.  Enacted  March  21,  1872;  based  on  Stats.  1869- 
70,  p.  124,  §  10. 

2.  Amendment  by  Stats.  1901,  p.  416;  unconstitutional.  See  note,  §  4, 
ante. 

§  2490.  Special  partners  may  advise,  A  special  partner 
may  at  all  times  investigate  the  partnership  affairs,  and  advise 
his  partners,  or  their  agents,  as  to  their  management. 

Legislation  §  2490,     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  124,  §  11. 

§  2491.  May  loan  money.  Insolvency,  A  special  partner 
may  lend  money  to  the  partnership,  or  advance  money  for  it, 
and  take  from  it  security  therefor,  and  as  to  such  loans  or  ad- 
vances has  the  same  rights  as  any  other  creditor ;  but  in  case  of 
the  insolvency  of  the  partnership,  all  other  claims  -which  he 
may  have  against  it  must  be  postponed  until  all  other  cred- 
itors are  satisfied. 

Legislation  §  2491.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 

p.  124,  §  12. 

§  2492,     General  partners  may   sue  and  be   sued.     In   all 

matters  relating  to  a  special  partnership,  its  general  partners 
may  sue  and  be  sued  alone,  in  the  same  manner  as  if  there 
were  no  special  partners. 

Legislation  §  2492,  Enacted  March  21.  1872;  based  on  Stats.  1869-70. 
p.  124,  §  13. 

§  2493.     Withdrawal  of  capital.     No  special  partner,  under 
any  pretense,  may  -withdraw  any  part  of  the  capital  invested 
by  him  in  the  partnership,  during  its  continuance. 
Withdrawal  of  capital:  See  §  2495,  post. 

Legislation  §  2493.  Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  124,  §  14. 

§  2494,  Interest  and  profits,  A  special  partner  may  receive 
such  laAvful  interest  and  such  proportion  of  profits  as  may  be 


667  LIABILITY    OF   SPECIAL   PARTNERS.  §  2501 

agreed  upon,  if  not  paid  out  of  the  capital  invested  in  the 
partnership  by  him,  or  by  some  other  special  partner,  and  is 
not  bound  to  refund  the  same  to  meet  subsequent  losses. 

Legislation  §  2494.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  124,  §  15. 

§  2495.     Result  of  withdrawing-  capital.    If  a  special  partner 
withdraws  capital  from  the  firm,  contrary  to  the  provisions  of 
this  article,  he  thereby  becomes  a  general  partner. 
Withdrawal  of  capital:  See  §  2493. 

Legislation  §  2495.     Enacted  March  21, 1872;  based  on  Stats.  1869-70, 
p.  124,  §  16. 

§  2496.  Preferential  transfer  void.  Every  transfer  of  the 
property  of  a  special  partnership,  or  of  a  partner  therein,  made 
after  or  in  contemplation  of  the  insolvency  of  such  partner- 
ship or  partner,  with  intent  to  give  a  preference  to  any  creditor 
of  such  partnership  or  partner  over  any  other  creditor  of  such 
partnership,  is  void  against  the  creditors  thereof;  and  every 
judgment  confessed,  lien  created,  or  security  given,  in  like 
manner  and  with  the  like  intent,  is  in  like  manner  void. 

Legislation  §  2496.     Enacted  March  21, 1872;  based  on  Stats.  1869-70, 
p.  124,  §  17. 

AETICLE  ni. 

Liability  of  Partners. 

§  2500.  Liability  of  partners. 

§  2501.  Of  special  partners. 

§  2502.  Liability  for  unintentional  act. 

§  2503.  Who  may  question  existence  of  special  partnership. 

§  2500.  Liability  of  partners.  The  general  partners  in  a 
special  partnership  are  liable  to  the  same  extent  as  partners  in 
a  general  partnership. 

Legislation  §  2500.     Enacted  March  21, 1872;  based  on  Stats.  1869-70, 

p.  124,  §  18. 

§  2501.  Of  special  partners.  The  contribution  of  a  special 
partner  to  the  capital  of  the  firm,  and  the  increase  thereof,  is 
liable  for  its  debts,  but  he  is  not  otherwise  liable  therefor, 
except  as  follows : 

1.  If  he  has  Avillfully  made  or  permitted  a  false  or  materially 
defective  statement  in  the  certificate  of  the  partnership,  the 
affidavit  filed  therewith,  or  the  published  announcement  there- 
of, he  is  liable,  as  a  general  partner,  to  all  creditors  of  the 
firm; 

2.  If  he  has  willfully  interfered  with  the  business  of  the  firm, 
except  as  permitted  in  article  two  of  this  chapter,  he  is  liable 
in  like  manner ;  or, 


§  2507  CIVIL  CODE.  ees 

3.  If  he  has  willfully  joined  in  or  assented  to  an  act  contrary 
to  any  of  the  i^rovisions  of  article  two  of  this  chapter,  he  is 
liable  in  like  manner. 

False  certificate:  See  ante,  §§  2480,  2482. 
"Article  two  of  this  chapter":  Ante,  §§  2489-2496. 
Legislation  §  2501.     Enacted  March  21, 1872;  based  on  Stats.  1869-70, 
p.  124, §  19. 

§  2502.  Liability  for  unintentional  act.  When  a  special 
partner  has  nnintentionally  done  any  of  the  acts  mentioned  in 
the  last  section,  he  is  liable,  as  a  general  partner,  to  any 
creditor  of  the  firm  who  has  been  actually  misled  thereby  to 
his  prejudice. 

Legislation  §  2502.     Enacted  March  21, 1872;  based  on  Stats.  1869-70, 
p.  125,  §  20. 

§  2503.     Who  may  question  existence  of  special  partnership. 

One  who,  upon  making  a  contract  with  a  partnership,  accepts 
from  or  gives  to  it  a  written  memorandum  of  the  contract,  stat- 
ing that  the  partnership  is  special,  and  giving  the  names  of  the 
special  partners,  cannot  afterwards  charge  the  persons  thus 
named  as  general  partners  upon  that  contract,  by  reason  of 
an  error  or  defect  in  the  proceedings  for  the  creation  of  the 
special  partnership,  prior  to  the  acceptance  of  the  memoran- 
dum, if  an  effort  has  been  made  by  the  partners,  in  good  faith, 
to  form  a  special  partnership  in  the  manner  required  by  article 
one  of  this  chapter. 

"Article  one  of  this  chapter":   Ante.  §§  2477-2485. 
Legislation  §  2503.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  125,  §  21. 

ARTICLE  IV. 

Alteration  and  Dissolution  of  the  Partnership. 

§  2507.  When  special  partnership  becomes  general. 

§  2508.  How  new  special  partners  may  be  admitted. 

§  2509.  Dissolution  of  special  partnership.     Notice. 

§  2510.  The  name  of  a  special  partner  not  used,  unless. 

§  2507.  When  special  partnership  becomes  general.  A 
special  partnership  becomes  general  if,  Avithin  ten  days  after 
any  partner  withdraws  from  it,  or  any  new  partner  is  received 
into  it,  or  a  change  is  made  in  the  nature  of  its  business  or  in 
its  name,  a  certificate  of  such  fact,  duly  verified  and  signed  by 
one  or  more  of  the  partners,  is  not  filed  with  the  county  clerk 
and  recorder  with  Avhom  the  original  certificate  of  the  part- 
nership was  filed,  and  notice  thereof  published  as  is  provided 
in  article  one  of  this  chapter  for  the  publication  of  the  cer- 
tificate. 

"Article  one  of  this  chapter":   Ante,  §§  2477-2485. 


669  MINING  PARTNERSHIP.  §  2511 

Legislation  §  2507.  Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  125, §  22. 

§  2508.  How  new  special  partners  may  be  admitted.  New. 
special  partners  may  be  admitted  into  a  special  partnership 
upon  a  certificate,  stating  the  names,  residences,  and  contribu- 
tions to  the  common  stock  of  each  of  such  partners,  signed  by 
each  of  them,  and  by  the  general  partners,  verified,  acknowl- 
edged, or  proved,  according  to  the  provisions  of  article  one  of 
this  chapter,  and  filed  with  the  county  clerk  and  recorder  with 
whom  the  original  certificate  of  the  partnership  was  filed. 

"Article  one  of  this  chapter":  Ante,  §§  2477-2485. 

Legislation  §  2508.  Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  125,  §  23. 

§  2509.     Dissolution    of    special    partnership.     Notice.     A 

special  partnership  is  subject  to  dissolution  in  the  same  man- 
ner as  a  general  partnership,  except  that  no  dissolution,  by  the 
act  of  the  partners,  is  complete  until  a  notice  thereof  has  been 
filed  and  recorded  in  the  office  of  the  county  clerk  and  recorder 
with  whom  the  original  certificate  was  recorded,  and  published 
once  in  each  week,  for  four  successive  weeks,  in  a  newspaper 
printed  in  each  county  where  the  partnership  has  a  place  of 
business. 

Dissolution  of  general  partnership:  See  ante,  §§  2450  et  seq. 
Legislation  §  2509.     Enacted  March  21,  1872;  based  on  Stats.  1869-70, 
p.  125,  §  24. 

§  2510.  The  name  of  a  special  partner  not  used,  unless.  The 
name  of  a  special  partner  must  not  be  used  in  the  firm  name 
of  partnership,  uijless  it  be  accompanied  with  the  word 
"limited." 

Legislation  §  2510.     Enacted  March  21, 1872;  based  on  Stats.  1869-70, 

p.  125,  §  25. 

CHAPTER  IV. 

Mining  Partnership. 

§  2511.  When  a  mining  partnership   exists. 

§  2512.  Express  agreement  not  necessary  to  constitute. 

§  2513.  Profits  and  losses,  how  shared. 

§  2514.  Lien  of  partners. 

§  2515.  Mine.     Partnership  property. 

§  2516.  Partnership  not  dissolved  by  sale  of  interest. 

§  2517.  Purchaser  takes,  sub.ject  to  liens,  unless,  etc. 

§  2518.  Takes  with  notice  of  lien,  when. 

§  2519.  Contract  in  writing,  when  binding. 

§  2520.  Owners  of  majority  of  shares  govern. 

§  2511.  When  a  mining  partnership  exists.  A  mining  part- 
nership exists  when  two  or  more  persons  who  own  or  acquire 


§  2517  CIVIL  CODE.  670 

a  mining  claim  for  the  purpose  of  working  it  and  extracting 
the  mineral  therefrom  actually  engage  in  Avorking  the  same. 
Legislation  §  2511.     Enacted  March  21,  1872. 

§  2512.     Express  agreement  not  necessary  to  constitute.     An 

express  agreement  to  become  partners  or  to  share  the  profits 
and  losses  of  mining  is  not  necessary  to  the  formation  or  ex- 
istence of  a  mining  partnership.  The  relation  arises  from  the 
ownership  of  shares  or  interests  in  the  mine  and  working  the 
same  for  the  purpose  of  extracting  the  minerals  therefrom. 
~~    Legislation  §  2512.     Enacted  March  21,  1872. 

§  2513.  Profits  and  losses,  how  shared.  A  member  of  a  min- 
ing partnership  shares  in  the  profits  and  losses  thereof  in  the 
proportion  which  the  interest  or  share  he  owns  in  the  mine 
bears  to  the  whole  partnership  capital  or  whole  number  of 
shares. 

Legislation  §  2513.     Enacted  March  21,  1872. 

§  2514.  Lien  of  partners.  Each  member  of  a  mining  part- 
nership has  a  lien  on  the  partnership  property  for  the  debts 
due  the  creditors  thereof,  and  for  money  advanced  by  him  for 
its  use.  This  lien  exists  notwithstanding  there  is  an  agreement 
among  the  partners  that  it  must  not. 

Corresponding  sections  as  to  general  partners:  See  ante,  §  2405;  see 

also,  post,  §§  2517,  2518. 

Legislation  §  2514.     Enacted  March  21,  1872. 

§  2515.     Mine.     Partnership  property.     The  mining-ground 
owned  and  worked  by  partners  in  mining,  whether  purchased 
with  partnership  funds  or  not,  is  partnership  property. 
Legislation  §  2515.     Enacted  March  21,  1872. 

§  2516.     Partnership  not  dissolved  by  sale  of  interest.     One 

of  the  partners  in  a  mining  partnership  may  convey  his  interest 
in  the  mine  and  business  without  dissoh-ing  the  partnership. 
The  purchaser,  from  the  date  of  his  purchase,  becomes  a  mem- 
ber of  the  partnership. 

Termination  of  partnership,  generally:  See  ante,  §§  2449  et  seq. 
Sale  of  mine  on  application  of  partner:  See  Code  Civ.  Proc,  §  1530. 
Legislation  §  2516.     Enacted  March  21,  1872. 

§  2517.     Purchaser  takes,  subject  to  liens,  unless,  etc.     A 

purchaser  of  an  interest  in  the  mining-ground  of  a  mining 
partnership  takes  it  subject  to  the  liens  existing  in  favor  of  the 
partners  for  debts  due  all  creditors  thereof,  or  advances  made 
for  the  benefit  of  the  partnership,  unless  he  purchased  in  good 
faith,  for  a  valuable  consideration,  without  notice  of  such  lien. 
Legislation  §  2517.     Enacted  March  21,  1872. 


671  INSURANCE  IN  GENERAL.  §  2527 

§  2518.  Takes  with  notice  of  lien,  when.  A  purchaser  of 
the  interest  of  a  partner  in  a  mine  when  the  partnership  is  en- 
gaged in  working  it,  takes  with  notice  of  all  liens  resulting 
from  the  relation  of  the  partners  to  each  other  and  to  the 
creditors  of  the  partnership. 

Legislation  §  2518.     Enacted  March  21,  1872. 

§  2519.     Contract  in  writing-,  when  binding.     No  member  of 
a  mining  partnership  or  other  agent  or  manager  thereof  can, 
by  a  contract  in  writing,  bind  the  partnership,  except  by  ex- 
press authority  derived  from  the  members  thereof. 
Legislation  §  2519.     Enacted  March  21,  1872. 

§  2520,  Owners  of  majority  of  shares  govern.  The  decision 
of  the  members  owning  a  majority  of  the  shares  or  interests  in 
a  mining  partnership  binds  it  in  the  conduct  of  its  business. 

Majority  of  members  in  general  partnerships:  Ante,  §  2428. 

Legislation  §  2520.     Enacted  March  21,  1872. 

TITLE  XI. 
Insurance. 

Chapter  I.  Insurance  in   General.     Articles  I-XII.     §§  2527-2649. 

II.  Marine   Insurance.     Articles   I-IX.     §§  2655-2746. 

III.  Fire  Insurance.     §§  2752-2757. 

IV.  Life  and  Health  Insurance.     §§  2762-2766. 

CHAPTER  I. 

Insurance  in  Greneral. 

Article  I.  Definition  of  Insurance.     §  2527. 

II.  What  may  be  Insured.     §§  2531-2534. 

m.  Parties  to  the   Contract.     §§  2538-2542. 

IV.  Insurable   Interest.     §§  2546-2558. 

V.  Concealment   and   Eepresentations.     §§  2561-2583. 

VI.  The  Policy.     §§  2586-2599. 

VII.  Warranties.     §§  2603-2612. 

VIII.  Premium.     §§  2616-2622. 

IX.  Loss.     §§  2626-2629. 

X.  Notice  of  Loss.     §§  2633-2637. 

XI.  Double   Insurance.     §§  2641,   2642. 

XII.  Reinsurance.     §§  2646-2649. 

ARTICLE  I. 
Definition   of  Insurance. 
§   2527.     Insurance,  what. 

§  2527.  Insurance,  what.  Insurance  is  a  contract  whereby 
one  undertakes  to  indemnify  another  against  loss,  damage,  or 
liability,  arising  from  an  unknown  or  contingent  event. 


§  2534  CIVIL  CODE.  672 

Insurance  corporations:   See  ante,  §§  414  et  seq. 

Office  and  duties  of  insurance  commissioners:   Pol.  Code,  §§  59-4-634. 
Destruction  of  insured  property:  Pen.  Code,  §  548. 
Arson:  Pen.  Code,  §§  447-455. 

Legislation  §  2527.     Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1357. 

AETICLE  II. 

What   may   be  Insured. 

§  2531.  What  events  may  be  insured  against. 

§   2532.  Insurance  of  lottery  or  lottery  prize  unauthorized. 

§  2533.  Usual  kinds  of  insurance. 

§   2534.  All  subject  to  this  chapter. 

§  2531.  What  events  may  be  insured  against.  Any  con- 
tingent or  nnknown  event,  Avhether  past  or  future,  Avhieh  may 
damnify  a  person  having  an  insurable  interest,  or  create  a 
liability  against  him,  may  be  insured  against,  subject  to  the 
provisions  of  this  chapter. 

Insurable  interest:  See  post,  §§  2546  et  seq.,  2659  et  seq. 
Legislation  §  2531.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1358. 

§  2532.     Insurance  of  lottery  or  lottery  prize  unauthorized. 

The  preceding  section  does  not  authorize  an  insurance  for  or 
against  the  drawing  of  any  lottery,  or  for  or  against  any  chance 
or  ticket  in  a  lottery  drawing  a  prize. 
Lotteries:  Pen.  Code,  §§  324,  326. 

Legislation  §  2532.     Enacted  March  21,  1872;   based  on  Const.  1849, 
art.  iv,  §  27;  Stats.  1861,  p.  229,  §  8. 

§  2533.  Usual  kinds  of  insurance.  The  most  usual  kinds  of 
insurance  are : 

1.  Marine  insurance ; 

2.  Fire  insurance ; 

3.  Life  insurance ; 

4.  Health  insurance  ;  and, 

5.  Accident  insurance. 

Marine  insurance:  See  post.  §§  2655  et  seq. 
Fire  insurance:   See  post.  §§  2752  et  seq. 
Life  and  health  insurance:  See  post,  §§  2762  et  seq. 
Legislation  §  2533.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1359. 

§  2534.  All  subject  to  this  chapter.  All  kinds  of  insurance 
are  subject  to  the  provisions  of  this  chapter. 

Legislation  §  2534.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1360. 


673  PARTIES  TO  CONTRACT   OP   INSURANCE.  §  2541 

AETICLE  III. 

Parties  to  the  Contract. 

§  2538.  Designation  of  parties. 

§  2539.  Who  may  insure. 

§  2540.  Who  may  be  insured. 

§   2541.  Assignment  to   mortgagee  of  policy   on  thing  insured. 

§  2542.  New  contract  between  insurer  and  assignee. 

§  2538.  Designation  of  parties.  The  person  who  undertakes 
to  indemnify  another  by  a  eontrtict  of  insurance  is  called  the 
insurer,  and  the  person  indemnified  is  called  the  insured. 

Legislation  §  2538.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

K  Y.  Civ.  Code,  §  1361. 

§  2539.  Who  may  insure.  Any  one  capable  of  making  a 
contract  may  be  an  insurer,  subject  to  the  restrictions  imposed 
by  special  statutes  upon  foreign  corporations,  non-residents, 
and  others. 

Legislation  §  2539.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1362. 

§  2540.  Who  may  be  insured.  Any  one  except  a  public 
enemy  may  l^e  insured. 

Legislation  §  2540.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1363. 

§  2541.     Assig-nment  to  mortg-agee  of  policy  on  thing  insured. 

Unless  the  policy  otherwise  provides,  where  a  mortgagor  of 
property  effects  insurance  in  his  own  name  providing  that  the 
loss  shall  be  payable  to  the  mortgagee,  or  assigns  a  policy  of 
insurance  to  a  mortgagee,  the  insurance  is  deemed  to  be  upon 
the  interest  of  the  mortgagor,  who  does  not  cease  to  be  a 
party  to  the  original  conti-act,  and  any  act  of  his,  prior  to  the 
loss,  which  would  otherwise  avoid  the  insurance  will  have  the 
same  effect,  although  the  property  is  in  the  hands  of  the  mort- 
gagee, but  any  act  which,  under  the  contract  of  insurance,  is 
to  be  performed  by  the  mortgagor,  may  be  performed  by  the 
mortgagee  therein  named,  with  the  same  effect  as  if  it  had  been 
performed  by  the  mortgagor.  [Amendment  approved  1909 ; 
Stats.  1909,  p.  914.] 

Legislation  §  2541.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §1364;  Bergen  v.  Builders'  Insurance  Co.,  28 
Cal.  541),  and  then  read:  "Where  a  mortgagor  of  property  effects  in- 
surance in  his  own  name,  providing  that  the  loss  shall  be  payable  to 
the  mortgagee,  or  assigns  a  policy  of  insurance  to  a  mortgagee,  the 
insurance  is  deemed  to  be  upon  the  interest  of  the  mortgagor,  who 
does  not  cease  to  be  a  party  to  the  original  contract,  and  any  act  of 
his  which  would  otherwise  avoid  the  insurance  will  have  the  same 
effect,  although  the  property'  is  in  the  hands  of  the  mortgagee." 

2.  Amendment  by  Stats.  1901,  p.  416;  unconstitutional.  See  note, 
§  4,  ante. 

Civ.  Code — 43 


§  2547  CIVIL  CODE.  674 

3.  Amended  by  Stats.  1905,  p.  616,  adding  the  final  clause  after  "the 
mortgagee,"  which  did  not  then  have  the  words  "therein  named";  the 
code  commissioner  saying  of  the  addition,  that  it  "is  designed  to  au- 
thorize a  mortgagee  in  whose  favor  insurance  is  effected,  to  perform 
for  the  mortgagor  any  acts  to  be  performed  by  him,  with  the  same 
effect  as  if  performed  by  the  mortgagor." 

4.  Amended  by  Stats.  1909,  p.  914. 

§  2542.     New  contract  between  insurer  and  assig^nee.     If  an 

insurer  assents  to  the  transfer  of-~an  insurance  from  a  mort- 
gagor to  a  mortgagee,  and,  at  the  time  of  his  assent,  imposes 
further  obligations  on  the  assignee,  making  a  new  contract 
with  him,  the  acts  of  the  mortgagor  cannot  affect  his  rights. 
Legislation  §  2542.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1365. 

AKTICLE  rV. 

Insurable  Interest. 

§  2546.  Insurable  interest,  what. 

§  2547.  In  what  may  consist. 

§  2548.  Interest  of  carrier  or  depositary. 

§  2549.  Mere  expectancies. 

§  2550.  Measure  of  interest  in  property. 

§  2551.  Insurance  without  interest,  illegal. 

§  2552.  When  interest  must  exist. 

§  2553.  Effect  of  transfer. 

§  2554.  Transfer  after  loss. 

§  2555.  Exception  in  the  case  of  several  subjects  in  one  policy. 

§  2556.  In  ease  of  the  death  of  the  insured. 

§  2557.  In  the  case  of  transfer  between  co-tenants. 

§  2558.  Policy,  when  void. 

§2546.  Insurable  interest,  what.  Every  interest  in  prop- 
erty, or  any  relation  thereto,  or  liability  in  respect  thereof,  of 
such  a  nature  that  a  contemplated  peril  might  directly  damnify 
the  insured,  is  an  insurable  interest. 

Partner:  See  post,  §  2590. 
Bailees  or  carriers:  See  post,  §  2548. 
Future  products  insurable:   See  post,  §  2549. 
Life  insurance:   See  post,  §§  2762,  2763. 
Stating  insurer's  interests  in  policy:  See  post,  §§  2568,  2587. 
Legislation  §  2546.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1366. 

§  2547.  In  what  may  consist.  An  insurable  interest  in  prop- 
erty may  consist  in : 

1.  An  existing  interest ; 

2.  An  inchoate  interest  founded  on  an  existing  interest ;  or, 

3.  An  expectancy,  coupled  with  an  existing  interest  in  that 

out  of  which  the  expectancy  arises. 

Legislation  §  2547.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1367. 


675  INSURABLE  INTEREST.  §  2554 

§  2548.  Interest  of  carrier  or  depositary.  A  carrier  or  de- 
positary of  any  kind  has  an  insurable  interest  in  a  thing  held 
by  him  as  such,  to  the  extent  of  its  value. 

Legislation  §  2548.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1368. 

§  2549.  Mere  expectancies.  A  mere  contingent  or  expect- 
ant interest  in  anything,  not  founded  on  an  actual  right  to  the 
thing,  nor  upon  any  valid  contract  for  it,  is  not  insurable. 

Legislation  §  2549.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1369. 

§  2550.  Measure  of  interest  in  property.  The  measure  of 
an  insurable  interest  in  property  is  the  extent  to  which  the 
insured  might  be  damnified  by  loss  or  injury  thereof. 

Insurance  without  interest:  See  post,  §  2551. 
Measure  of  indemnity  in  marine  insurance:  See  post,  §2736. 
Legislation  §  2550.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
jST.  Y.  Civ.  Code,  §  1370. 

§  2551.  Insurance  without  interest,  illegal.  The  sole  object 
of  insurance  is  the  indemnity  of  the  insured,  and  if  he  has  no 
insurable  interest  the  contract  is  void. 

Legislation  §  2551.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1371. 

§  2552.  When  interest  must  exist.  An  interest  insured 
must  exist  when  the  insurance  takes  effect,  and  when  the  loss 
occurs,  but  need  not  exist  in  the  mean  time. 

Legislation  §  2552.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1372. 

§  2553.  Effect  of  transfer.  Except  in  the  cases  specified  in 
the  next  four  sections,  and  in  the  cases  of  life,  accident,  and 
health  insurance,  a  change  of  interest  in  any  part  of  a  thing 
insured,  unaccompanied  by  a  corresponding  change  of  interest 
in  the  insurance,  suspends  the  insurance  to  an  equivalent  ex- 
tent, until  the  interest  in  the  thing  and  the  interest  in  the  in- 
surance are  vested  in  the  same  person. 

Transfer  by  partner:  See  post,  §  2557. 

Transfer  by  co-owner:  See  post,  §  2557. 

Transfer  by  operation  of  law:  Post,  §  2556. 

Transfer  of  thing  insured  does  not  transfer  policy:  See  post,  §  2593. 

Transfer  of  life  insurance  policy:  See  post,  §  2764. 

Legislation  §  2553.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1373. 

§  2554.  Transfer  after  loss.  A  change  of  interest  in  a  thing 
insured,  after  the  occurrence  of  an  injury  which  results  in  a 
loss,  does  not  affect  the  right  of  the  insured  to  indemnity  for 
the  loss. 


§  2558  .  CIVIL  CODE.  676 

Legislation  §  2554.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1374. 

§  2555.  Exception  in  the  case  of  several  subjects  in  one 
policy.  A  change  of  interest  in  one  or  more  of  several  distinct 
things,  separately  insured  by  one  policy,  does  not  avoid  the  in- 
surance as  to  the  others. 

Legislation,  §  2555.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1375. 

§  2556.  In  case  of  the  death  of  the  insured.  A  change  of 
interest,  by  will  or  succession,  on  the  death  of  the  insured,  does 
not  avoid  an  insurance ;  and  his  interest  in  the  insurance  passes 
to  the  person  taking  his  interest  in  the  thing  insured. 

Legislation  §  2556.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1376. 

§  2557.  In  the  case  of  transfer  between  co-tenants.  A  trans- 
fer of  interest  by  one  of  several  partners,  joint  owners,  or 
owners  in  common,  who  are  jointly  insured,  to  the  others,  does 
not  avoid  an  insurance,  even  though  it  has  been  agreed  that 
the  insurance  shall  cease  upon  an  alienation  of  the  thing  in- 
sured. 

Insurance  by  partner  or  co-tenant:   See  post,  §  2590. 
Legislation  §  2557.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1377. 

§  2558.  Policy,  when  void.  Every  stipulation  in  a  policy  of 
insurance  for  the  payment  of  loss  Avhether  the  person  insured 
has  or  has  not  any  interest  in  the  property  insured,  or  that  the 
policy  shall  be  received  as  proof  of  such  interest  and  every 
policy  executed  by  way  of  gaming  or  wagering,  is  void. 
Legislation  §  2558.     Added  by  Code  Amdts.  1873-74,  p.  255. 

AETICLE  V. 
Concealment    and    Representations. 

§  2561.  Concealment,  what. 

§  2562.  Effect  of  concealment. 

§  2563.  What  must  be  disclosed. 

§  2564.  Matters  which  need  not  be  communicated  without  inquiry. 

§  2565.  Test  of  materiality. 

§  2566.  Matters  which  each  is  bound  to  know. 

§  2567.  Waiver  of  communication. 

§  2568.  Interest  of  insured. 

§  2569.  Fraudulent  warranty. 

§  2570.  Matters   of   opinion. 

§  2571.  Eepresentation,  what. 

§  2572.  When  made. 

§  2573.  How  interpreted. 

§  2574.  Eepresentation  as  to  future. 

§  2575.  How  may  affect  policy. 

§  2576.  When  may  be  withdrawn. 


677  CONCEALMENT   AND  REPRESENTATIONS.  §  2564 

§  2577.  Time  intended  by  representation. 

§  2578.  Eepresenting  information. 

§  2579.  Falsity. 

§  2580.  Effect  of  falsity. 

§  2581.  Materiality. 

§  2582.  Application  of  provisions  of  this  article. 

§  2583.  Eight  to  rescind. 

§  2561,  Concealment,  what.  A  neglect  to  communicate  that 
which  a  party  knoAvs,  and  ought  to  communicate,  is  called  a 
concealment. 

Concealment,     "Party"  refers  to  either  party  to  the  contract:   See 

post,  §  2563. 

Concealment  in  marine  insurance:  See  post,  §§  2669  et  seq. 

Legislation  §  2561,  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1378. 

§  2562.  Effect  of  concealment,  A  concealment,  whether  in- 
tentional or  unintentional,  entitles  the  injured  party  to  rescind 
a  contract  of  insurance. 

Legislation  §  2562.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1379. 

§  2563.  What  must  be  disclosed.  Each  party  to  a  contract 
of  insurance  must  communicate  to  the  other,  in  good  faith,  all 
facts  within  his  knowledge  Avhich  are  or  which  he  believes  to 
be  material  to  the  contract,  and  which  the  other  has  not  the 
means  of  ascertaining,  and  as  to  which  he  makes  no  warranty. 

Legislation  §  2563.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1380. 

§  2564.  Matters  which  need  not  be  communicated  without 
inquiry.  Neither  party  to  a  contract  of  insurance  is  bound  to 
communicate  information  of  the  matters  following,  except  in 
answer  to  the  inquiries  of  the  other : 

1.  Those  which  the  other  knows ; 

2.  Those  which,  in  the  exercise  of  ordinary  care,  the  other 
ought  to  know,  and  of  which  the  former  has  no  reason  to 
suppose  him  ignorant ; 

3.  Those  of  w^hich  the  other  waives  communication; 

4.  Those  which  prove  or  tend  to  prove  the  existence  of  a  risk 
excluded  by  a  warranty,  and  which  are  not  otherwise  material ; 
and, 

5.  Those  which  relate  to  a  risk  excepted  from  the  policy,  and 
which  are  not  otherwise  material. 

Waiver  of  communication:  See  post,  §  2567. 

Facts  covered  by  warranty:  See  post,  §  2569. 

Legislation  §  2564.  Enacted  March  21,  1872;  based  ou  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1381;  2  Duer  on  Marine  Insurance,  pp.  552,  577,  §  15; 
p.  579,  §  16. 


§  2571  CIVIL  CODE.  _  678 

§  2565.  Test  of  materiality.  Materiality  is  to  be  determined 
not  by  the  event,  but  solely  by  the  probable  and  reasonable  in- 
fluence of  the  facts  upon  the  party  to  whom  the  communica- 
tion is  due,  in  forming  his  estimate  of  the  disadvantages  of  the 
proposed  contract,  or  in  making  his  inquiries. 
Materiality  of  representation:  See  post,  §  2581. 

Legislation  §  2565.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1382;  2  Duer  on  Marine  Insurance,  pp.  382-403. 

§  2566.  Matters  which  each  is  bound  to  know.  Each  party 
to  a  contract  of  insurance  is  bound  to  know  all  the  general 
causes  which  are  open  to  his  inquiry,  equally  with  that  of  the 
other,  and  which  may  affect  either  the  political  or  material 
perils  contemplated ;  and  all  general  usages  of  trade. 

Legislation  §  2566.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1383;  a  Duer  on  Marine  Insurance,  p.  560. 

§  2567.  Waiver  of  communication.  The  right  to  informa- 
tion of  material  facts  may  be  Avaived,  either  by  the  terms  of 
insurance  or  by  neglect  to  nmke  inquiries  as  to  such  facts, 
where  they  are  distinctly  implied  in  other  facts  of  Avhich 
information  is  communicated. 

Legislation  §  2567.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1384. 

§2568.  Interest  of  insured.  Information  of  the  nature,  or 
amount  of  the  interest  of  one  insured  need  not  be  com- 
municated unless  in  answer  to  an  inquiry,  except  as  prescribed 
by  section  two  thousand  five  hundred  and  eigl^ty-seven. 

Legislation  §  2568.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1385. 

§  2569.  Fraudulent  warranty.  An  intentional  and  fraud- 
ulent omission,  on  the  part  of  one  insured,  to  communicate  in- 
formation of  matters  proving  or  tending  to  prove  the  falsity  of 
a  warranty,  entitles  the  insurer  to  rescind. 

Legislation  §  2569.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1386;  2  Duer  on  Marine  Insurance,  pp.  435,  573. 

§  2570.  Matters  of  opinion.  Neither  party  to  a  contract  of 
insurance  is  bound  to  communicate,  even  upon  inquiry,  in- 
formation of  his  own  judgment  upon  the  matters  in  question. 

Legislation  §  2570.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  1386;  2  Duer  on  Marine  Insurance,  p.  583. 

§  2571.     Representation,    what.     A   representation   jnay   be 

oral  or  written. 

Representations  in  marine  insurance:   Post,  §§  2676,  2677. 

Legislation  §  2571.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1388. 


679  CONCEALMENT  AND  REPRESENTATIONS.  §  2579 

§  2572.     When  made.     A  representation  may  be  made  at  the 
same  time  with  issuing  the  policy,  or  before  it. 
Warranties:  See  post,  §§  2603,  2604. 

Legislation  §  2572.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1389,  modified. 

§  2573,  How  interpreted.  The  language  of  a  representation 
is  to  be  interpreted  by  the  same  rules  as  the  language  of  con- 
tracts in  general. 

Interpretation  of  contracts:  See  ante,  §  1635. 

Legislation  §  2573.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1390. 

§  2574.  Representation  as  to  future.  A  representation  as  to 
the  future  is  to  be  deemed  a  promise,  unless  it  appears  that  it 
Avas  merely  a  statement  of  belief  or  expectation. 

Legislation  §  2574.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1391;  2  Duer  on  Marine  Insurance,  p.  664. 

§  2575.  How  may  affect  policy.  A  representation  cannot  be 
allowed  to  qualify  an  express  provision  in  a  contract  of  in- 
surance ;  but  it  may  qualify  an  implied  warranty.   . 

Legislation  §  2575.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1392;  2  Duer  on  Marine  Insurance,  p.  671. 

§  2576.  When  may  be  withdrawn.  A  representation  may 
be  altered  or  withdraAvn  before  the  insurance  is  effected,  but 
not  afterwards. 

Legislation  §  2576.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1393;  2  Duer  on  Marine  Insurance,  p.  679. 

§  2577.  Time  intended  by  representation.  The  completion 
of  the  contract  of  insurance  is  the  time  to  which  a  representa- 
tion must  be  presumed  to  refer. 

Legislation  §  2577.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1394;  2  Duer  on  Marine  Insurance,  p.  679. 

§  2578.  Representing"  information.  "When  a  person  insured 
has  no  personal  knowledge  of  a  fact,  he  may  nevertheless  re- 
peat information  which  he  has  upon  the  subject,  and  which  he 
believes  to  be  true,  with  the  explanation  that  he  does  so  on  the 
information  of  others,  or  he  may  submit  the  information,  in 
its  whole  extent,  to  the  insurer ;  and  in  neither  case  is  he 
responsible  for  its  truth,  unless  it  proceeds  from  an  agent  of 
the  insured,  whose  duty  it  is  to  give  the  intelligence. 

Legislation  §  2578.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1395;  2  Duer  on  Marine  Insurance,  pp.  703-705. 

§  2579.  Falsity.  A  representation  is  to  be  deemed  false 
when  the  facts  fail  to  correspond  with  its  assertions  or  stipula- 
tions. 


§  2586  CIVIL  CODE.  680 

Legislation  §  2579.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1396. 

§  2580.  Effect  of  falsity.  If  a  representation  is  false  in  a 
material  point,  whether  affirmative  or  promissory,  the  injured 
party  is  entitled  to  rescind  the  contract  from  the  time  when 
the  representation  becomes  false. 

Legislation  §  2580.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1397;  2  Duer  on  Marine  Insurance,  pp.  680,  749-769; 
5  Id.,  p.  587. 

§  2581.  Materiality.  The  materiality  of  a  representation  is 
determined  by  the  same  rule  as  the  materiality  of  a  conceal- 
ment. 

Materiality  of  representation,  how  determined:  See  ante,  §  2565. 
Legislation  §  2581.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1398. 

§  2582.  Application  of  provisions  of  this  article.  The  pro- 
visions of  this  article  apply  as  well  to  a  modification  of  a 
contract  of  insurance  as  to  its  original  formation. 

Legislation  §  2582.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1399. 

§  2583.     Right  to  rescind.     AVhenever  a  right  to  rescind  a 
contract  of  insurance  is  given  to  the  insurer  by  any  provision 
of  this  chapter,   such  right  may  be   exercised  at   any   time 
previous  to  the  commencement  of  an  action  on  the  contract. 
Legislation  §  2583.     Added  by  Code  Amdts.  1873-74,  p.  255. 

ARTICLE  VI. 

The   Policy. 

§   2586.  Policy,  what. 

§  2587.  What  must  be  specified  in  a  policy. 

§  2588.  Whose  interest  is  covered. 

§  2589.  Insurance  by  agent  or  trustee. 

§  2590.  Insurance  by  part-owner. 

§   2591.  General  terms. 

§  2592.  Successive  owners. 

§  2593.  Transfer  of  the  thing  insured. 

§  2594.  Open  and  valued  policies. 

§  2595.  Open  policy,  what. 

§  2596.  Valued  policy,  what. 

§  2597.  Eunning  policy,  what. 

§  2598.  Effect  of  receipt.  • 

§  2599.  Agreement  not  to  transfer. 

§  2586.  Policy,  what.  The  written  instrument,  in  which  a 
(X)iitraot  of  insurance  is  set  forth,  is  called  a  policy  of  insurance. 

Legislation  §  2586.     Enacted  March  21,  1872;  based  en  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1400. 


681  THE  POLICY   OF  INSURANCE.  §  2592 

§  2587.  What  must  be  specified  in  a  policy.  A  policy  of  in- 
surance must  specity : 

1.  The  parties  between  whom  the  contract  is  made ; 

2.  The  rate  of  premium ; 

3.  The  property  or  life  insured ; 

4.  The  interest  of  the  insured  in  property  insured,  if  he  is 
not  the  absolute  owner  thereof; 

5.  The  risks  insured  against ;  and, 

6.  The  period  during  which  the  insurance  is  to  continue. 

Legislation  §  2587.     Enaeted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1401. 

§  2588.  Whose  interest  is  covered.  AVhen  the  name  of  the 
person  intended  to  be  insured  is  speei^ed  in  a  policy,  it  can  be 
applied  only  to  his  OAvn  proper  interest. 

Stating  interest  of  insured:   See  ante,  §  2568. 
Insurable  interest,  generally:  See  ante,  §  2546. 

Legislation  §  2588.     Enaeted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1402. 

§  2589.  Insurance  by  agent  or  trustee.  When  an  insurance 
is  made  by  an  agent  or  trustee,  the  fact  that  his  principal  or 
beneficiary  is  the  person  really  insured  may  be  indicated  by 
describing  him  as  agent  or  trustee,  or  by  other  general  words 
in  the  policy. 

Legislation  §  2589.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1403. 

§  2590.  Insurance  by  part-owner.  To  render  an  insurance, 
effected  by  one  partner  or  part-owner,  applicable  to  the  in- 
terest of  his  copartners,  or  of  other  part-owniers,  it  is  necessary 
that  the  terms  of  the  policy  should  be  such  as  are  applicable  to 
the  joint  or  common  interest. 

Transfer  of  policy  from  one  partner  to  another:  See  ante,  §  2557. 
Transfer  by  co-owner:   See  ante,  §  2557. 

Legislation  §  2590.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1404;  8  Kent's  Com.,  p.  258. 

§2591.  General  terms.  When  the  description  of  the  in- 
sured in  a  policy  is  so  general  that  it  may  comprehend  any  per- 
son or  any  class  of  persons,  he  only  can  claim  the  benefit  of 
the  policy  who  can  show  that  it  was  intended  to  include  him. 

Legislation  §  2591.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
ISr.  Y.  Civ.  Code,  §  1405. 

§  2592.  Successive  owners.  A  policy  may  be  so  framed  that 
it  will  inure  to  the  benefit  of  whomsoever,  during  the  contin- 
uance of  the  risk,  may  become  the  owner  of  the  interest  insured. 

Legislation  §  2592.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1406. 


§  2599  CIVIL  CODE.  682 

§  2593.  Transfer  of  the  thing  insured.  The  mere  transfer 
of  a  thing  insured  does  not  transfer  the  policy,  but  suspends 
it  until  the  same  person  becomes  the  owner  of  both  the  policy 
and  the  thing  insured. 

Transfer  of  interest:  See,  generally,  on  alienation  of  interest,  ante, 
§§  2553  et  seq. 

Legislation  §  2593.  Enacted  March  21,'»1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1407. 

§2594.  Open  and  valued  policies.  A  policy  is  either  open 
or  valued. 

Legislation  §  2594.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1408. 

§  2595.  Open  policy,  what.  An  open  policy  is  one  in  which 
the  value  of  the  thing  insured  is  not  agreed  upon,  but  is  left 
to  be  ascertained  in  case  of  loss. 

Legislation  §  2595.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1409;  3  Kent's  Com.,  p.  272. 

§  2596.  Valued  policy,  what.  A  valued  policy  is  one  which 
expresses  on  its  face  an  agreement  that  the  thing  insured  shall 
be  valued  at  a  specified  sum. 

Valuation  in  marine  insurance:  See  post,  §  2736. 

Legislation  §  2596.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1410. 

§  2597.  Running'  policy,  what.  A  running  policy  is  one 
which  contemplates  successive  insurances,  and  which  provides 
that  the  object  of  the  policy  may  be  from  time  to  time  defined, 
especially  as  to  the  subjects  of  insurance,  by  additional  state- 
ments or  indorsements. 

Legislation  §  2597.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1411. 

§  2598.  Effect  of  receipt.  An  acknowledgment  in  a  policy 
of  the  receipt  of  premium  is  conclusive  evidence  of  its  payment, 
so  far  as  to  make  the  policy  binding,  notwithstanding  any 
stipulation  therein  that  it  shall  not  be  binding  until  the 
premium  is  actually  paid. 

Premiums,  in  general:  See  post,  §§  2616  et  seq. 

Legislation  §  2598.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1412. 

§  2599.  Agreement  not  to  transfer.  An  agreement  made 
before  a  loss,  not  to  transfer  the  claim  of  a  person  insured 
against  the  insurer,  after  the  loss  has  happened,  is  void. 

Legislation  §  2599.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1413. 


683  WARRANTIES  IN  INSURANCE.  §  2607 

AETICLE  VII. 

Warranties. 

§  2603.  Warranty,  express  or  implied. 

§  2604.  Form. 

§  2605.  Express  warranties  to   be  in  policy. 

§  2606.  Past,  present,  and  future  warranties. 

§  2607.  Warranty  as  to  past  or  present. 

§  2608.  Warranty  as  to  the  future. 

§  2609.  Performance  excused. 

§  2610.  What  acts  avoid  the  policy. 

§  2611.  Policy  may  provide  for  avoidance. 

§  2612.  Breach  without  fraud. 

§  2603.  Warranty,  express  or  implied.  A  warranty  is  either 
express  or  implied. 

Express  warranties  to  he  in  policy:  See  post,  §  2605. 
Implied  warranties  in  marine  insurance:  See  post,  §§  2681  et  seq. 
Legislation  §  2603.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1414. 

§  2604.     Form.     No  particular  form  of  words  is  necessary 

to  create  a  warranty. 

Legislation  §  2604.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1415. 

§  2605.  Express  warranties  to  be  in  policy.  Every  express 
warranty,  made  at  or  before  the  execution  of  a  policy,  must  be 
contained  in  the  policy  itself,  or  in  another  instrument  signed 
by  the  insured  and  referred  to  in  the  policy,  as  making  a  part 
of  it.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  255.] 

Representations:   See  ante,  §§  2571  et  seq. 

Legislation  §  2605.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1416),  and  then  read:  "Every  express  war- 
ranty, made  at  or  before  the  execution  of  a  policy,  must  be  contained 
in  the  policy  itself,  and  another  instrument,  whether  tipon  the  same 
paper  or  not,  cannot  be  referred  to  as  making  a  part  of  the  policy  for 
this  purpose,  even  by  agreement  of  the  parties." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  255. 

§  2606.  Past,  present,  and  future  warranties.  A  warranty 
may  relate  to  the  past,  the  present,  the  future,  or  to  any  or 
all  of  these. 

Legislation  §  2606.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1417. 

§  2607.     Warranty  as  to  past  or  present.     A  statement  in  a 

policy,  of  a  matter  relating  to  the  person  or  thing  insured,  or 

to  the  risk,  as  a  fact,  is  an  express  warranty  thereof. 

Legislation  §  2607.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1418. 


§  2612  CIVIL  CODE.  684 

§  2608.  Warranty  as  to  the  future.  A  statement  in  a  policy, 
which  imports  that  it  is  intended  to  do  or  not  to  do  a  thing 
which  materially  affects  the  risk,  is  a  warranty  that  such  act 
or  omission  shall  take  place. 

Legislation  §  2608.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1419;  5  Ducr  on  Marine  Insurance,  p.  587. 

§  2609.  Performance  excused.  When,  before  the  time  ar- 
rives for  the  performance  of  a  warranty  relating  to  the  future, 
a  loss  insured  against  happens,  or  performance  becomes  unlaw- 
ful at  the  place  of  the  contract,  or  impossible,  the  omission  to 
fulfill  the  warranty  does  not  avoid  the  policy.  [Amendment 
approved  1874 ;  Code  Amdts.  1873-74,  p.  255.1 

Rescinding  contract  of  insurance:  See  ante,  §  2583,  as  to  when  right 
to  rescind  may  be  exercised. 

Legislation  §  2609.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1420. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  255,  adding  "at  the  place 
of  the  contract." 

§  2610.  What  acts  avoid  the  policy.  The  violation  of  a  ma- 
terial warranty,  or  other  material  provision  of  a  policy,  on  the 
part  of  either  party  thereto,  entitles  the  other  to  rescind. 

Distinguishes  between  material  and  immaterial  warranties.  Hereto- 
fore all  warranties  were  deemed  material.  The  insurer  can,  how- 
ever, protect  himself,  under  §  2611,  post,  by  declaring  in  the  policy  that 
violation  of  an  immaterial  warranty  will  avoid  the  contract. 

Legislation  §  2610.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1421. 

§  2611.  Policy  may  provide  for  avoidance.  A  policy  may 
declare  that  a  violation  of  specified  provisions  thereof  shall 
avoid  it,  otherwise  the  breach  of  an  immaterial  provision  does 
not  avoid  the  policy. 

Legislation  §  2611.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1422. 

§  2612.  Breach  without  fraud.  A  breach  of  warranty, 
without  fraud,  merely  exonerates  an  insurer  from  the  time  that 
it  occurs,  or  where  it  is  broken  in  its  inception  prevents  the 
policy  from  attaching  to  the  risk. 

Breach  of  warranty  without  fraud,  return  of  premiiun:  See  post, 
§  2619. 

Legislation  §  2612.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N,  Y.  Civ.  Code,  §  1423;  2  Duer.on  Marine  Insurance,  p.  435. 


685  PREMIUM  ON  POLICIES.  ^  §  2618 

AETICLE  VIII. 

Premium. 

§  2616.  When  premium  is  earned. 

§  2617.  Eeturn  of  premium. 

§  2618.  When  not  allowed. 

§  2619.  Eeturn  for  fraud. 

§  2620.  Over-insurance  by  several  insurers. 

§  2621.  Contribution. 

§  2622.  Proportionate   contribution. 

§  2616.  When  premmm  is  earned.  An  insurer  is  entitled  to 
payment  of  the  premium  as  soon  as  the  thing  insured  is  ex- 
posed to  the  peril  insured  against. 

Receipt  in  policy,  how  far  conclusive  of  payment:  See  ante,  §  2598. 
Legislation  §  2616.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1424. 

§  2617.  Return  of  premium.  A  person  insured  is  entitled  to 
a  return  of  premium,  as  follows : 

One.  To  the  whole  premium,  if  no  part  of  his  interest  in  the 
thing  insured  be  exposed  to  any  of  the  perils  insured  against. 

Two.  Where  the  insurance  is  made  for  a  definite  period  of 
time,  and  the  insured  surrenders  his  policy,  to  such  proportion 
of  the  premium  as  corresponds  with  the  unexpired  time,  after 
deducting  from  the  Avhole  premium  any  claim  for  loss  or  dam- 
age under  the  policy  Avhich  has  previously  accrued.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  256.] 
Return  for  fraud:  See  post,  §  2619. 

Legislation  §  2617.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  jST.  Y.  Civ.  Code,  §  1425),  and  then  read:  "A  person  insured  is 
entitled  to  a  return  of  premium  paid,  or  a  ratable  proportion  thereof,  if 
no  part  of  his  interest  in  the  thing  insured  is  exposed  to  any  of  the 
perils  insured  against;  or,  where  the  insurance  is  made  for  a  definite 
period  of  time,  if  it  is  not  exposed  to  such  peril  for  the  whole  of  that 
time." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  256. 

§  2618.  When  not  allowed.  If  a  peril  insured  against  has 
existed,  and  the  insurer  has  been  liable  for  any  period,  however 
short,  the  insured  is  not  entitled  to  return  of  premiums,  so  far 
as  that  particular  risk  is  concerned.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  256.] 

Legislation  §  2618.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1427),  and  then  read:  "If  a  peril  insured 
against  has  existed,  and  the  insurer  has  been  liable  for  any  period, 
however  short,  the  insured  is  not  entitled  to  a  return  of  premium,  so 
far  as  that  particular  risk  is  concerned,  unless  the  insurance  was  for  a 
definite  period  of  time,  in  which  case  he  is  entitled  to  a  proportionate 
return  under  the  preceding  section." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  256. 


§  2626  CIVIL  CODE.  686 

§  2619.  Return  for  fraud.  A  person  insured  is  entitled  to  a 
return  of  the  premium  when  the  contract  is  voidable,  on  ac- 
count of  the  fraud  or  misrepresentation  of  the  insurer,  or  on 
account  of  facts,  of  the  existence  of  which  the  insured  was 
ignorant  without  his  fault;  or  when,  by  any  default  of  the 
insured  other  than  actual  fraud,  the  insurer  never  incurred  any 
liability  under  the  policy. 

Legislation  §  2619.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1425. 

§  2620.  Over-insurance  by  several  insurers.  In  case  of  an 
over-insurance  by  several  insurers,  the  insured  is  entitled  to 
a  ratable  return  of  the  premium,  proportioned  to  the  amount 
by  which  the  aggregate  sum  insured  in  all  the  policies  exceeds 
the  insurable  value  of  the  thing  at  risk.  '^ 

Double  insurance,  defined:  See  post,  §  2641. 

Legislation  §  2620.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1428. 

§  2621.  Contribution.  When  an  over-insurance  is  effected 
by  simultaneous  policies,  the  insurers  contribute  to  the 
premium  to  be  returned  in  proportion  to  the  amount  insured 
by  their  respective  policies. 

Contribution  in  cases  of  double  insurance:  See  post,  §  2642. 
Legislation  §  2621.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1429. 

§  2622.  Proportionate  contribution.  AVhen  an  over-insur- 
ance is  effected  by  successive  policies,  those  only  contribute 
to  a  return  of  the  premium  who  are  exonerated  by  prior  in- 
surance from  the  liability  assumed  by  them,  and  in  proportion 
as  the  sum  for  which  the  premium  was  paid  exceeds  the  amount 
for  w^hich,  on  account  of  prior  insurance,  they  could  be  made 
liable. 

Legislation  §  2622.     Eu^icted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1430. 

AETICLE  IX. 

Loss. 

§  2626.  Perils,  remote  and  proximate. 

§  2627.  Loss  incurred  in  rescue  from  peril. 

§  2628.  Excepted  perils. 

§  2629.  Negligence   and   fraud. 

§  2626.  Perils,  remote  and  proximate.  An  insurer  is  liable 
for  a  loss  of  which  a  peril  insured  against  was  the  proximate 
cause ;  although  a  peril  not  contemplated  by  the  contract  may 
have  been  a  remote  cause  of  the  loss ;  but  he  is  not  liable  for  a 
loss  of  which  the  peril  insured  against  was  only  a  remote 
cause. 


687  LOSS  AND  NOTICE  OF.  §  2633 

Negligence  of  Insured:   See  post,  §  2629. 
Perils  of  the  sea,  what  included:  See  ante,  §  2199. 
Legislation  §  2626.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1431. 

§  2627.  Loss  incurred  in  rescue  from  peril.  An  insurer  is 
liable  where  the  thing  insured  is  rescued  from  a  peril  insured 
against,  that  would  otherwise  have  caused  a  loss,  if  in  the 
course  of  such  rescue  the  thing  is  exposed  to  a  peril  not  insured 
against,  which  permanently  deprives  the  insured  of  its  posses- 
sion, in  whole  or  in  part;  or  where  a  loss  is  caused  by  efforts 
to  rescue  the  thing  insured  from  a  peril  insured  against. 

Legislation  §  2627.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1432. 

§  2628.  Excepted  perils.  Where  a  peril  is  specially  ex- 
cepted in  a  contract  of  insurance,  a  loss,  which  would  not  have 
occurred  but  for  such  peril,  is  thereby  excepted ;  although  the 
immediate  cause  of  the  loss  was  a  peril  which  was  not  ex- 
cepted. 

Legislation  §  2628.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1433;  1  Duer  on  Marine  Insurance,  p.  371. 

§  2629.  Negligence  and  fraud.  An  insurer  is  not  liable  for 
a  loss  caused  by  the  willful  act  of  the  insured;  but  he  is  not 
exonerated  by  the  negligence  of  the  insured,  or  of  his  agents 
or  others.  [Amendment  approved  1874 ;  Code  Amdts.  1873-74, 
p.  256.] 

Legislation  §  2629.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1434),  and  then  read:  "An  insurer  is  not 
liable  for  a  loss  caused  by  the  willful  act  of  the  insured;  but  he  is 
not  exonerated  by  the  negligence  of  the  insured,  nor  by  fraud  or  negli- 
gence on  the  part  of  his  agents  or  others." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  256. 

ARTICLE  X. 

Notice  of  Loss. 

§  2633.     Notice  of  loss. 

§  2633a.  Time  for  giving  notice  of  accident,  etc. 

§  2634.     Preliminary  proofs. 

§  2635.     Waiver  of  defects  in  notice,  etc. 

§  2636.     Waiver  of  delay. 

§  2637.     Certificate,  when  dispensed  with. 

§  2633.  Notice  of  loss.  In  case  of  loss  upon  an  insurance 
against  fire,  an  insurer  is  exonerated,  if  notice  thereof  be  not 
given  to  him  by  some  person  insured,  or  entitled  to  the  benefit 
of  the  insurance,  without  unnecessary  delay.  [Amendment  ap- 
proved 1874;  Code  Amdts.  1873-74,  p.  256.] 

Legislation  §  2633.     1.    Enacted    March    21,    1872    (based    on    Field's 

Draft,   N.  Y.   Civ.   Code,  §  1435),  and  then  read:   "In   case  of  loss,  an 


§  2637  CIVIL  CODE.  688 

insurer  is  exonerated,  if  notice  thereof  is  not  given  to  bim  by  some 
person  insured,  or  entitled  to  the  benefit  of  an  insurance,  without  un- 
necessary delay." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  256. 

§  2633a.  Time  for  giving  notice  of  accident,  etc.  No  con- 
ditions, stipulations  or  agreements  contained  in  any  applica-' 
tion  for  insurance  in  any  foreign  or  domestic  casualty  or  acci- 
dent insurance  company,  or  contained  in  any  policy  issued  by 
any  such  company,  or  in  any  way  made  by  any  such  company, 
limiting  the  time  within  which  notice  of  the  accident  or  in- 
jury, or  death,  shall  be  given  to  such  company  to  a  period  of 
less  than  twenty  days  after  the  happening  of  the  accident,  or 
injury,  or  death,  shall  be  valid.  Said  notice  may  be  given  to 
the  company  insuring,  at  any  time  within  twenty  days  after 
the  happening  of  the  accident,  or  injury,  or  death  and  shall 
be  valid  and  binding  on  the  company. 

Legislation  §  2633a.     Added  by  Stats.  1913,  p.  677. 

§  2634.  Preliminary  proofs.  When  preliminary  proof  of 
loss  is  required  by  a  policy,  the  insured  is  not  bound  to  give 
such  proof  as  would  be  necessary  in  a  court  of  justice ;  but  it 
is  sufficient  for  him  to  give  the  best  evidence  which  he  has  in 
his  power  at  the  time. 

Legislation  §  2634.     Enacted  March  21,  1872;  based  on  Field's  Draft,. 

N.  Y.  Civ.  Code,  §  1436. 

§  2635.  Waiver  of  defects  in  notice,  etc.  All  defects  in 
a  notice  of  loss,  or  in  i^reliminary  proof  thereof,  which  the  in- 
sured might  remedy,  and  which  the  insurer  omits  to  specify 
to  him,  without  unnecessary  delay,  as  grounds  of  objection,  are 
waived. 

Legislation  §  2635.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1437. 

§  2636.  Waiver  of  delay.  Delay  in  the  presentation  to  an 
insurer  of  notice  or  proof  of  loss  is  waived,  if  caused  by  any 
act  of  his,  or  if  he  omits  to  make  objection  promptly  and 
specifically  upon  that  ground. 

Legislation  §  2636.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1438. 

§  2637.  Certificate,  when  dispensed  vi^ith.  If  a  policy  re- 
quires, by  way  of  preliminary  proof  of  loss,  the  certificate  or 
testimony  of  a  person  other  than  the  insured,  it  is  sufficient  for 
the  insured  to  use  reasonable  diligence  to  procure  it,  and  in  case 
of  the  refusal  of  such  person  to  give  it,  then  to  furnish  reason- 
able evidence  to  the  insurer  that  such  refusal  was  not  induced 
by  any  just  grounds  of  disbelief  in  the  facts  necessary  to  be 
certified. 


689  DOUBLE  INSURANCE.  §  2642 

Presenting  false  proofs  upon  policies:  Pen.  Code,  §  549. 
Legislation  §  2637.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  1439. 

ARTICLE  XI. 

Double  Insurance. 

§  2641.     Double  insurance. 

§  2642.     Contribution  in  case  of  double  insurance. 

§  2641.  Double  insurance.  A  double  insurance  exists  where 
the  same  persOn  is  insured,  by  several  insurers  separately  in 
respect  to  the  same  subject  and  interest. 

Legislation  §  2641.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1440. 

§  2642.  Contribution  in  case  of  double  insurance.  In  case 
of  double  insurance,  the  several  insurers  are  liable  to  pay  losses 
thereon  as  follows : 

One.  In  fire  insurance,  each  insurer  must  contribute  ratably 
towards  the  loss,  without  regard  to  the  dates  of  the  several 
policies. 

Two.  In  marine  insurance,  the  liability  of  the  several  in- 
surers for  a  total  loss,  whether  actual  or  constructive,  where 
the  policies  are  not  simultaneous,  is  in  the  order  of  the  dates 
of  the  several  policies;  no  liability  attaching  to  a  second  or 
other  subsequent  policy,  except  as  to  the  excess  of  the  loss  over 
the  amount  of  all  previous  policies  on  the  same  interest.  If 
two  or  more  policies  bear  date  upon  the  same  day,  they  are 
deemed  to  be  simultaneous,  and  the  liability  of  insurers  on 
simultaneous  policies,  is  to  contribute  ratably  with  each  other. 
The  insolvency  of  any  of  the  insurers  does  not  affect  the  pro- 
portionate lialDility  of  the  other  insurers.  The  liability  of  all 
insurers  on  the  same  marine  interest  for  a  partial  or  average 
loss,  is  to  contribute  ratably.  [Amendment  approved  1874; 
Code  Amdts.  1873-74,  p.  257.] 

Return  of  premium  by  successive  insurers:  See  ante,  §  2622. 

Insurers  in  separate  policies  may  be  joined:  See  Code  Civ.  Proc, 
§  383. 

Legislation  §  2642.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1441;  Angell  on  Insurance,  22;  3  Kent's  Com., 
p.  280),  and  then  read:  "In  case  of  double  insurance,  the  insured  may 
claim  payment  of  a  loss  from  any  one  of  the  insurers,  who,  on  paying 
it,  may  require  the  others  to  contribute  ratably  thereto." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  257. 
Civ.  Code — 44 


§  2655  CIVIL  CODE.  690 

AETICLE  XII. 
Reinsurance. 

§  2646.  Reinsurance,  what. 

§  2647.  Disclosures  required. 

§  2648.  Eeinsurance  presumed  to  be  against  liability. 

§  2649.  Original  insured  has  no  interest. 

§  2646.     Reinsurance,  what.     A  contract  of  reinsurance  is 
one  by  which  an  insurer  procures  a  third  person  to  insure  him 
against  loss  or  liability  by  reason  of  such  original  insurance. 
Legislation  §  2646.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1442. 

§  2647.  Disclosures  required.  Where  an  insurer  obtains  re- 
insurance, he  must  communicate  all  the  representations  of  the 
original  insured,  and  also  all  the  knowledge  and  information 
he  possesses,  Avhether  previously  or  subsequently  acquired, 
which  are  material  to  the  risk. 

Legislation  §  2647.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1443;  2  Duer  on  Marine  Insurance,  p.  429. 

§2648.     Reinsurance  presumed  to  be  ag-ainst  liability.     A 

reinsurance  is  presumed  to  be  a  contract  of  indemnity  against 
liability,  and  not  merely  against  damage. 

Legislation  §  2648.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1444;  Angell  on  Insurance,  p.  138. 

§  2649.  Original  insured  has  no  interest.  The  original  in- 
sured has  no  interest  in  a  contract  of  reinsurance. 

Legislation  §  2649.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1445. 

CHAPTER  II. 

Marine  Insurance. 

Article  I.  Definition   of  Marine  Insurance.     §  2655. 

II.  Insurable   Interest.     §§  2659-2665. 

TIL  Concealment.     §§  2669-2672. 

IV.  Representations.     §§  2676,  2677. 

V.  Implied  Warranties.     §§  2681-2688. 

VI.  The  Voyage,  and  Deviation.     §§  2692-2697. 

VII.  Loss.     §'§  2701-2712. 

VIIL  Abandonment.     §§  2716-2732. 

IX.  Measure  of  Indemnity.     §§  2736-2746. 

ARTICLE  I. 

Definition  of  Marine  Insurance. 
I  2655.     Marine  insurance,  what. 

§  2655.  Marine  insurance,  what.  Marine  insurance  is  an 
insurance  against  risks  connected  with  navigation,  to  which 


69l  MARINE  INSURANCE.       INSURABLE   INTEREST.  §  "^66^ 

a  ship,  cargo,  freightage,  profits,  or  other  insurable  interest  in 
movable  property,  may  be  exposed  during  a  certain  voyage  or 
a  fixed  period  of  time. 

Insurable  interest:  See  ante,  §§  2546-2558. 

Legislation  §  2655.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1446;  3  Kent's  Com.,  p.  203. 

ARTICLE  II. 

Insurable  Interest. 

§  2659.  Insurable  interest  in  a  ship. 

§  2660.  Interest  reduced  by  bottomry. 

§  2661.  Freightage,  what. 

§  2662.  Expected  freightage. 

§  2663.  Interest   in  expected  freightage,  what. 

§  2664.  Insurable  interest  in  profits. 

§  2665.  Insurable  interest  of  charterer. 

§  2659.  Insurable  interest  in  a  ship.  The  owner  of  a  ship 
has  in  all  cases  an  insurable  interest  in  it,  even  when  it  has 
been  chartered  by  one  who  covenants  to  pay  him  its  value  in 
case  of  loss. 

Legislation  §  2659.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1447. 

§  2660.  Interest  reduced  by  bottomry.  The  insurable  in- 
terest of  the  owner  of  a  ship  hypothecated  by  bottomry  is  only 
the  excess  of  its  value  over  the  amount  secured  by  bottomry. 

Insurable  interest,  generally:  See  ante,  §  2546. 
Bottomry,  defined:  Post,  §  3017. 

Legislation  §  2660.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1448. 

§  2661.  Freightage,  what.  Freightage,  in  the  sense  of  a 
policy  of  marine  insurance,  signifies  all  the  benefit  derived  by 
the  owner,  either  from  the  chartering  of  the  ship  or  its  employ- 
ment for  the  carriage  of  his  own  goods  or  those  of  others. 

Marine  insurance,  what  is:  See  ante,  §  2655. 
Freightage  defined:  See  ante,  §  2110. 

Legislation  §  2661.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1449. 

§  2662.  Expected  freightage.  The  owner  of  a  ship  has  an 
insurable  interest  in  expected  freightage  which  he  would  have 
certainly  earned  but  for  the  intervention  of  a  peril  insured 
against. 

Legislation  §  2662.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1450. 

§  2663.  Interest  in  expected  freightage,  what.  The  interest 
mentioned  in  the  last  section  exists,  in  the  case  of  a  charter- 
party,  when  the  ship  has  broken  ground  on  the  chartered  voy- 


§  2671  cmL  CODE.  692 

age,  and  if  a  price  is  to  be  paid  for  the  carriage  of  goods  when 
they  are  actually  on  board,  or  there  is  some  contract  for  putting 
them  on  board,  and  both  ship  and  goods  are  ready  for  the 
specified  voyage. 

Legislation  §  2663.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1451. 

§  2664.  Insurable  interest  in  profits.  One  who  has  an  inter- 
est in  the  thing  from  which  profits  are  expected  to  proceed, 
lias  an  insurable  interest  in  the  profits. 

Legislation  §  2664.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1452. 

§  2665.     Insurable  interest  of  charterer.     The  charterer  of 

a  ship  has  an  insurable  interest  in  it,  to  the  extent  that  he  is 
liable  to  be  damnified  by  its  loss. 

Legislation  §  2665.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1453. 

ARTICLE  ni. 

Concealment. 

§  2669.  Information  must  be   communicated. 

§  2670.  Material  information. 

§  2671.  Presumption  of  knowledge  of  loss. 

§  2672.  Concealments  which  only  affect  the  risk  in  question. 

§  2669.  Information  must  be  communicated.  In  marine  in- 
surance each  party  is  bound  to  communicate,  in  addition  to 
what  is  required  by  section  two  thousand  five  hundred  and 
sixty-three,  all  the  information  which  he  possesses,  material  to 
the  risk,  except  such  as  is  mentioned  in  section  two  thousand 
five  hundred  and  sixty-four,  and  to  state  the  exact  and  whole 
truth  in  relation  to  all  matters  that  he  represents,  or  upon  in- 
quiry assumes  to  disclose. 

Concealment  in  insurance,  generally:  See  ante,  §§  2561  et  seq. 
Concealment  in  marine  insurance:  Post,  §  2672. 

Legislation  §  2669.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1454;  2  Duer  on  Marine  Insurance,  pp.  3S1,  3SS; 
Angell  on  Insurance,  p.  200. 

§  2670.  Material  information.  In  marine  insurance,  in- 
formation of  the  belief  or  expectation  of  a  third  person,  in 
reference  to  a  material  fact,  is  material. 

Representation  of  expectation  avoids  contract  when:  Post,  §  2677. 
Legislation  §  2670.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1455;  2  Duer  on  Marine  Insurance,  p.  3SS. 

§2671.  Presumption  of  knowledge  of  loss.  A  person  in- 
sured by  a  contract  of  marine  insurance  is  presumed  to  have 
had  knowledge,  at  the  time  of  insuring,  of  a  prior  loss,  if  the 


693  MARINE  INSURANCE.      REPRESENTATIONS.  §  2677 

information  might  possibly  have  reached  him  in  the  usual 

mode  of  transmission,  and  at  the  usual  rate  of  communication. 

Legislation  §  2671.     Enacted  Mareh  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1456. 

§  2672.     Concealments  which  only  affect  the  risk  in  question. 

A  concealment  in  a  marine  insurance,  in  respect  to  any  of  the 
following  matters,  does  not  vitiate  the  entire  contract,  but 
merely  exonerates  the  insurer  from  a  loss  resulting  from  the 
risk  concealed : 

1.  The  national  character  of  the  insured; 

2.  The  liability  of  the  thing  insured  to  capture  and  deten- 
tion; 

3.  The  liability  to  seizure  from  breach  of  foreign  laws  of 
trade ; 

4.  The  want  of  necessary  documents ;  and, 

5.  The  use  of  false  and  simulated  papers. 

Legislation  §  2672.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
K  Y.  Civ.  Code,  §  1457. 

AETICLE  IV. 

Representations. 

§  2676.     Effect  of  intentional  falsity. 
§  2677.     Representation  of  expectation. 

§  2676.     Effect  of  intentional  falsity.     If  a  representation, 
by  a  person  insured  by   a  contract   of  marine   insurance,   is 
intentionally  false  in  any  respect,  Avhether  material  or  imma- 
terial, the  insurer  may  rescind  the  entire  contract. 
Representations,  generally:  See  ante,  §§  2571  et  seq. 
Legislation  §  2676.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1458. 

§  2677.  Representation  of  expectation.  The  eventual  falsity 
of  a  representation  as  to  expectation  does  not,  in  the  absence 
of  fraud,  avoid  a  contract  of  insurance. 

Expectation  of  a  third  person,  material:  Ante,  §  2670. 
Legislation  §  2677.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1459. 

ARTICLE  V. 
Implied  Warranties. 
§   2681.     Warranty  of   seaworthiness. 
§  2682.     Seaworthiness,  what. 
§  2683.     At  what  time  seaworthiness  must  exist. 
§  2684.     What  things  are  required  to  constitute  seaworthiness. 
§  268'5.     Different    degrees   of   seaworthiness   at    different   stages   of   the 

voyage. 
§  2686.     Unseaworthiness  during  the  voyage. 
§  2687.     Seaworthiness  for  purposes  of  insurance  on  cargo. 
§  2688.     Neutral  papers. 


§  2684  CIVIL  CODE.  694 

§  2681.  Warranty  of  seaworthiness.  In  every  marine  insur- 
ance upon  a  ship  or  freight,  or  freightage,  or  upon  anything 
which  is  the  subject  of  marine  insurance,  a  warranty  is  implied 
that  the  ship  is  seaworthy.  [Amendment  approved  1874  ;  Code 
Amdts.  1873-74,  p.  257.] 

Seaworthiness,  defined:  See  post,  §  2682. 

Legislation  §  2681.  1.  Enacted  Maroli  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1460),  and  then  read:  "In  every  marine  in- 
surance upon  ship  or  freightage,  or  upon  anything  belonging  to  the 
ship-owner,  unless  made  for  a  specified  length  of  time,  a  warranty  is 
implied  that  the  ship  shall  be  seaworthy." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  2.57. 

§  2682.  Seaworthiness,  what.  A  ship  is  seaworthy,  when 
reasonably  fit  to  perform  the  services,  and  to  encounter  the 
ordinary  perils  of  the  voyage,  contemplated  by  the  parties  to 
the  policy. 

Seaworthiness,  warranty  of:   Post,  §§  2683-2685. 

Legislation  §  2682.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1461. 

§  2683.  At  what  time  seaworthiness  must  exist.  An  implied 
warranty  of  seaworthiness  is  complied  with  if  the  ship  be  sea- 
worthy at  the  time  of  the  commencement  of  the  risk,  except 
in  the  following  cases : 

One.  When  the  insurance  is  made  for  a  specified  length  of 
time,  the  implied  warranty  is  not  complied  with,  unless  the  ship 
be  seaworthy  at  the  commencement  of  every  voyage  she  may 
undertake  during  that  time ;  and, 

Tavo.  When  the  insurance  is  upon  the  cargo,  which,  by  the 
terms  of  the  policy,  or  the  description  of  the  voyage,  or  the 
established  custom  of  the  trade,  is  to  be  transshipped  at  an  in- 
termediate port,  the  implied  warranty  is  not  complied  with, 
unless  each  vessel  upon  which  the  cargo  is  shipped,  or  trans- 
shipped, be  seaworthy  at  the  commencement  of  its  particular 
voyage.  ["Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  257.] 

Legislation  §  2683.     1.    Enacted    March    21,    1872    (based    on   Field's 

Draft,  N.  Y.'Civ.  Code,  §  1462),  and  then  read:  "An  implied  warranty 

of  seaworthiness  is  complied  with  if  the  ship  is  seaworthy  at  the  time 

of  the  commencement  of  the  risk." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  257. 

§2684,  What  things  are  required  to  constitute  seaworthi- 
ness. A  Avarranty  of  seaworthiness  extends  not  only  to  the 
condition  of  the  structure  of  the  ship  itself,  but  requires  that 
it  be  properly  laden,  and  provided  with  a  competent  master, 
a  sufficient  number  of  competent  officers  and  seamen,  and  the 
requisite  appurtenances  and  equipments,  such  as  ballast,  cables, 


695  IMPLIED    WARRANTIES.       VOYAGE,    DEVIATION.  §  2692 

and  anchors,  cordage  and  sails,  food,  water,  fuel,  and  lights, 
and  other  necessary  or  proper  stores  and  implements  for  the 
voyage. 

Legislation  §  2684.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1463. 

§  2685.     Different    degrees    of    seaworthiness    at    different 

stag'es  of  the  voyage.  Where  different  portions  of  the  voyage 
contemplated  by  a  policy  differ  in  respect  to  the  things 
requisite  to  make  the  ship  seaworthy  therefor,  a  Avarranty  of 
seaworthiness  is  complied  with  if,  at  the  commencement  of  each 
portion,  the  ship  is  seaworthy  with  reference  to  that  portion. 

Legislation  §  2685.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1464. 

§  2686.  Unseaworthiness  during  the  voyage.  When  a  ship 
becomes  unseaworthy  during  the  voyage  to  which  an  insurance 
relates,  an  unreasonable  delay  in  repairing  the  defect  exon- 
erates the  insurer  from  liability  from  any  loss  arising  there- 
from. 

Legislation  §  2686.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1465. 

§  2687.     Seaworthiness  for  purposes  of  insurance  on  cargo. 

A  ship  which  is  seaworthy  for  the  purpose  of  an  insurance  upon 
the  ship  may,  nevertheless,  by  reason  of  being  unfitted  to  re- 
ceive the  cargo,  be  unseaworthy  for  the  purpose  of  insurance 
upon  the  cargo. 

Legislation  §  2687.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1466,-  1  Phillips  on  Insurance,  §  723. 

§  2688.  Neutral  papers.  Where  the  nationality  or  neutral- 
ity of  a  ship  or  cargo  is  expressly  warranted,  it  is  implied  that 
the  ship  Avill  carry  the  requisite  documents  to  show  such  nation- 
ality or  neutrality,  and  that  it  will  not  carry  any  documents 
which  cast  reasonable  suspicion  thereon. 

Legislation  §  2688.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1467. 

ARTICLE  VI. 

The  Voyage,  and  Deviation. 

§  2692.  Voyage  insured,  how  determined. 

§  2693.  Course  of  sailing,  how  determined. 

§  2694.  Deviation,  what. 

§  269.'5.  When  proper. 

§  2696.  When  improper. 

§  2697.  Deviation  exonerates  the  insurer. 

§  2692.  Voyage  insured,  how  determined.  When  the  voy- 
age contemplated  by  a  policy  is  described  by  the  places  of 
beginning  and  ending,  the  voyage  insured  is  one  which  con- 


§  2697  CIVIL  CODE.  696 

forms  to  the  course  of  sailing  fixed  by  mercantile  usage  be- 
tween those  places. 

Legislation  §  2692.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1468. 

§  2693.  Course  of  sailing,  how  determined.  If  the  course 
of  sailing  is  not  fixed  by  mercantile  usage,  the  voyage  insured 
by  a  polic.y  is  the  way  between  the  places  specified  which,  to 
a  master  of  ordinary  skill  and  discretion,  Avould  seem  the  most 
natural,  direct,  and  advantageous. 

Legislation  §  2693.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1469. 

§  2694.  Deviation,  what.  Deviation  is  a  departure  from  the 
course  of  the  voyage  insured,  mentioned  in  the  last  two  sec- 
tions, or  an  unreasonable  delay  in  pursuing  the  voyage,  or  the 
commencement  of  an  entirely  different  voyage. 

Legislation  §  2694.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1470. 

§  2695.     When  proper.     A  deviation  is  proper : 

1.  When  caused  by  circumstances  over  which  neither  the 
master  nor  the  owner  of  the  ship  has  any  control ; 

2.  When  necessary  to  comply  with  a  warranty,  or  to  avoid  a 
peril,  whether  insured  against  or  not ; 

S.  When  made  in  good  faith,  and  upon  reasonable  grounds 
of  belief  in  its  necessity  to  avoid  a  peril ;  or, 

4.  When  made  in  good  faith,  for  the  purpose  of  saving 
human  life,  or  relieving  another  vessel  in  distress. 

Legislation  §  2695.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1471;  3  Kent's  Com.,  p.  323. 

§  2696.     When  improper.     Every  deviation  not  specified  in 

the  last  section  is  improper. 

Legislation  §  2696.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1472. 

§  2697.     Deviation  exonerates   the  insurer.     An  insurer  is 

not  liable  for  any  loss  happening  to  a  thing  insured  subse- 
quently to  an  improper  deviation. 

Legislation  §  2697.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1473. 


697  LOSS  IN  MARINE  INSURANCE.  §  2705 

AETICLE  VII. 

Loss. 

§  2701.  Total  and  partial' loss. 

§  2702.  Partial  loss. 

§  2703.  Actual  and  constructive  total  loss. 

§  2704.  Actual  total  loss,  what. 

§  2705.  Constructive  total  loss. 

§  2706.  Presumed  actual  loss. 

§  2707.  Insurance  on  cargo,  etc.,  when  voyage  is  broken  up. 

§  2708.  Cost  of  reshipnient,  etc. 

§  2709.  When  insured  is  entitled  to  payment. 

§  2710.  Abandonment  of  goods  on  insurance  of  profits.     [Repealed.] 

§  2711.  Average  loss. 

§  2712.  Insurance  against  total  loss. 

§  2701.     Total  and  partial  loss.     A  loss  may  be  either  total 
or  partial. 

Total  loss,  either  actual  or  constructive:  See  post,  §  2703. 
Actual  total  loss,  defined:  See  post,  §  2704. 
Constructive  total  loss,  defined:  See  post,  §  2705. 

Legislation  §  2701.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1474. 

§  2702.     Partial  loss.    Every  loss  which  is  not  total  is  partial. 

Liability  on  partial  loss:  Post,  §  2737. 
One  third  new  for  old:  Post,  §  2746. 

Legislation  §  2702.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1475;  Bouvier's  Law  Diet.,  tit.  "Loss." 

§  2703.     Actual  and  constructive  total  loss.     A  total  loss 
may  be  either  actual  or  constructive. 

Actual  total  loss,  defined:  Post,  §  2704. 
Actual  loss,  when  presumed:  Post,  §  2706. 
Constructive  loss,  defined:   Post,  §  2705. 

Legislation  §  2703.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1476. 

§  2704.     Actual  total  loss,  what.     An  actual  total  loss   is 
caused  by : 

1.  A  total  destruction  of  the  thing  insured ; 

2.  The  loss  of  the  thing  l)y  sinking,  or  by  being  broken  up  ; 

3.  Any  damage  to  the  thing  which  renders  it  valueless  to  the 
owner  for  the  purposes  for  which  he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the  owner  of  the 

possession,  at  the  port  of  destination,  of  the  thing  insured. 

Legislation  §  2704.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1477. 

§  2705.     Constructive  total  loss.     A  constructive  total  loss 
is  one  which  gives  to  a  person  insured  a  right  to  abandon, 
under  section  two  thousand  seven  hundred  and  seventeen. 
Abandonment  for  constructive  total  loss:  Post,  §§  2716  et  seq. 


§  2711  CIVIL  CODE.  698 

Legislation  §  2705.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1478. 

§  2706.  Presumed  actual  loss.  An  actual  loss  may  be  pre- 
sumed from  the  continued  absence  of  a  ship  without  being 
heard  of;  and  the  length  of  time  which  is  sufficient  to  raise 
this  presumption  depends  on  the  circumstances  of  the  case. 

Legislation  §  2706.     Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1479. 

§  2707.     Insurance  on  cargo,  etc.,  when  voyage  is  broken  up. 

When  a  ship  is  prevented,  at  an  intermediate  port,  from  com- 
pleting the  voyage,  by  the  perils  insured  against,  the  master 
must  make  every  exertion  to  procure,  in  the  same  or  a  con- 
tiguous port,  another  ship,  for  the  purpose  of  conveying  the 
cargo  to  its  destination ;  and  the  liability  of  a  marine  insurer 
thereon  continues  after  thev  are  thus  reshipped.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  258.] 

Constructive  total  loss  of  cargo:  See  post,  §§  2716  et  seq. 
Legislation  §  2707.     1.    Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1480. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  258,  adding  "by  the  perils 
insured  against." 

§  2708.  Cost  of  reshipment,  etc.  In  addition  to  the  liability 
mentioned  in  tlie  last  section,  a  marine  insurer  is  bound  for 
damages,  expenses  of  discharging,  storage,  reshipment,  extra 
freightage,  and  -all  other  expenses  incurred  in  saving  cargo 
reshipped  pursuant  to  the  last  section,  up  to  the  amount  in 
sured. 

Legislation  §  2708.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1481. 

§  2709.  When  insured  is  entitled  to  payment.  Upon  an 
actual  total  loss,  a  person  insured  is  entitled  to  payment  with- 
out notice  of  abandonment. 

Legislation  §  2709.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1482. 

§  2710.     Abandonment   of  goods   on   insurance   of  profits. 

[Repealed  1874;  Code  Amdts.  1873-74,  p.  258.] 
Legislation  §  2710.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  258. 

§  2711.  Average  loss.  Where  it  has  been  agreed  that  au 
insurance  upon  a  particular  thing,  or  class  of  things,  shall  be 
free  from  particular  average,  a  marine  insurer  is  not  liable  for 
any  particular  average  loss  not  depriving  the  insured  of  the 
possession,  at  the  port  of  destination,  of  the  whole  of  such 
thing,  or  class  of  things,  even  though  it  become  entirely  worth- 


699  ABANDONMENT  IN    MARINE  INSURANCE.  §  2717 

less ;  but  he  is  liable  for  his  proportion  of  all  general  average 
loss  assessed  upon  the  thing  insured.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  258.] 

General  average,  liability  for:  See  post,  §  2744. 

Legislation  §  2711.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1484. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  258,  (1)  adding  "particular" 
before  "average,"  (2)  changing  "becomes"  to  "become"  before  "entirely 
worthless,"  and  (3)  adding  the  final  clause  following  these  latter  words. 

§  2712.  Insurance  against  total  loss.  An  insurance  confined 
in  terms  to  an  actual  total  loss,  does  not  cover  a  constructive 
total  loss,  but  covers  any  loss  Avhich  necessarily  results  in  de- 
priving the  insured  of  the  possession,  at  the  port  of  destina- 
tion, of  the  entire  thing  insured.  [Amendment  approved 
1874;  Code  Amdts.  1873-74,  p.  259.] 

Legislation  §  2712.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1485. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  259,  (1)  changing  "a  total 
loss"  to  "an  actual  total  loss,"  and  (2)  omitting  "and  also  a  general 
average  loss"  at  end  of  section. 

AETICLE  VIII. 

Abandonment. 

§  2716.  Abandonment,  what. 

§  2717.  When  insured  may  abandon. 

§  2718.  Must  be  unqualified. 

§  2719.  When  may  be  made. 

§  2720.  Abandonment  may  be  defeated. 

§  2721.  How  made. 

§  2722.  Eequisites  of  notice. 

§  2723.  No  other  cause  can  be  relied  on. 

§  2724.  Effect. 

§  2725.  Waiver  of  formal  abandonment. 

§  2726.  Agents  of  the  insured  become  agents  of  the  insurer. 

§  2727.  Acceptance  not  necessary, 

§  2728.  Acceptance  conclusive. 

§  2729.  Accepted  abandonment,  irrevocable. 

§  2730.  Freightage,  how  affected  by  abandonment  of  ship. 

§  2731.  Refusal  to  accept. 

§  2732.  Omission  to  abandon. 

§  2716.  Abandonment,  what.  Abandonment  is  the  act  by 
which,  after  a  constructive  total  loss,  a  person  insured  by  con- 
tract of  marine  insurance  declares  to  the  insurer  that  he  re- 
linquishes to  him  his  interest  in  the  thing  insured. 

Abandonment,  requisites  of:   Post,  §§  2718-2723. 
Constructive  total  loss,  defined:   Ante,  §  2705. 

Legislation  §  2716.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1486. 

§  2717.  When  insured  may  abandon.  A  person  insured  by 
a  contract  of  marine  insurance  may  abandon  the  thing  insured, 


§  2721  CIVIL  CODE,  700 

or  any  particular  portion  thereof  separately  valued  by  the 
policy,  or  otherwise  separately  insured,  and  recover  for  a  total 
loss  thereof,  Avhen  the  cause  of  the  loss  is  a  peril  insured 
against : 

1.  If  more  than  half  thereof  in  value  is  actually  lost,  or 
would  have  to  be  expended  to  recover  it  from  the  peril ; 

2.  If  it  is  injured  to  such  an  extent  as  to  reduce  its  value 
more  than  one  half ; 

3.  If  the  thing  insured,  being  a  ship,  the  contemplated  voy- 
age cannot  be  lawfully  performed  without  incurring  an 
expense  to  the  insured  of  more  than  half  the  value  of  the 
thing  abandoned,  or  without  incurring  a  risk  which  a  prudent 
man  would  not  take  under  the  circumstances  ;  or, 

4.  If  the  thing  insured,  being  cargo  or  freightage,  the  voyage 
cannot  be  performed  nor  another  ship  procured  by  the  master, 
within  a  reasonable  time  and  with  reasonable  diligence,  to 
forward  the  cargo,  Avithout  incurring  the  like  expense  or  risk. 
But  freightage  cannot  in  any  case  be  abandoned,  unless  the 
ship  is  also  abandoned. 

Freightage,  how  affected  by  abandonment:  Post,  §  2730. 
Legislation  §  2717.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1487. 

§  2718.  Must  be  unqualified.  An  abandonment  must  be 
neither  partial  nor  concTitional. 

Legislation  §  2718.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1488. 

§  2719.  When  may  be  made.  An  abandonment  must  be 
made  within  a  reasonable  time  after  the  information  of  the 
loss,  and  after  the  commencement  of  the  voyage,  and  before 
the  party  abandoning  has  information  of  its  completion. 

Omitting  to  abandon,  insured  may  still  recover  for  his  actual  loss: 

Post,  §  2732. 

Legislation  §  2719.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1489. 

§  2720.  Abandonment  may  be  defeated.  AVhere  the  in- 
formation upon  which  an  abandonment  has  been  made  proves 
incorrect,  or  the  thing  insured  was  so  far  restored  when  the 
abandonment  was  made  that  there  was  then  in  fact  no  total 
loss,  the  abandonment  becomes  ineffectual. 

Legislation  §  2720.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1490. 

§  2721.     How  made.     Abandonment  is  made  by  giving  notice 
thereof  to  the  insurer,  Avhieh  may  be  done  orally,  or  in  writing. 
Legislation  §  2721.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1491. 


701  ABANDONMENT  IN   MARINE  INSURANCE.  §  2728 

§2722.  Requisites  of  notice.  A  notice  of  abandonment 
must  be  explicit,  and  must  specify  the  particular  cause  of  the 
abandonment,  but  need  state  only  enough  to  show  that  there 
is  probable  cause  therefor,  and  need  not  be  accompanied  with 
proof  of  interest  or  of  loss. 

No  other  cause  can  be  relied  on:  See  post,  §  2723. 

Legislation  §  2722.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1492. 

§  2723.  No  other  cause  can  be  relied  on.  An  abandonment 
can  be  sustained  only  upon  the  cause  specified  in  the  notice 
thereof. 

Legislation  §  2723.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  149.3. 

§  2724.     Effect.     An  abandonment  is  equivalent  to  a  trans- 
fer, by  the  insured,  of  his  interest,  to  the  insurer,  with  all  the 
chances  of  recovery  and  indemnity. 
Subrogation  of  insurer:  See  post,  §  2745. 

Legislation  §  2724.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1494. 

§  2725.  Waiver  of  formal  abandonment.  If  a  marine  in- 
surer pays  for  a  loss  as  if  it  were  an  actual  total  loss,  he  is 
entitled  to  whatever  may  remain  of  the  thing  insured,  or  its 
proceeds  or  salvage,  as  if  there  had  been  a  formal  abandon- 
ment. 

Legislation  §  2725.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1495. 

§  2726.     Agents  of  the  insured  become  agents  of  the  insurer. 

Upon  an  abandonment,  acts  done  in  good  faith  by  those  who 
were  agents  of  the  insured  in  respect  to  the  thing  insured, 
subsequent  to  the  loss,  are  at  the  risk  of  the  insurer,  and  for 
his  benefit. 

Legislation  §  2726.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1496. 

§  2727.     Acceptance  not  necessary.     An  acceptance  of  an 
abandonment  is  not  necessary  to  the  rights  of  the  insured,  and 
is  not  to  be  presumed  from  the  mere  silence  of  the  insurer,  upon 
his  receiving  notice  of  abandonment. 
Compare  §  2731,  post. 

Legislation  §  2727.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1497. 

§  2728.  Acceptance  conclusive.  The  acceptance  of  an  aban- 
donment, whether  express  or  implied,  is  conclusive  upon  the 
parties,  and  admits  the  loss  and  the  sufficiency  of  the  abandon- 
ment. 


§  2736  ^  CIVIL  CODE.  702 

Legislation  §  2728.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1498. 

§  2729.  Accepted  abandonment,  irrevocable.  An  abandon- 
ment once  made  and  accepted  is  irrevocable,  unless  the  ground 
upon  which  it  was  made  proves  to  be  unfounded. 

Legislation  §  2729.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1499. 

§  2730.     Freightag-e,  how  affected  by  abandonment  of  ship. 

On  an   accepted  abandonment  of  a   ship,   freightage  earned 
previous  to  the  loss  belongs  to  the  insurer  thereof ;  but  freight- 
age subsequently  earned  belongs  to  the  insurer  of  the  ship. 
Abandonment  of  freightage:  Ante,  §  2717,  subd.  4. 
Legislation  §  2730.     Enacted  March  21,  1872;  based  oq  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1500. 

§  2731.     Refusal  to  accept.     If  an  insurer  refuses  to  accept 
a  valid  abandonment,  he  is  liable  as  upon  an  actual  total  loss, 
deducting  from  the  amount  any  proceeds  of  the  thing  insured 
Avhich  may  have  come  to  the  hands  of  the  insured. 
Acceptance  not  presumed  from  silence:  Ante,  §  2727. 
Legislation  §  2731.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1501. 

§  2732.  Omission  to  abandon.  If  a  person  insured  omits  to 
abandon,  he  may  nevertheless  recover  his  actual  loss. 

Legislation  §  2732.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1502. 

ARTICLE  IX. 
Measure  of  Indemnity. 

§  2736.  Valuation,  when  conclusive. 

§  2737.  Partial  loss. 

§  2738.  Profits. 

§  2739.  Valuation  apportioned. 

§  2740.  Valuation  applied  to  profits. 

§  2741.  Estimating  loss  under  an  open  policy. 

§  2742.  Arrival  of  thing  damaged. 

§  2743.  Labor  and  expenses. 

§  2744.  General  average. 

§  2745.  Contribution. 

§  2746.  One  third  new  for  old. 

§  2736.  Valuation,  when  conclusive.  A  valuation  in  a  policy 
of  marine  insurance  is  conclusive  between  the  parties  thereto 
in  the  adjustment  of  either  a  partial  or  total  loss,  if  the  in- 
sured has  some  interest  at  risk,  and  there  is  no  fraud  on  his 
part;  except  that  when  a  thing  has  been  hypothecated  by 
bottomry  or  respondentia,  before  its  insurance,  and  without 
the  knowledge  of  the  person  actually  procuring  the  insurance, 


703  MARINE  INSURANCE.      MEASURE  OF   INDEMNITY.         §  2741 

he  may  show  the  real  value.     But  a  valuation  fraudulent  -  in 
fact  entitles  the  insurer  to  rescind  the  contract. 

Valued  policies:  See  ante,  §  2596. 

Valued  policy  on  freightage  or  cargo:  See  post,  §  2739. 
Valuation  of  profits:  See  post,  §  2740. 
Valued  policy  of  fire  insurance:  See  post,  §  2756. 

Legislation  §  2736.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1503;  3  Kent's  Com.,  p.  274. 

§  2737.  Partial  loss.  A  marine  insurer  is  liable  upon  a  par- 
tial loss,  only  for  such  proportion  of  the  amount  insured  by 
him  as  the  loss  bears  to  the  value  of  the  Avhole  interest  of  the 
insured  in  the  property  insured. 

Compare  §  2756  (stating  the  measure  of  indemnity  in  case  of  fire 
insurance). 

Legislation  §  2737.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  T.  Civ.  Code,  §1504. 

§  2738.  Profits.  Where  profits  are  separately  insured  in  a 
contract  of  marine  insurance,  the  insured  is  entitled  to  recover, 
in  case  of  loss,  a  proportion  of  such  profits  equivalent  to  the 
proportion  which  the  value  of  the  property  lost  bears  to  the 
value  of  the  Avhole. 

Valuation  applied  to  profits:  See  post,  §  2740. 

Legislation  §  2738.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  1505. 

§  2739.  ,  Valuation  apportioned.  In  ease  of  a  valued  policy 
of  marine  insurance  on  freightage  or  cargo,  if  a  part  only  of 
the  subject  is  exposed  to  risk,  the  A'aluation  applies  only  in 
proportion  to  such  part. 

Legislation  §  2739.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1506;  3  Kent's  Com.,  p.  275. 

§  2740.  Valuation  applied  to  profits.  When  profits  are 
valued  and  insured  by  a  contract  of  marine  insurance,  a  loss 
of  them  is  conclusively  presumed  ^rom  a  loss  of  the  property 
out  of  which  they  were  expected  to  arise,  and  the  valuation 
fixes  their  amount. 

Profits:  See  §  2738,  ante. 

Legislation  §  2740.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1507. 

§2741.  Estimating  loss  under  an  open  policy.  In  estimat- 
ing a  loss  under  an  open  policy  of  marine  insurance,  the  fol- 
loAving  rules  are  to  be  observed : 

1.  The  value  of  a  ship  is  its  value  at  the  beginning  of  the 
risk,  including  all  articles  or  charges  Avhich  add  to  its  perma- 
nent value,  or  which  are  necessary  to  prepare  it  for  the  voyage 
insured; 


§  2745  CIVIL  CODE.  704 

2.  The  value  of  cargo  is  its  actual  cost  to  the  insured,  when 
laden  on  board,  or  where  that  cost  cannot  be  ascertained,  its 
market  value  at  the  time  and  place  of  lading,  adding  the 
charges  incurred  in  purchasing  and  placing  if  on  board,  but 
Avithout  reference  to  any  losses  incurred  in.  raising  money  for 
its  purchase,  or  to  any  drawback  on  its  exportation,  or  to  the 
fluctuations  of  the  market  at  the  port  of  destination,  or  to 
expenses  incurred  on  the  way  or  on  arrival ; 

3.  The  value  of  freightage  is  the  gross  freightage,  exclusive 
of  primage,  without  reference  to  the  cost  of  earning  it ;  and, 

4.  The  cost  of  insurance  is  in  each  case  to  be  added  to  the 
value  thus  estimated. 

Partial  loss  of  ship:  Post,  §  2746.  .     . 

Legislation  §  2741.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1508;  .3  Kent's  Com.,  pp.  335,  336. 

§  2742.  Arrival  of  thing-  damaged.  If  cargo  insured  against 
partial  loss  arrives  at  the  port  of  destination  in  a  damaged  con- 
dition, the  loss  of  the  insured  is  deemed  to  be  the  same  pro- 
portion of  the  value  which  the  market  price  at  that  port,  of  the 
thing  so  damaged,  bears  to  the  market  price  it  would  have 
brought  if  sound. 

Legislation  §  2742.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1509;  3  Kent's  Com.,  p.  336. 

§  2743.  Labor  and  expenses.  A  marine  insurer  is  liable  for 
all  the  expense  attendant  upon  a  loss  which  forces  the  ship 
into  port  to  be  repaired ;  and  Avhere  it  is  agreed  that  the  in- 
sured may  labor  for  the  recovery  of  the  property,  the  insurer 
is  liable  for  the  expense  incurred  thereby,  such  expense,  in 
either  case,  being  in  addition  to  a  total  loss,  if  that  afterwards 
occurs. 

Legislation  §  2743.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  1510;  3  Kent's  Com.,  p.  339. 

§'2744.  General  average,  A  marine  insurer  is  liable  for  a 
loss  falling  upon  the  insured,  through  a  contribution  in  respect 
to  the  thing  insured,  required  to  be  made  by  him  towards  d, 
general  average  loss  called  for  by  a  peril  insured  against. 

General  average,  generally:  Ante,  §§  2148,  2152  et  seq. 
General  average,  liability  for:   See  ante,  §  2711. 

Legislation  §  2744.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1511. 

§  2745.  Contribution.  Where  a  person  insured  by  a  con- 
tract of  marine  insurance  has  a  demand  against  others  for 
contribution,  he  may  claim  the  whole  loss  from'  the  insurer, 
subrogating  him  to  his  own  right  to  contribution.  But  no  such 
claim  can  be  made  upon  the  inpnrer  after  the  separation  of  the 


705  FIRE  INSURANCE.  §  2754 

interests  liable  to  contribution,  nor  Avhen  the  insured,  having 
the  right  and  opportunity  to  enforce  contribution  from  others, 
has  neglected  or  waived  the  exercise  of  that  right.      [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  259.] 
Sulirogation  of  insurer:  Ante,  §  2724. 

Legislation  §  2745.  1.  Enacted  March  21.  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1512),  the  first  sentence  then  constituting  the 
section. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  259. 

§  2746.  One  third  new  for  old.  In  the  case  of  a  partial  loss 
of  a  ship  or  its  equipments,  the  old  materials  are  to  be  applied 
towards  payment  for  the  new,  and  whether  the  ship  is  new  or 
old,  a  mariiie  insurer  is  liable  for  only  two  thirds  of  the  remain- 
ing cost  of  the  repairs,  except  that  he  must  pay  for  anchors 
and  cannon  in  full,  and  for  sheathing-metal  at  a  depreciation 
of  only  two  and  one  half  per  cent  for  each  month  that  it  has 
been  fastened  to  the  ship. 

Sale  of  wrecked  or  damaged  vessels:  See  Pol.  Code,  §  2507. 
Legislation  §  2746.     Enacted  March  21.  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1513. 

CHAPTER    III. 

Fire  Insurance. 

§  2752.  False  representation.     [Eepealed.] 

§   2753.  Alteration  increasing  risk. 

§  2754.  Alteration  not  increasing  risk. 

§  2755.  Acts  of  the  insured. 

§  2756.  Measure  of  indemnity. 

§  2757.  Value   of  interest  in   policy   of   insurance.     How   may  be  fixed. 
Total  or  partial  loss. 

§  2752.  False  representation.  [Repealed  1874;  Code  Amdts. 
1873-74,  p.  259.] 

Legislation  §  2752.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  259. 

§2753.  Alteration  increasing*  risk.  An  alteration  in  the 
use  or  condition  of  a  thing  insured  from  that  to  M^hich  it  is 
limited  by  the  policy,  made  without  the  consent  of  the  insurer, 
by  means  within  the  control  of  the  insured,  and  increasing  the 
risk,  entitles  an  insurer  to  rescind  a  contract  of  fire  insurance. 
Legislation  §  2753.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1515;  Angell  on  Insurance,  p.  206. 

§  2754.     Alteration  not  increasing-  risk.     An  alteration  in 

the  use  or  condition  of  a  thing  insured  from  that  to  which  it 
is  limited  by  the  policy,  which  does  not  increase  the  risk,  does 
not  affect  a  contract  of  fire  insurance. 

Civ.  Code — 45 


§  2757  CIVIL  CODE.  706 

Legislation  §  2754.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1516. 

§  2755.  Acts  of  the  insured.  A  contract  of  fire  insurance  is 
not  affected  by  any  act  of  the  insured  subsequent  to  the  execu- 
tion of  the  policy,  which  does  not  violate  its  provisions,  even 
though  it  increases  the  risk  and  is  the  cause  of  a  loss. 

Legislation  §  2755.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1517. 

§  2756.  Measure  of  indemnity.  If  there  is  no  valuation  in 
the  policy,  the  measure  of  indemnity  in  an  insurance  against 
fire  is  the  expense  it  would  be  to  the  insured  at  the  time  of 
the  commencement  of  the  fire  to  replace  the  thing  lost  or  in- 
jured in  the  condition  in  which  it  was  at  the  time  of  the  injury ; 
but  the  effect  of  a  valuation  in  a  policy  of  fire  insurance  is  the 
same  as  in  a  policv  of  marine  insurance.  [Amendment  ap- 
proved 1909;  Stats."'l909,  p.  914.] 

Valued  policy  in  marine  insurance:  See  ante,  §  2736. 
Legislation  §  2756.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1518),  and  then  read:  "If  there  is  no  valu- 
ation in  the  policy,  the  measure  of  indemnity  in  an  insurance  against 
fire  is  the  expense,  at  the  time  that  the  loss  is  payable,  of  replacing 
the  thing  lost  or  injured  in  the  condition  in  which  it  was  at  the  time 
of  the  injury;  but  the  effect  of  a  valuation  in  a  policy  of  fire  insurance 
is  the  same  as  in  a  policy  of  marine  insurance." 
2.  Amended  by  Stats.  1909,  p.  914. 

§  2757.  Value  of  interest  in  policy  of  insurance.  Kow  may 
be  fixed.  Total  or  partial  loss.  AVhcnever  the  insured  desires 
to  have  a  valuation  named  in  his  policy,  insuring  any  building 
or  structure  against  fire,  he  may  require  such  building  or 
structure  to  be  examined  by  the  insurer  and  the  value  of  the 
insured's  interest  therein  shall  l)e  thereupon  fixed  by  the  par- 
ties. The  cost  of  such  examination  shall  be  paid  for  by  the 
insured.  A  clause  shall  be  inserted  in  such  policy  stating  sub- 
stantially that  the  value  of  the  insured 's  interest  in  such  build- 
ing or  structure  has  been  thus  fixed.  In  the  absence  of  any 
change  increasing  the  risk  Avithout  the  consent  of  the  insurer 
or  of  fraud  on  the  part  of  the  insured,  then  in  case  of  a  total 
loss  under  such  policy,  the  whole  amount  so  insured  upon  the 
insured's  interest  in  such  building  or  structure,  as  stated  in 
the  policy  upon  which  the  insurers  have  received  a  premium, 
shall  be  paid,  and  in  case  of  a  partial  loss  the  full  amount  of 
the  partial  loss  shall  be  so  paid,  and  in  case  there  are  tAvo  or 
more  policies  covering  the  insured's  interest  therein,  each 
policy  shall  contribute  pro  rata  to  the  payment  of  such  whole 
or  partial  loss.  But  in  no  case  shall  the  insurer  be  required 
to  pay  more  than  the  amount  thus  stated  in  such  policy.     This 


707  LIFE    AND   HEALTH    INSURANCE.  §  2764 

iSection  shall  not  prevent  the  parties  from  stipulating  in  such 
policies  concerning  the  repairing,  rebuilding  or  replacing 
buildings  or  structures  wholly  or  partially  damaged  or 
destroyed. 

Legislation  §  2757.     Added  by  Stats.  1901,  p.  572. 


CHAPTER  IV. 

Life  and  Health  Insurance. 

§  2762.  Insurance  upon  life,  when  payable. 

§  2763.  Insurable  interest. 

§  2764.  Assignee,  etc.,  of  life  policy  need  have  no  interest. 

§  2765.  Notice  of  transfer. 

§  2766.  Measure  of  indemnity. 

§  2762.  Insurance  upon  life,  when  payable.  An  insurance 
upon  life  may  be  made  payable  on  the  death  of  the  person,  or 
on  his  surviving  a  specified  period,  or  periodically  so  long  as 
he  shall  live,  or  otherwise  contingently  on  the  continuance  or 
determination  of  life. 

Mutual  life,  health,  and  accident  insurance  corporations:  See  ante, 
§§437  et  seq.;  post,  Appendix,  tit.  "Insurance." 

Fraternal  societies  not  insurance  companies:  See  ante,  §  451. 

Legislation  §  2762.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1519. 

§  2763.     Insurable  interest.     Every  person  has  an  insurable 

interest  in  the  life  and  health : 

1.  Of  himself; 

2.  Of  any  j^erson  on  whom  he  depends  Avholly  or  in  part  for 
education  or  support; 

3.  Of  any  person  under  a  legal  obligation  to  him  for  the 
payment  of  money,  or  respecting  property  or  services,  of  which 
death  or  illness  might  delay  or  prevent  the  performance ;  and, 

4.  Of  any  person  upon  whose  life  any  estate  or  interest 
vested  in  him  depends. 

Insurable  interest,  generally:   Ante,  §§  2546  et  seq. 
Legislation  §  2763.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1520. 

§  2764.     Assignee,  etc.,  of  life  policy  need  have  no  interest. 

A  policy  of  insurance  upon  life  or  health  may  pass  by  transfer, 
will,  or  succession  to  any  person,  whether  he  has  an  insurable 
interest  or  not,  and  such  person  may  recover  upon  it  Avhatever 
the  insured  might  have  recovered. 
Compare  §  2553,  ante. 

Legislation  §  2764.  Enacted  March  21,  1872;  based  ou  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1521. 


§  2774  CIVIL  CODE.  70S 

§  2765.  Notice  of  transfer.  Notice  to  an  insurer  of  a  trans- 
fer or  bequest  thereof  is  not  necessary  to  preserve  the  validity 
of  a  policy  of  insurance  upon  life  or  health,  unless  thereby 
expressly  required. 

Legislation  §  2765.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1522;  Angell  on  Insurance,  p.  413. 

§  2766.  Measure  of  indemnity.  Unless  the  interest  of  a  per- 
son insured  is  suseeptilile  of  exact  pecuniary  measurement,  the 
measure  of  indemnity  under  a  policy  of  insurance  upon  life  or 
health  is  the  sum  fixed  in  the  policy. 

Act  relating  to  life,  health,  accident,  and  annuity  or  endowment  in- 
surance: See  post,  Appendix,  tit.  "Insurance." 

Legislation  §  2766.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1523. 


TITLE  XII. 
Indemnity. 

§  2772.  Indemnity,  what. 

§  2773.  Indemnity  for  a  future  wrongful  act  void. 

§  2774.  Indemnity  for  a  past  wrongful  act  valid. 

§  2775.  Indemnity  extends  to  acts  of  agents. 

§  2776.  Indemnity  to  several. 

§  2777.  Person    indemnifying    liable    jointly    or    severally    with    person 

indemnified. 

§  2778.  Rules  for  interpreting  agreement  of  indemnity. 

§  2779.  Wlien  person  indemnifying  is  a  surety. 

§  2780.  Bail,  what. 

§  2781.  How  regulated. 

§  2772.  Indemnity,  what.  Indemnity  is  a  contract  by  which 
one  engages  to  save  another  from  a  legal  consequence  of  the 
conduct  of  one  of  the  parties,  or  of  some  other  person. 

Legislation  §  2772.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  ?  1524. 

§2773.  Indemnity  for  a  future  wrongful  act  void.  An 
agreement  to  indemnify  a  person  against  an  act  thereafter  to 
be  done,  is  void,  if  the  act  be  knoAvn  by  such  person  at  the  time 
of  doing  it  to  be  unlawful.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  259.] 

Legislation  §  2773.     1.    Enacted    March    21,    1872    (based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1525),  and  then  read:  "An  agreement  to  in- 
demnify a  person  against  an  act  thereafter  to  be  done  is  void,  if  the 
act  is  known  bv  such  person,  at  the  time  of  doing  it,  to  be  wrongful.'" 
2.  Amended  by  Code  Amdts.  1873-74,  p.  259. 

§  2774.  Indemnity  for  a  past  wrongful  act  valid.  An  agree- 
ment to  indemnify  a  person  against  an  act  already  done,  is 


2767.  [New.]  Disposition  by  Beneficiary  of  Interest  Uncier 
Policy  of  Life  Insurance.  The  beneficiary  under  a  policy  of  life 
insurance,  providing  for  the  payment  of  the  proceeds  thereof  in 
periOuical  instalimente,  may  be  restrained  from  disposing  of  or 
incumbering  his  intere.st  in  any  such  installment,  prior  to  the 
date  when  it  shall  become  due  and  payable  by  the  insurer,  by  a 
condition  or  stipulation  in  the  policy.  (Ib  effect  90  days  from 
and  after   .Vpril   27.   1917.     Stats.    1917,    Chap.    698.)      Civ.    Code,    1917. 


709  INDEMNITY.  §  2778 

valid,  even  though  the  act  was  known  to  Lc  wrongful,  unless 
it  was  a  felony. 

Legislation  §  2774.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §1526. 

§  2775.  Indemnity  extends  to  acts  of  agents.  An  agree- 
ment to  indemnify  against  the  acts  of  a  certain  person,  applies 
not  only  to  his  acts  and  their  consequences,  but  also  to  those 
of  his  agents. 

Legislation  §  2775.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1527. 

§  2776.  Indemnity  to  several.  An  agreement  to  indemnify 
several  persons  applies  to  each,  unless  a  contrary  intention 
appears. 

Legislation  §  2776.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1528. 

§  2777.  Person  indemnifying-  liable  jointly  or  severally  with 
person  indemnified.  One  who  indemnifies  another  against  an 
act  to  be  done  by  the  latter,  is  liable  jointly  with  the  person 
indemnified,  and  separately,  to  every  person  injured  by  such 
act. 

Legislation  §  2777.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1529. 

§  2778.     Rules  for  interpreting  agreement  of  indemnity.     In 

the  interpretation  of  a  contract  of  indemnity,  the  following 
rules  are  to  be  applied,  unless  a  contrary  intention  appears : 

1.  Upoii  an  indemnity  against  liability,  expressly,  or  in  other 
equivalent  terms,  the  person  indemnified  is  entitled  to  recover 
upon  becoming  liable ; 

2.  Upon  an  indemnity  against  claims,  or  demands,  or  dam- 
ages, or  costs,  expressly,  or  in  other  equivalent  terms,  the  per- 
son indemnified  is  not  entitled  to  recover  without  payment 
thereof; 

3.  An  indemnity  against  claims,  or  demands,  or  liability,^ 
expressly,  or  in  other  equivalent  terms,  embraces  the  costs  of 
defense  against  such  claims,  demands,  or  liability  incurred  in 
good  faith,  and  in  the  exercise  of  a  reasonable  discretion ; 

4.  The  person  indemnifying  is  bound,  on  request  of  the  per- 
son indemnified,  to  defend  actions  or  proceedings  brought 
against  the  latter  in  respect  to  the  matters  embraced  by  the 
indemnity,  but  the  person  indemnified  has  the  right  to  conduct 
such  defenses,  if  he  chooses  to  do  so ; 

5.  If,  after  request,  the  person  indemnifying  neglects  to  de- 
fend the  person  indemnified,  a  recovery  against  the  latter  suf- 
fered by  him  in  good  faith,  is  conclusive  in  his  favor  against 
the  former ; 


§  2781  CIVIL  CODE.  710 

6.  If  the  person  indemnifying,  whether  he  is  a  principal  or 
a  surety  in  the  agreement,  has  not  reasonable  notice  of  the 
action  or  proceeding  against  the  person  indemnified,  or  is  not 
allowed  to  control  its  defense,  judgment  against  the  latter  is 
only  presumptive  evidence  against  the  former ; 

7.  A  stipulation  that  a  judgment  against  the  person  in- 
demnified shall  be  conclusive  upon  the  person  indemnifying, 
is  inapplicable  if  he  had  a  good  defense  upon  the  merits,  which 
by  want  of  ordinary  care  he  failed  to  establish  in  the  action. 

Legislation  §  2778.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1530. 

§  2779.  When  person  indemnifying'  is  a  surety.  Where  one, 
at  the  request  of  another,  engages  to  answer  in  damages, 
whether  liquidated  or  unliquidated,  for  any  violation  of  duty 
on  the  part  of  the  latter,  he  is  entitled  to  be  reimbursed  in  the 
same  manner  as  a  surety,  for  whatever  he  may  pay. 

Legislation  §  2779.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

K  y.  Civ.  Code,  §  1531. 

§2780.  Bail,  what.  Upon  those  contracts  of  indemnity 
which  are  taken  in  legal  proceedings  as  security  for  the  per- 
formance of  an  obligation  imposed  or  declared  by  the  tribunals, 
and  known  as  undertakings  or  recognizances  the  sureties  are 
called  bail. 

Legislation  §  2780.     1.    Enacted    March   21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1532. 

2.  Repeal    by    Stats.    1901,    p.    416;    unconstitutioual.     See    note,  §  4, 
ante. 

§  2781.  How  regulated.  The  obligations  of  bail  are  gov- 
erned by  the  statutes  specially  applicable  thereto. 

Legislation  §  2781.     1.    Enacted    March    21.    1872;    based    on    Field's 
Draft,  jST.  Y.  Civ.  Code,  §  1533. 

2.  Repeal    by    Stats.    1901,    ]>.    416;    unconstitutional.     See    note.  §  4, 
ante. 


711  GUARANTY.       DEFINITION   AND   CREATION   OP,  §  2793 

TITLE  XIII. 

Guaranty. 

Chapter  I.     Guarauty   in   General.     Articles  I-VI.     §§  2787-2825. 
II.     Suretyship.     Articles  I-V.     §§  2831-2866. 

CHAPTER  I. 

Guaranty  in  General. 

Article  I.  Definition  of  Guaranty.     §§  2787,  2788. 

11.  Creation  of   Guaranty.     §§  2792-2795. 

III.  Interpretation  of  Guaranty.     §§  2799-2802. 

IV.  Liability   of   Guarantors.     §§  2806-2810. 
V.  Continuing  Guaranty.     §§  2814,  2815. 

VI.     Exoneration  of  Guarantors.     §§  2819-2825. 

AETICLE  I. 
Definition  of  Guaranty. 
§  2787.     Guaranty,  what. 
§   278'8.     Knowledge  of  principal  not  necessary  to  creation  of  guaranty. 

§  2787.  Guaranty,  what.  A  guaranty  is  a  promise  to  answer 
for  the  deht,  default,  or  miscarriage  of  another  person. 

Legislation  §  2787.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Ciy.  Code,  §  1534. 

§2788.  Knowledge  of  principal  not  necessary  to  creation 
of  guaranty.  A  person  may  become  guarantor  even  without 
the  knowhxlge  or  consent  of  the  principal. 

Legislation  §  2788.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1535. 

AETICLE  II. 

Creation  of  Guaranty. 

§   2792.     Necessity  of  a  consideration. 

§  2793.     Guaranty  to  be  in  writing,  etc. 

§  2794.     Engagement  to  answer  for  obligation  of  another,  when  deemed 

original. 
§  2795.     Acceptance  of  guaranty. 

§  2792.  Necessity  of  a  consideration.  Where  a  guaranty  is 
entered  into  at  the  same  time  with  the  original  obligation,  or 
with  the  acceptance  of  the  latter  by  the  guarantee,  and  forms 
with  that  obligation  a  part  of  the  consideration  to  him,  no 
other  consideration  need  exist.  In  all  other  cases  there  must 
be  a  consideration  disti-nct  from  that  of  the  original  obligation. 
Legislation  §  2792.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1536. 

§  2793.  Guaranty  to  be  in  writing,  etc.  Except  as  pre- 
scribed by  the  next  section,  a  guaranty  must  be  in  writing,  and 


§  2795  CIVIL  CODE,  712 

signed  by  the  guarantor;  but  the  writing  need  not  exjjress  a 
consideration. 

Iiegislation  §  2793.     Enacted  Mareli  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1537. 

§  2794.  Engagement  to  answer  for  obligation  of  another, 
when  deemed  original.  A  promise  to  answer  for  the  obliga- 
tion of  another,  in  any  of  the  following  eases,  is  deemed  an 
original  obligation  of  the  promisor,  and  need  not  be  in  writing : 

1.  Where  the  promise  is  made  by  one  who  has  received  prop- 
erty of  another  upon  an  undertaking  to  apply  it  pursuant  to 
such  promise ;  or  by  one  Avho  has  received  a  discharge  from  an 
obligation  in  whole  or  in  part,  in  consideration  of  such 
promise ; 

2.  Where  the  creditor  parts  Avith  value,  or  enters  into  an 
obligation,  in  consideration  of  the  obligation  in  respect  to 
which  the  promise  is  made,  in  terms  or  under  circumstances 
such  as  to  render  the  party  making  the  promise  the  principal 
debtor,  and  the  person  in  Avhose  behalf  it  is  made,  his  surety ; 

3.  Where  the  promise,  being  for  an  antecedent  obligation  of 
another,  is  made  upon  the  consideration  that  the  party  receiv- 
ing it  cancels  the  antecedent  obligation,  accepting  the  new 
promise  as  a  substitute  therefor;  or  upon  the  consideration 
that  the  party  receiving  it  releases  the  property  of  another 
from  a  levy,  or  his  person  from  imprisonment  under  an  execu- 
tion on  a  judgment  obtained  upon  the  antecedent  obligation ; 
or  upon  a  consideration  beneficial  to  the  promisor,  whether 
moving  from  either  party  to  the  antecedent  obligation,  or  from 
another  person ; 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell  mer- 
chandise and  guaranty  [guarantee]  the  sale; 

5.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable  to 
him,  transfers  it  in  payment  of  a  precedent  debt  of  his  own, 
or  for  a  new  consideration,  and  in  connection  Avith  such  trans- 
fer enters  into  a  promise  respecting  such  instrument. 

Guaranty,  necessity  of  writing:  See  ante,  §  1624:. 

Legislation  §  2794.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
X.  y.  Civ.  Code,  §  153S. 

§  2795.  Acceptance  of  guaranty.  A  mere  offer  to  guaranty 
[guarantee]  is  not  binding,  until  notice  of  its  acceptance  is 
communicated  by  the  guarantee  to  the  guarantor;  but  an  abso- 
lute guaranty  is  binding  upon  the  guarantor  without  notice  of 
acceptance. 

Absolute  gTiaranty:  See  post,  §  2806. 

Legislation  §  2795.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
X.  Y.  Civ.  Code.  §  1539. 


713  INTERPRETATION   OP   GUARANTY.  §  2806 

ARTICLE  III. 
Interpretation  of  Guaranty. 
§  2799.     Guaranty  of  incomplete  contract. 
§  2800.     Guaranty  that  an  obligation  is  good  or  collectable. 
§  2801.     Recovery  upon  such  guaranty. 
§  2802.     Guarantor's  liability  upon  such  guaranty. 

§  2799.  Guaranty  of  incomplete  contract.  In  a  guaranty  of 
a  contract,  the  terms  of  Avhich  are  not  then  settled,  it  is  im- 
plied that  its  terms  shall  be  such  as  will  not  expose  the  guar- 
antor to  greater  risks  than  he  would  incur  under  those  terms 
which  are  most  common  in  similar  contracts  at  the  place  where 
the  principal  contract  is  to  be  performed. 

Legislation  §  2799.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1540. 

§  2800.     Guaranty  that  an  obligation  is  good  or  collectable. 

A  guaranty  to  the  effect  that  an  obligation  is  good,  or  is  col- 
lectable, imports  that  the  debtor  is  solvent,  and  that  the  de- 
mand is  collectable  by  the  usual  legal  proceedings,  if  taken 
with  reasonable  diligence. 

Legislation  §  2800.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1541. 

§  2801.  Recovery  upon  such  g"uaranty.  A  guaranty,  such 
as  is  mentioned  in  the  last  section,  is  not  discharged  by  an 
omission  to  take  proceedings  upon  the  principal  debt,  or  upon 
any  collateral  security  for  its  payment,  if  no  part  of  the  debt 
could  have  been  collected  thereby. 

Legislation  §  2801.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1542. 

§  2802.     Guarantor's  liability  upon  such  g'uaranty.     In  the 

cases  mentioned  in  section  two  thousand  eight  hundred,  the 
removal  of  the  principal  from  the  state,  leaving  no  property 
therein  from  which  the  obligation  might  be  satisfied,  is  equiva- 
lent to  the  insolvency  of  the  principal  in  its  effect  upon  the 
rights  and  obligations  of  the  guarantor. 

Legislation  §  2802.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1543. 

ARTICLE  IV. 

Liability  of  Guarantors. 

§  2806.  Guaranty,  how  construed. 

§  2807.  Liability  upon  guaranty  of  payment  or  performance. 

§  2808.  Liability  upon  guaranty  of  a  conditional  obligation. 

§  2809.  Obligation  of  guarantor  cannot  exceed  that  of  the  principal. 

§  2810.  Guarantor  not  liable  on  an  illegal  contract. 

§  2806.  Guaranty,  how  construed.  A  guaranty  is  to  be 
deemed  unconditional  unless  its  terms  import  some  condition 
precedent  to  the  liability  of  the  guarantor. 


§  2815  CIVIL  CODE,  714 

Legislation  §  2806.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1544. 

§  2807.  Liability  upon  guaranty  of  payment  or  perform- 
ance. A  guarantor  of  payment  or  performance  is  liahle  to  the 
guarantee  immediately  upon  the  default  of  the  principal,  and 
without  demand  or  notice. 

Legislation  §  2807.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1545. 

§  2808.     Liability  upon  guaranty  of  a  conditional  obligation. 

Where  one  guarantees  a  conditional  obligation,  his  liability  is 
commensurate  with  that  of  the  principal,  and  he  is  not  entitled 
to  notice  of  the  default  of  the  principal,  unless  he  is  unable, 
by  the  exercise  of  reasonal)le  diligence,  to  acquire  information 
of  such  default,  and  the  creditor  has  actual  notice  thereof. 

Legislation  §  2808.     Enacted  March '21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1546. 

§  2809.  Obligation  of  guarantor  cannot  exceed  that  of  the 
principal.  The  obligation  of  a  guarantor  must  be  neither 
larger  in  amount  nor  in  other  respects  more  burdensome  than 
that  of  the  principal ;  and  if  in  its  terms  it  exceeds  it,  it  is 
reducible  in  proportion  to  the  principal  obligation. 

Legislation  §  2809.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1547. 

§  2810.     Guarantor   not   liable   on  an   illegal   contract.    A 

guarantor  is  not  liable  if  the  contract  of  the  principal  is  un- 
lawful ;  but  he  is  liable  notwithstanding  any  mere  personal 
disability  of  the  principal,  though  the  disability  be  such  as  to 
make  the  contract  void  against  the  principal. 

Legislation  §  2810.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1548. 

AETICLE  V. 

Continuing   Guaranty. 

§   2814.     Continuing  guaranty,  what. 
§  2815.     Revocation. 

§  2814.  Continuing'  guaranty,  what.  A  guaranty  relating 
to  a  future  liability  of  the  principal,  under  successive  trans- 
actions, which  either  continue  his  liability  or  from  time  to  time 
renew  it  after  it  has  been  satisfied,  is  called  a  continuing 
guaranty. 

Legislation  §  2814.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1549. 

§2815.  Revocation.  A  continuing  guaranty  may  be  re- 
voked at  any  time  by  the  guarantor,  in  respect  to  future  trans- 


715  EXONERATION  OF  GUARANTORS.  §  2822 

actions,  unless  there  is  a  continuing  consideration  as  to  such 
transactions  which  he  does  not  renounce. 

Legislation  §  2815.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1550. 


§  2819 

§  2820 

§  2821 

§  2822 

§  2823 

§  2824 

§  2825 


AETICLE  VI. 

Exoneration  of  Guarantors. 

What  dealings  with  debtor  exonerate  guarantor. 
Void  promises. 
Rescission  of  alteration. 
Part  performance. 

Delay  of  creditor  does  not  discharge  guarantor. 
Guarantor   indemnified  by   the   debtor,  not  exonerated. 
Discharge  of  principal  by  act  of  law  does  not  discharge  guar- 
antor. ■ 


§  2819.     What  dealings  with  debtor  exonerate  guarantor.     A 

guarantor  is  exonerated,  except  so  far  as  he  may  be  indemni- 
fied by  the  principal,  if  by  any  act  of  the  creditor,  without  the 
consent  of  the  guarantor,  the  original  obligation  of  the  prin- 
cipal is  altered  in  any  respect,  or  the  remedies  or  rights  of  the- 
creditor  against  the  principal,  in  respect  thereto,  in  any  way 
impaired  or  suspended. 

Liability  of  guarantor:  See  ante,  §§  2806  et  seq. 

Rights  of  creditor  where  security  given:  See  post,  §  2854. 

Forbearance  will  not  discharge:  Post,  §  2823. 

Neglect  or  refusal  to  sue  after  request  will  discharge:  Post,  §  2845. 

Discharge  of  surety  by  alteration  of  principal's  contract:  Post,  §  2821. 

Legislation  §  2819.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  1551. 

§  2820.  Void  promises.  A  pT'omise  by  a  creditor,  Avhich  for 
any  cause  is  void,  or  voidable  by  him  at  his  option,  does  not 
alter  the  obligation  or  suspend  or  impair  the  remedy,  within 
the  meaning  of  the  last  section. 

Legislation  §  2820.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1552. 

§  2821.  Rescission  of  alteration.  The  rescission  of  an  agree- 
ment altering  the  original  ol)ligation  of  a  debtor,  or  impairing 
the  remedy  of  a  creditor,  does  not  restore  the  liability  of  a 
guarantor  who  has  been  exonerated  by  such  agreement. 

Legislation  §  2821.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1553. 

§  2822.  Part  performance.  The  acceptance,  by  a  creditor, 
of  anything  in  partial  satisfaction  of  an  obligation,  reduces 
the  obligation  of  a  guarantor  thereof,  is  [in]  the  same  measure 
as  that  of  the  principal,  but  does  not  otherwise  aifect  it. 


§  2831  CIVIL  CODE.  716 

Part  performance  of  obligation,  expressly  accepted  by  creditor,  in 
writing,  extinguishes  obligation  of  debtor,  and  therefore  that  of  surety: 

Ante,  §§  1523,  1524. 

Part  performance,  effect  of:  See  ante,  §§  1477,  1486,  1524. 

Legislation  §  2822.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1554. 

§  2823.     Delay  of  creditor  does  not  discharge  guarantor. 

Mere  delay  on  the  part  of  a  creditor  to  proceed  against  the 
principal,  or  to  enforce  any  other  remedy,  does  not  exonerate 
a  gnarantor. 

Notice  to  creditor  to  sue:  See  post,  §  2845. 

Legislation  §  2823.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1555. 

§  2824.  Guarantor  indemnified  by  the  debtor,  not  ex- 
onerated. A  gnarantor,  Avho  has  been  indemnified  by  the 
principal,  is  liable  to  the  creditor  to  the  extent  of  the  indem- 
nity, notwithstanding  that  the  creditor,  withont  the  assent 
of  the  guarantor,  may  have  modified  the  contract  or  released 
the  principal. 

See   ante.  §  2819,  and  §  2794,   subd.   1. 

Legislation  §  2824.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1556. 

§  2825.  Discharge  of  principal  by  act  of  law  does  not  dis- 
charge guarantor.  A  gnarantor  is  not  exonerated  by  the  dis- 
charge of  his  principal  by  operation  of  law,  Avithout  the 
intervention  or  omission  of  the  creditor. 

Legislation  §  2825.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1557. 

CHAPTER  II. 

Suretyship. 

Article  I.  Who   are   Sureties.     §§  2831,   2832. 

n.  Liabilitv  of  Sureties.     §§  2836-2840. 

m.  Eights  of  Sureties.     §§  2844-2850. 

TV.  Eights  of  Creditors.     §  2854. 

V.  Letter  of  credit.     §§  2858-2866. 

AETICLE  I. 

Who   are    Sureties. 
§  2831.     Surety,  what. 
§  2832.     Apparent  principal  may  show  that  he  is  surety. 

§2831.  Surety,  what.  A  surety  is  one  Avho  at  the  request 
of  another,  and  for  the  purpose  of  securing  to  him  a  benefit, 
becomes  responsible  for  the  performance  by  the  latter  of  some 
act  in  favor  of  a  third  person,  or  hypothecates  property  as 
security  therefor. 


717  WHO  ARE  SURETIES.      LIABILITY  OF  SURETIES.  §  2839 

Legislation  §  2831.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1558. 

§  2832.     Apparent  principal  may  show  that  he  is  surety. 

One  who  appears  to  l)c  a  principal,  whether  by  the  terms  of  a 
written  instrument  or  otherwise,  may  show  that  he  is  in  fact 
a  surety,  except  as  against  persons  Avho  have  acted  on  the 
faith  of  his  apparent  character  of  principal. 

Legislation  §  2832.  Enacted  March  21,  1872;  based  on  Field's  Draft,. 
N.  Y.  Civ.  Code,  §  1559. 

AETICLE  II. 
Liability  of  Sureties. 

§  2836.  Limit  of  surety's  obligation. 

§  2837.  Rules  of  interpretation. 

§  2838.  Judgment  against  surety  does  not  alter  the  relation. 

§  2839.  Surety  exonerated  by  performance  or  offer  of  performance. 

§  2840.  Surety  discharged  by  certain  acts  of  the  creditor. 

§2836.  Limit  of  surety's  obligation.  A  surety  cannot  be 
held  beyond  the  express  terms  of  his  contract,  and  if  such  con- 
tract prescribes  a  penalty  for  its  breach,  he  cannot  in  any  case 
be  liable  for  more  than  the  penalty. 

Principal  bound  when  surety  bound:  See  Code  Civ.  Proc,  §  1912. 
Liability  of  guarantors:  See  ante,  §§  2807,  2808. 

Legislation  §  2836.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1560. 

§  2837.  Rules  of  interpretation.  In  interpreting  the  terms 
of  a  contract  of  suretyship,  the  same  rules  are  to  be  observed 
as  in  the  case  of  other  contracts. 

Legislation  §  2837.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

JSr.  Y.  Civ.  Code,  §  1561. 

§  2838.    Judgment  against  surety  does  not  alter  the  relation. 

Notwithstanding    the    recovery    of   judgment    by    a    creditor 
against  a  surety,  the  latter  still  occupies  the  relation  of  surety. 
Conclusiveness  of  judgment  against  sureties:    See  Code  Civ.  Proc, 
§  1055. 

Legislation  §  2838.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1562. 

§  2839.  Surety  exonerated  by  performance  or  offer  of  per- 
formance. Performance  of  the  principal  obligation,  or  an 
offer  of  such  performance,  duly  made  as  provided  in  this  code, 
exonerates  a  surety.  [Amendment  approved  1874;  Code 
Amdts.  1873-74,  p.  260.] 

Offer  of  performance:   Ante,  §§  1485-1505. 

Legislation  §  2839.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft  N  Y  Civ.  Code,  §  1563),  and  then  read:  "Performance  of  the 
principal    obligation,    or   an    offer    of    such    performance,    duly    made, 


§  2846  CIVIL  CODE,  718 

whether  by  the  principal  or  by  another  person,  exonerates  a  surety." 
2.  Amended  by  Code  Amdts/l873-74,  p.  260. 

§  2840.     Surety  discharged  by  certain  acts  of  the  creditor. 

A  surety  is  exonerated — 

1.  In  like  manner  with  a  guarantor ; 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of 
the  creditor  which  would  naturally  prove  injurious  to  the 
remedies  of  the  surety  or  inconsistent  with  his  rights,  or  which 
lessens  his  security ;  or,  , 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission  of 
the  creditor  to  do  anything,  when  required  by  the  surety, 
which  it  is  his  duty  to  do. 

Subd.  1.     Ante,  §  2S19. 
Subd.  3.     Post,  §  2S4.5. 

Legislation  §  28i0.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1564. 

ARTICLE  ni. 

Rights  of  Sureties. 

§  2844.  Surety  has  rights  of  guarantor. 

§  2845.  Surety   may   require   the   creditor   to   proceed   against   the   prin- 
cipal. 

§  2846.  Surety  may  compel  principal  to  perform  obligations,  when  due. 

§  2847.  A  principal  bound  to  reimburse  his  surety. 

§  2848.  The  surety  acquires  the  right  of  the  creditor. 

§  2849.  Surety  entitled  to  benefit  of  securities  held  by  creditor. 

§  2S50.  The  property  of  principal  to  be  taken  first. 

§  2844.  Surety  has  rights  of  guarantor.  A  surety  has  all 
the  rights  of  a  guarantor,  v.hetlier  he  become  personally 
responsible  or  not. 

See  ante,  §§  2808-2810. 

Legislation  §  2844.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1565. 

§  2845.  Surety  may  require  the  creditor  to  proceed  against 
the  principal.  A  surety  may  require  his  creditor  to  proceed 
against  the  principal,  or  to  pursue  any  other  remedy  in  his 
power  which  the  surety  cannot  himself  pursue,  and  which 
would  lighten  his  burden;  and  if  in  such  case  the  creditor 
neglects  to  do  so,  the  surety  is  exonerated  to  the  extent  to 
which  he  is  thereby  prejudiced. 

Mere    delay   by   creditor   to   pursue   principal   does   not   dischaxgej 

surety:  Ante,  §  2823.     See  also,  ante,  §  2S40,  subd.  1. 

Legislation  §  2845.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

X.  Y.  Civ.  Code,  §  1566. 

§  2846.  Surety  may  compel  principal  to  perform  obliga- 
tions, v^hen  due.  A  surety  may  compel  his  principal  to  per- 
form the  obligation  Avhen  due. 


719  RIGHTS  OF  SURETIES  AND  OF  CREDITORS.  §  2854 

Action  under  this  section  provided  for:  Code  Civ.  Proc,  §  1650. 

Substitute  for  the  equitable  action.  §  2845,  ante,  may  be  consid- 
ered as  containing  another  substitute  for  the  equitable  action. 

Legislation  §  2846.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1567. 

§  2847.     A  principal  bound  to  reimburse  his  surety.     If  a 

surety  satisfies  the  principal  obligation,  or  any  part  thereof, 
whether  Avith  or  without  legal  proceedings,  the  principal  is 
bound  to  reimburse  what  he  has  disbursed,  including  necessary 
costs  and  expenses ;  but  the  surety  has  no  claim  for  reimburse- 
ment against  other  persons,  though  they  may  have  been 
benefited  by  his  act,  except  as  prescribed  by  the  next  section. 
Legislation  §  2847.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1568. 

§2848.     The  surety  acquires  the  right  of  the  creditor.     A 

surety,  upon  satisfying  the  obligation  of  the  principal,  is  en- 
titled to  enforce  every  remedy  which  the  creditor  then  has 
against  the  principal  to  the  extent  of  reimbursing  what  he  has 
expended,  and  also  to  require  all  his  co-sureties  to  contribute 
thereto,  without  regard  to  the  order  of  time  in  which  they 
became  such. 

Subrogation  of  surety  paying:  See  Code  Civ.  Proc,  §§  709,  1059. 

Legislation  §  2848.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1569. 

§2849.  Surety  entitled  to  benefit  of  securities  held  by 
creditor.  A  surety  is  entitled  to  the  benefit  of  every  security 
for  the  performance  of  the  principal  obligation  held  by  the 
creditor,  or  by  a  co-surety  at  the  time  of  entering  into  the  con- 
tract of  suretyship,  or  acquired  by  him  afterwards,  whether 
the  surety  was  aware  of  the  security  or  not. 

Legislation  §  2849.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1570. 

§  2850.     The  property  of  principal  to  be  taken  first.     AVhen- 

ever  property  of  a  surety  is  hypothecated  with  property  of  the 
principal,  the  surety  is  entitled  .to  have  the  property  of  the 
principal  first  applied  to  the  discharge  of  the  obligation. 

Legislation  §  2850.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1571. 

ARTICLE  IV. 

Rights   of   Creditors. 

§  2854.     Creditor  entitled  to  benefit  of  securities  held  by  surety. 

§2854.  Creditor  entitled  to  benefit  of  securities  held  by 
surety.  A  creditor  is  entitled  to  the  benefit  of  everything 
iphich  a  surety  has  received  from  the  debtor  by  way  of  so- 


§  2862  .  CIVIL  CODE.  720 

curity  for  the  performance  of  the  obligation,  and  may,  upon 
the  maturity  of  the  obligation,  compel  the  application  of  such 
security  to  its  satisfaction. 

Legislation  §  2854.     Enacted  March  21,  1872;  bascl  on  Field's  Draft, 
jST.  Y.  Civ.  Code,  §  1572. 

AETICLE   V. 

Letter  of  Credit. 

§  2858.  Letter  of  credit,  what. 

§  2859.  How  addressed. 

§  2860.  Liability  of  the  writer. 

§  2861.  Letters  of  credit  either  general  or  special. 

§  2862.  Nature  of  general  letter  of  credit. 

§  2863.  Extent  of  general  letter  of  credit. 

§  2864.  A  letter  of  credit  may  be  a  continuing  guaranty. 

§  2865.  When  notice  to  the  writer  necessary. 

§  2866.  The  credit  given  must  agree  with  the  terms  of  the  letter. 

§  2858.  Letter  of  credit,  what.  A  letter  of  credit  is  a  writ- 
ten instrument,  addressed  by  one  person  to  another,  requesting 
the  latter  to  give  credit  to  the  person  in  whose  favor  it  is 
drawn. 

Legislation  §  2858.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1573. 

§  2859.  How  addressed.  A  letter  of  credit  may  be  ad- 
dressed to  several  persons  in  succession. 

Legislation  §  2859.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1574. 

§  2860.  Liability  of  the  writer.  The  writer  of  a  letter  of 
credit  is,  upon  the  default  of  the  debtor,  liable  to  those  who 
gave  credit  in  compliance  with  its  terms. 

Legislation  §  2860.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

K  Y.  Civ.  Code,  §  1575. 

§  2861.  Letters  of  credit  either  general  or  special.  A  letter 
of  credit  is  either  general  or  special.  When  the  request  for 
credit  in  a  letter  is  addressed  to  specified  persons  by  name  or 
description,  the  letter  is  special.  All  other  letters  of  credit 
are  general. 

Credit  to  correspond  with  terms  of  letter:  See  post,  §  2866. 
Legislation  §  2861.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1576. 

§  2862.  Nature  of  general  letter  of  credit.  A  general  let- 
ter of  credit  gives  any  person  to  Avhom  it  may  be  shown  au- 
thority to  comply  with  its  request,  and  by  his  so  doing  it 
becomes,  as  to  him,  of  the  same  effect  as  if  addressed  to  him 
by  name. 

Legislation  §  2862.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1577. 


721  LETTERS  OF  CREDIT.  §  2866 

§  2863.  Extent  of  general  letter  of  credit.  Several  persons 
may  successively  give  credit  upon  a  general  letter. 

Legislation  §  2863.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1578. 

§  2864.    A  letter  of  credit  may  be  a  continuing'  guaranty.     If 

the  parties  to  a  letter  of  credit  appear,  by  its  terms,  to  contem- 
plate a  course  of  future  dealing  between  the  parties,  it  is  not 
exhausted  by  giving  a  credit,  even  to  the  amount  limited  by 
the  letter,  which  is  subsequently  reduced  or  satisfied  by  pay- 
ments made  by  the  debtor,  but  is  to  be  deemed  a  continuing 
guaranty. 

Legislation  §  2864.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1579. 

§  2865.  When  notice  to  the  writer  necessary.  The  writer 
of  a  letter  of  credit  is  liable  for  credit  given  upon  it  without 
notice  to  him,  unless  its  terms  express  or  imply  the  necessity 
of  giving  notice. 

Legislation  §  2865.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1580. 

§  2866.  The  credit  given  must  agree  with  the  terms  of  the 
letter.  If  a  letter  of  credit  prescribes  the  persons  by  whom, 
or  the  mode  in  which,  the  credit  is  to  be  given,  or  the  term  of 
credit,  or  limits  the  amount  thereof,  the  writer  is  not  bound 
except  for  transactions  which,  in  these  respects,  conform 
strictly  to  the  terms  of  the  letter. 

Legislation  §  2866.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1581. 
Civ.  Code — 46 


i  2874  CIVIL  CODE.  722 

TITLE  XIV. 
Lien. 

Chapter  I.  Liens  in  General.     Articles  I-VI.     §§  2872-2913. 

II.  Mortgage.     Articles  I-III.     §§  2920-2973. 

III.  Pledge.     §§  29S6-3011. 

IV.  Bottomry.     §§  3017-3029. 

V.  Eespondentia.     §§3036-3040. 

VI.  Other  Liens.     §§  3046-3065. 

VII.     Stoppage  in  Transit.     §§  3076-3080. 

CHAPTER  I. 

Liens  in  General. 

Article  I.  Definition  of  Liens.     §§2872-2877. 

n.  Creation  of  Liens.     §§  2881-2884. 

in.  Effect  of  Liens.     §§  2888-2892. 

IV.  Priority  of  Liens.     §§2897-2899. 

V.  Eedemiption  from  Liens.     §§  2903-2905. 

VI.  Extinction  of  Liens.     §§  2909-2913. 

AETICLE  L 

Definition  of  Liens. 

§  2872.  Lien,  what. 

§  2873.  Liens,  general  or  special. 

§  2874.  General  lien,  what. 

§  2875.  Special  lien,  what. 

§  2876.  Prior  liens. 

§  2877.  Contracts  subject  to  provisions  of  this  chapter. 

§  2872.  Lien,  what.  A  Fieii  is  a  charge  imposed  in  some 
mode  other  than  by  a  transfer  in  trnst  upon  specific  property 
by  which  it  is  made  security  for  the  performance  of  an  act. 
[Amendment  approved  1878;  Code  Amdts.  1877-78,  p.  88.] 

Compare  Code  Civ.  Proc,  §  1180. 

Unclaimed  property,  rights  in  relation  to;  See  Pol.  Code,  §§  3152  et 
seq. 

Legislation  §  2872.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  K  Y.  Civ.  Code,  §  1582),  and  then  read:  "A  lien  is  a  charge  im- 
posed upon  specific  property,  by  which  it  is  made  security  for  the  per- 
formance of  an  act." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  88. 

§  2873.  Liens,  general  or  special.  Liens  are  either  general 
or  special. 

Legislation  §  2873.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1583. 

§  2874.  General  lien,  what.  A  general  lien  is  one  which  the 
holder  thereof  is  entitled  to  enforce  as  a  security  for  the  per- 


723  LIENS  IN  GENERAL.      CREATION  OF.  §  2882 

formance  of  all  the  obligations,  or  all  of  a  particular  class  of 
obligations,  which  exist  in  his  favor  against  the  owner  of  the 
property. 

Factors.  Usage  of  trade  usually  gives  factors  a  general  lien,  which 
is  established  in  this  state  by  §  3053,  post. 

Banker:   Post,  §  3054. 

Master  of  ship:  Post,  §  3055. 

Mate  and  seamen:  Post,  §  3056. 

Lien  for  services:  See  post,  §  3051. 

Legislation  §  2874.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1584. 

§  2875.  Special  lien,  what.  A  special  lien  is  one  which  the 
holder  thereof  can  enforce  only  as  security  for  the  perform- 
ance of  a  particular  act  or  obligation,  and  of  such  obligations 
as  may  be  incidental  thereto. 

.  Rights  where  prior  lien  discharged:  See  post,  §  2876. 
Legislation  §  2875.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1585. 

§  2876.     Prior  liens.     Where  the  holder  of  a  special  lien  is 
compelled  to  satisfy  a  prior  lien  for  his  own  protection,  he 
may  enforce  payment  of  the  amount  so  paid  by  him,  as  a  part 
of  the  claim  for  which  his  own  lien  exists. 
Legislation  §  2876.     Enacted  March  21,  1872, 

§  2877.     Contracts   subject  to   provisions   of  this   chapter. 

Contracts  of  mortgage,  pledge,  bottomry,  or  respondentia,  are 
subject  to  all  the  provisions  of  this  chapter. 

Legislation  §  2877.     Enacted  March  21,  1872;  based  ou  Field's  Draft,  . 
N.  Y.  Civ.  Code,  §  1586. 

AETICLE  II. 

Creation  of  Liens. 

§  2881.  Lien,  how  created. 

§  2882.  No  lien  for  cMm  not  due. 

§  2883.  Lien  on  future  interest. 

§  2884.  Lien  may  be  created  by  contract. 

§  2881.     Lien,  how  created.     A  lien  is  created : 

1.  By  contract  of  the  parties ;  or, 

2.  By  operation  of  law. 

Legislation  §  2881.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1587. 

§  2882.  No  lien  for  claim  not  due.  No  lien  arises  by  mere 
operation  of  law  until  the  time  at  which  the  act  to  be  secured 
thereby  ought  to  be  performed. 

Legislation  §  2882.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1588. 


§  2891  CIVIL  CODE.  724 

§  2883.  Lien  on  future  interest.  An  agreement  may  be 
made  to  create  a  lien  upon  property  not  yet  acquired  by  the 
party  agreeing  to  give  the  lien,  or  not  yet  in  existence.  In 
such  case  the  lien  agreed  for  attaches  from  the  time  Avhen  the 
party  agreeing  to  give  it  acquires  an  interest  in  the  thing,  to 
the  extent  of  such  interest. 

Legislation  §  2883.     Enacted  Marcli  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1589. 

§  2884.     Lien  may  be  created  by  contract.     A  lien  may  be 

created  by  contract,  to  take  immediate  effect,  as  security  for 
the  performance  of  obligations  not  then  in  existence. 

Legislation  §  2884.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1590. 

ARTICLE  III. 
Effect  of  Liens. 

§  2888.  Lien,  or  contract  for  lien,  transfers  no  title. 

§  2889.  Certain  contracts  void. 

§  2890.  Creation  of  lien  does  not  imply  personal  obligation. 

§  2891.  Extent  of  lien. 

§  2892.  Holder  of  lien  not  entitled  to  compensation. 

§  2888.     Lien,  or  contract  for  lien,  transfers  no  title.     Not- 
withstanding an  agreement  to  the  contrary,  a  lien,  or  a  contract 
for  a  lien,  transfers  no  title  to  the  property  subject  to  the  lien. 
Mortgage  gives  no  right  to  possession:  Post,  §  2927. 
Legislation  §  2888.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1591. 

§  2889.  Certain  contracts  void.  All  contracts  for  the  for- 
feiture of  property  subject  to  a  lien,  in  satisfaction  of  the 
obligation  secured  thereby,  and  all  contracts  in  restraint  of  the 
right  of  redemption  from  a  lien,  are  void. 

Legislation  §  2889.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1592. 

§  2890.     Creation  of  lien  does  not  imply  personal  obligation. 

The  creation  of  a  lien  does  not  of  itself  imply  that  any  person 
is  bound  to  perform  the  act  for  which  the  lien  is  a  security. 
See  post,  §§2909,  2928,  3000. 

Legislation  §  2890.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1593. 

§  2891.  Extent  of  lien.  The  existence  of  a  lien  upon  prop- 
erty does  not  of  itself  entitle  the  person  in  whose  favor  it  ex- 
ists to  a  lien  upon  the  same  property  for  the  performance  of 
any  other  obligation  than  that  which  the  lien  originally 
secured. 

Legislation  §  2891.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1591. 


725  PRIORITY  OP  LIENS.  §  2899 

§  2892.     Holder  of  lien  not  entitled  to  compensation.     One 

Avho  holds  property  by  virtue  of  a  lien  thereon,  is  not  entitled 
to  compensation  from  the  owner  thereof  for  any  tronble  or 
expense  Avhieh  he  incurs  respecting  it,  except  to  the  same  extent 
as  a  borrower,  under  sections  eighteen  hundred  and- ninety-two 
and  eighteen  hundred  and  ninety-three. 

Legislation  § '2892.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1595. 

ARTICLE  IV. 

Priority    of    Liens. 

§  2897.     Priority  of  liens. 

§  2898.     Priority  of  mortgage  for  price. 

§  2899.     Order  of  resort  to  different  funds. 

§  2897.  Priority  of  liens.  Other  things  being  equal,  differ- 
ent liens  upon  the  same  property  have  priority  according  to  the 
time  of  their  creation,  except  in  cases  of  bottomry  and  re- 
spondentia'. 

Priority  between  'bottomry  liens:  See  post,  §  3029. 
Respondentia  is  subject  to  law  on  liens:  See  ante,  §  2877. 
Legislation  §  2897.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1597. 

§  2898.     Priority  of  mortg^age  for  price.     A  mortgage  given 

for  the  price  of  real  property,  at  the  time  of  its  conveyance, 

has  priority  over  all  other  liens  created  against  the  purchaser, 

subject  to  the  operation  of  the  recording  laws. 

Legislation  §  2898.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1598. 

§  2899.  Order  of  resort  to  different  funds.  Where  one  has 
a  lien  upon  several  things,  and  other  persons  have  subordinate 
liens  upon,  or  interests  in,  some  but  not  all  of  the  same  things, 
the  person  having  the  prior  lien,  if  he  can  do  so  without  risk  of 
loss  to  himself,  or  of  injustice  to  other  persons,  must  resort  to 
the  property  in  the  following  order,  on  the  demand  of  any 
party  interested : 

1.  To  the  things  ur>on  Avhich  he  has  an  exclusive  lien: 

2.  To  the  things  which  are  subject  to  the  fewest  subordinate 
liens; 

3.  In  like  manner  inversely  to  the  number  of  subordinate 
liens  upon  the  same  thing;  and, 

4.  When  several  things  are  within  one  of  the  foregoing 
classes,  and  subject  to  the  same  number  of  liens,  resort  must  be 
had— 

(1.)  To  the  tilings  Avhich  have  not  been  transferred  since  the 
prior  lien  was  created; 

(2.)  To  the  things  whicli  liavo  been  so  transferred  without  a 
valuable  consideration  ;  and, 


§  2905  CIVIL  CODE.  726 

(3.)  To  the  things  which  have  been  so  transferred  for  a 
valuable  consideration  in  the  inverse  order  of  the  transfer. 
Marshaling  of  assets:  See  post,  §  3433. 

Legislation  §  2899.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1599. 

AETICLE  V. 

Bedemptlon  from  Liens. 

§  2903.     Right    to    redeem.     Subrogation. 

§  2904.     Eights  of  inferior  lienor. 

§  2905.     Eedemjition  from  lien,  how  made. 

§  2903.  Right  to  redeem.  Subrogation.  Every  person,  hav- 
ing an  interest  in  property  subject  to  a  lien,  has  the  right  to 
redeem  it  from  the  lien,  at  any  time  after  the  claim  is  due, 
and  before  his  right  of  redemption  is  foreclosed,  and,  by  such 
redemption,  becomes  subrogated  to  all  the  benefits  of  the  lien, 
as  against  all  owners  of  other  interests  in  the  property,  except 
in  so  far  as  he  was  bound  to  make  such  redemption  for  their 
benefit.     [Amendment  approved  1905;  Stats.  1905,  p.  617.] 

•  Redemption  from  execution  sale:  See  Code  Civ.  Proc,  §§  346,  347,  701 
et  seq. 

Pledgor's  right  of  redemption  may  be  foreclosed:  Post,  §  3011. 

Legislation  §  2903.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1600),  and  then  ended  with  the  words  "re- 
demption is  foreclosed." 

2.  Amendment  by  Stats.  1901,  p.  417;  unconstitutional.     See  note,  §  4^  ^: 
ante. 

3.  Amended  by  Stats.  1905,  p.  617;  the  code  commissioner  saying, 
"The  change  consists  in  the  addition  of  the  clause  after  the  word  'fore- 
closed.' The  design  of  the  amendment  is  to  state  and  apply  the  rule 
of  equity  in  such  cases,  it  being  feared  that  the  declaration  of  a  similar 
rule  in  §  2904,  and  its  omission  in  this  section  might  lead  to  doubt." 

§  2904.  Rights  of  inferior  lienor.  One  who  has  a  lien  in- 
ferior to  another,  upon  the  same  property,  has  a  right : 

1.  To  redeem  the  property  in  the  same  manner  as  its  owner 
might,  from  the  superior  lien ;  and, 

2.  To  be  subrogated  to  all  the  benefits  of  the  superior  lien,  ^ 
when  necessary  for  the  protection  of  his  interests,  upon  satisfy- 
ing the  claim  secured  thereby. 

Legislation  §  2904.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1601. 

§  2905.     Redemption    from    lien,    how    made.     Redemption 

from  a  lien  is  made  by  performing,  or  offering  to  perform,  the 
act  for  the  performance  of  which  it  is  a  security,  and  paying, 
or  offering  to  pay,  the  damages,  if  any,  to  which  the  holder  of 
the  lien  is  entitled  for  delay. 

Legislation  §  2905.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1602. 


727  EXTINCTION   OF  LIENS.  §  2913 

AETICLE  VI. 

Extinction  of  Liens. 

§  2909.  Lien  deemed  accessory  to  the  act  whose  performance  it  secures. 

§  2910.  Extinction  by  sale  or  conversion. 

§  2911.  Lien  extinguished  by  lapse  of  time  under  statute  of  limitations. 

§  2912.  Apportionment  of  lien. 

§  2913.  When  restoration  extinguishes  lien. 

§  2909.  Lien  deemed  accessory  to  the  act  whose  performance 
it  secures.  A  lien  is  to  be  deemed  accessory  to  the  act  for  the 
performance  of  which  it  is  a  security,  whether  any  person  is 
bound  for  such  performance  or  not,  and  is  extinguishable  in 
like  manner  with  any  other  accessory  obligation. 
Assignment  of  debt;  See  §  2936,  post. 

Legislation  §  2909.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1603. 

§  2910.  Extinction  by  sale  or  conversion.  The  sale  of  any 
property  on  which  there  is  a  lien,  in  satisfaction  of  the  claim 
secured  thereby,  or  in  case  of  personal  proj^erty,  its  wrongful 
conversion  by  the  person  holding  the  lien,  extinguishes  the 
lien  thereon. 

Legislation  §  2910.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1604. 

§  2911.     Lien  extinguished  by  lapse  of  time  under  statute  of 
limitations.     A  lien  is  extinguished  by  the  lapse  of  the  time 
Avithin  which,  under  the  provisions  of  the  Code  of  Civil  Pro- 
cedure, an  action  can  be  brought  upon  the  principal  obligation. 
Limitation  of  actions:  See  Code  Civ.  Proc,  §§  335-347. 
Legislation  §  2911.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1605. 

§  2912.  Apportionment  of  lien.  The  partial  performance 
of  an  act  secured  by  a  lien  does  not  extinguish  the  lien  upon 
any  part  of  the  property  subject  thereto,  even  if  it  is  divisible. 

Legislation  §  2912.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1606. 

§  2913.  When  restoration  extinguishes  lien.  .The  voluntary 
restoration  of  property  to  its  owner  by  the  holder  of  a  lien 
thereon  dependent  upon  possession  extinguishes  the  lien  as  to 
such  property,  unless  otherwise  agreed  by  the  parties,  and  ex- 
tinguishes it,  notwithstanding  any  such  agreement,  as  to  cred- 
itors of  the  owner  and  persons,  subsequently  acquiring  a  title 
to  the  property,  or  a  lien  thereon,  in  good  faith,  and  for  value. 
[Amendment  approved  1905;  Stats.  1905,  p.  617.] 

Legislation  §  2913.     1.    Enacted   March    21,    1872    (based    on   Field's 
Draft,  N.  Y.  Civ.  Code,  §  1607),  and  then  read:  "The  voluntary  restora- 


§  2920  CIVIL  CODE.  728 

tion  of  property  to  its  owner  by  the  holder  of  a  lien  thereon,  dependent 
upon  possession,  extinguishes  the  lien  as  to  such  property,  unless  other- 
wise agreed  by  the  parties,  and  extinguishes  it,  notwithstanding  any 
such  agreement,  as  to  creditors  of  the  owner  and  persons  acquiring  a 
title  to  the  property,  or  a  lien  thereon,  in  good  faith,  and  for  a  good 
consideration,  unless  such  restoration  is  made  to  the  owner  as  a  mere 
employee  of  the  holder  of  the  lien,  or  for  a  merely  transient  purpose." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  260,  and  then  had  the  words 
"a  good  consideration"  instead  of  "value,"  at  end  of  section. 

3.  Amendment  by  Stats.  1901,  p.  417;  unconstitutional.     See  note,  §  4, 
ante. 

4.  Amended  by  Stats.  1905,  p.  fill,  substituting  "value"  for  "a  good 
consideration,"  at  end  of  section. 


CHAPTER  11. 

Mortgage, 

Article  I.     Mortgages  in  General.     §§2920-2942. 

IT.     Mortgages  of  Eeal  Property.     §§  2947-2952. 
III.     Mortgages    of   Personal    Property.     §§  2955-2973. 

AETICLE  I. 

Mortgages  in  General. 

§  2920.  Mortgage,  what. 

§  2921.  Property  adversely  held  may  be  mortgaged. 

§  2922.  To  be  in  writing. 

§  2923.  Lien  of  a  mortgage,  when  special. 

§  2924.  Transfer  of  interest,  when  a  mortgage  and  when  a  pledge. 

§  2925.  Transfer  made  subject  to  defeasance  may  be  proved. 

§  2926.  Mortgage,  on  what  a  lien. 

§  2927.  Mortgage  does  not  entitle  mortgagee  to  possession. 

§  2928.  Mortgage  not  a  personal  obligation. 

§  2929.  Waste. 

§  2930.  Subsequently  acquired  title  inures  to  mortgagee. 

§  2931.  Foreclosure. 

§  2932.  Power  of  sale. 

§  2933.  Power  of  attorney  to  execute. 

§2934.  Recording  assignment  of  mortgage. 

§  2935.  Recording  assignment  of  mortgage  not  notice  to  mortgagor. 

§  2936.  Mortgage  passes  by  assignment  of  debt. 

§  2937.  Time  allowed  for  filing  mortgage  for  record.     [Repealed.] 

§  2938.  Mortgage,  how  discharged. 

§  2939.  Same. 

§  2939i.  Satisfying  mortgages  by  foreign  executors. 

§  2940.  Certificate  and  record  of  discharge. 

§  2941.  Duty  of  mortgagee  on  satisfaction  of  mortgage. 

§  2942.  Provisions  of  this  chapter  do  not  affect  bottomry  or  respondentia. 

§  2920.  Mortgage,  what.  IMortgage  is  a  contract  by  Avhich 
specific  property  is  hypothecated  for  the  performance  of  an 
act,  withont  the  necessity  of  a  change  of  possession. 

Note.  The  code  substitutes,  instead  of  the  actual  possession  previ- 
ously requisite  on  mortgages  of  personalty,  the  recording  provisions  of 
§§  2957,  2959,  2962,  2963,  2965.  2966. 


2924.  Transfer  of  Interest;  When  a  Mortgage  and  When  a 
Pledge.  Every  transfer  of  an  Interest  in  property  other  than  in 
trust,  made  only  as  a  security  for  the  performance  of  another 
act,  is  to  be  deemed  a  mortgage,  except  when  in  the  case  of 
personal  property  it  is  accompanied  by  actual  change  of  posses- 
sion,   in    which    case    it    is    to    be    deemed    a    pledge. 

[Where,  by  a  mortgage  hereafter  created,  of  any  estate  In  real 
property,  other  than  an  estate  at  wMI  or  for  years,  less  than 
two,  o-r  In  any  transfer  in  trust  hereafter  made  of  a  like  estate 
to  secure  the  performance  of  an  obligation,  a  power  of  sale  is 
conferred  upon  a  mortgagee,  trustee,  or  any  other  person,  to  be 
exercised  after  a  breach  of  the  obligation  for  which  such  mort- 
gage or  transfer  Is  a  security,  such  power  shall  not  be  exercised 
(except  where  such  mortgage  or  transfer  Is  made  pursuant  to  an 
order,  judgment,  or  decree  of  a  court  of  record,  or  to  secure  the 
payment  of  bonds  or  other  evidences  of  Indebtedness  authorized 
or  permitted  to  be  issued  by  the  commissioner  of  corporations,  or 
is  made  by  a  public  utility  subject  to  the  provisions  of  the  public 
utilities  act,)  until,  (a)  the  mortgagee  or  beneficiary  shall  first 
record,  in  the  office  of  the  recorder  of  the  county  wherein  the 
mortgaged  or  trust  property  or  some  part  thereof  is  situated,  a 
notice  of  such  breach  and  of  his  election  to  sell  or  cause  to  be 
sold  such  property  to  satisfy  the  obligation.-  (b)  not  less  than 
three  months  shall  thereafter  elapse;  and  (c)  the  mortgagee, 
trustee  or  other  person  authorized  to  make  the  sale  shall  give 
notice  of  the  time  and  place  thereof,  in  the  manner  and  for  a 
time  not  less  than  that  required  by  law  for  sales  of  real  prop- 
erty upon  execution.!  (In  effect  '.)()  days  from  and  after  April 
27,    1917.     Stat.<.    1!I17,    Chap.    204.)  Civ.    Code,    1917. 


729  MORTGAGES  IN  GENERAL.  §  2925 

Actual  transfer  of  possession  of  personalty  would  change  it  into  a 
pledge:  See  post,  §  2924. 

Legislation  §  2920.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1608. 

§  2921.    Property   adversely  held  may  be   mortgaged.    A 

mortgage  may  be  created  upon  property  held  advei'sely  to  the 
mortgagor. 

Note.  This  provision  is  a  logical  sequence  of  §  2947,  post,  and 
§  1047,  ante. 

Legislation  §  2921.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1614.  - 

§  2922.     To  be  in  writing-.     A  mortgage  can  be  created,  re- 
newed, or  extended,  only  by  writing,  executed  with  the  for- 
malities required  in  the  case  of  a  grant  of  real  property. 
Mortgage,  form  of:  Post,  §  2948. 

Legislation  §  2922.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1623. 

§  2923.  Lien  of  a  mortgage,  when  special.  The  lien  of  a 
mortgage  is  special,  unless  otherwise  expressly  agreed,  and  is 
independent  of  possession. 

Special  lien,  definition:  See  ante,  §    2875. 

Legislation  §  2923.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1609. 

§  2924.  Transfer  of  interest,  when  a  mortg^age  and  when  a 
pledg'e.  Every  transfer  of  an  interest  in  property,  other  than 
in  trust,  made  only  as  a  security  for  the  performance  of  another 
act,  is  to  be  deemed  a  mortgage,  except  Avhen  in  the  case  of 
personal  property  it  is  accompanied  by  actual  change  of  pos- 
session, in  which  case  it  is  to  be  deemed  a  pledge.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  260.] 

Deed  absolute  on  its  face,  when  a  mortgage:  See  post,  §§  2925,  2950. 
Legislation  §  2924.     1.    Enacted    March    21,    1872    (based    on   Field's 
Draft,  N.  Y.  Civ.  Code,  §  1610),  but  did  not  then  have  the  words  "other 
than  in  trust"  in  first  line. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  260. 

§  2925.     Transfer  made  subject  to  defeasance  may  be  proved. 

The  fact  that  a  transfer  Avas  made  sul)joct  to  defeasance  on  a 
condition,  may,  for  the  purpose  of  shoAving  such  transfer  to  be 
a  mortgage,  be  proved  (except  as  against  a  subsequent  pur- 
chaser or  encumbrancer  for  value  and  Avithout  notice),  though 
the  fact  does  not  appear  by  the  terms  of  the  instrument. 

Deed  absolute  on  its  face,  a  mortgage:  See  ante,  §  2924,  and  post, 
§  2950. 

Recording  defeasance:  See  post,  §  2950. 

Legislation  §  2925.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1612. 


§  2931  CIVIL  CODE.  730 

§  2926.  Mortgage,  on  what  a  lien.  A  mortgage  is  a  lien 
upon  everything  that  would  pass  by  a  grant  of  the  property. 

Fixtures,  generally:  See  ante,  §  660. 
Growing  crops:  Post,  §  2972. 

Legislation  §  2926.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1617. 

§  2927.     Mortgage  does  not  entitle  mortgagee  to  possession. 

A  mortgage  does  not  entitle  the  mortgagee  to  the  possession 
of  the  property,  unless  authorized  by  the  express  terms  of  the 
mortgage ;  but  after  the  execution  of  the  mortgage  the  mort- 
gagor may  agree  to  such  change  of  possession  without  a  new 
consideration. 

Mortgagee's  possession:  Ante,  §§  2920,  2923. 

Legislation  §  2927.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1620. 

§  2928.  Mortgage  not  a  personal  obligation.  A  mortgage 
does  not  bind  the  mortgagor  personally  to  perform  the  act 
for  the  performance  of  which  it  is  a  security,  unless  there  is  an 
express  covenant  therein  to  that  effect. 

Legislation  §  2928.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1624. 

§  2929.  Waste.  No  person  whose  interest  is  subject  to  the 
lien  of  a  mortgage  may  do  any  act  which  will  substantially 
impair  the  mortgagee's  security. 

Damages  are  recoverable  by  purchaser  at  sale,  for  injuries  by  ten- 
ant: See  Code  Civ.  Proc,  §  746. 

Legislation  §  2929.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1622. 

§  2930.     Subsequently  acquired  title  inures  to  mortgagee. 
Title  acquired  by  the  mortgagor  subsequent  to  the  execution  of 
the  mortgage,  inures  to  the  mortgagee  as  security  for  the  debt 
in  like  manner  as  if  acquired  before  the  execution.     [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  260.] 
Subsequently  acquired  title  passes  by  grant:  Ante,  §  1106. 
Legislation  §  2930.     1.  Enacted  March  21,  1872,  and  then  contained  a 
second  sentence,  reading,  "The  priority  of  application   of  such  subse- 
quently acquired  title  to  successive  mortgagees  is  determined  by  the 
existing  rules  of  priority,  when  no  title  is  subsequently  acquired." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  260. 

§  2931.  Foreclosure,  A  mortgagee  may  foreclose  the  right 
of  redemption  of  the  mortgagor  in  the  manner  prescribed  by 
the  Code  of  Civil  Procedure. 

Foreclosure  of  mortgage.  Place  of  trial:  Code  Civ.  Proc,  §  392.  Re- 
ceiver may  be  appointed:  Id.,  §  564.  Proceeding's  in  actions  for  fore- 
closure: Id.,  §  726.    Remedy  exclusive:  Id.,  §  726.    Surplus,  how  disposed 


731  MORTGAGES  IN  GENERAL.  §  2936 

of:   Ir.,  §  727.     Installment  loans:   Id.,  §  728.    Actions  against  estates: 
Id.,  §  1500. 

Legislation  §  2931.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1621. 

§  2932.     Power  of  sale.     A  power  of  sale  may  be  conferred . 
by  a  mortgage  upon  the  mortgagee  or  any  other  person,  to  be 
exercised  after  a  breach  of  the  obligation  for  which  the  mort- 
gage is  a  security. 

Power  of  sale  is  a  part  of  the  security,  and  passes  by  assignment  of 
the  debt:  Ante,  §  858. 

Legislation  §  2932.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1615. 

§  2933.     Power  of  attorney  to  execute.    A  power  of  attorney 
to  execute  a  mortgage  must  he.  in  writing,  subscribed,  acknowl- 
edged, or  proved,  certified,  and  recorded  in  like  manner  as 
powers  of  attorney  for  grants  of  real  property. 
Authorization,  generally:  See  ante,  §  2309. 
Legislation  §  2933.     Enacted  March  21,  1872. 

§  2934.  Recording'  assignment  of  mortgage.  An  assignment 
of  a  mortgage  may  be  recorded  in  like  manner  as  a  mortgage, 
and  such  record  operates  as  notice  to  all  persons  subsequently 
deriving  title  to  the  mortgage  from  the  assignor.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  261.] 

Legislation  §  2934.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1629),  and  then  read:  "An  assignment  of  a 
mortgage  may  be  recorded  in  like  manner  with  a  mortgage,  but  in  a 
separate  book,  and  such  record  operates  as  notice  to  all  persons  subse- 
quently deriving  title  to  the  mortgage  from  the  assignor." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  261. 

§  2935.  Recording-  assignment  of  mortgage  not  notice  to 
mortgagor.  When  the  mortgage  is  executed  as  security  for 
money  due,  or  to  become  due,  on  a  promissory  note,  bond,  or 
other  instrument,  designated  in  the  mortgage,  the  record  of 
the  assignment  of  the  mortgage  is  not,  of  itself,  notice  to  a 
mortgagor,  his  heirs  or  personal  representatives,  so  as  to  in- 
validate any  payment  made  by  them,  or  either  of  them,  to  the 
person  holding  such  note,  bond,  or  other  instrument.  [Amend- 
ment approved  1874;  Code  Amdts.  1873-74,  p.  261.] 

Legislation  §  2935.     1.  Enacted  March  21,  1872,  and  then  read:  "The 
record  of   the   assignment  of  a  mortgage  is  not  of  itself  notice   to  a 
mortgagor,  his  heirs  or  personal  representatives,  so  as  to  invalidate  anj^ 
payment  made  by  them,  or  either  of  them,  to  the  mortgagee." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  261. 

§  2936.  Mortgage  passes  by  assignment  of  debt.  The  as- 
signment of  a  debt  secured  l)y  mortgage  carries  with  it  the 
security. 


§  2940  CIVIL  CODE.  732 

Legislation  §  2936,     1.  Enacted  March  21,  1872. 

2.  Amendment   bj-   Stats.  1901,   p.   417;    unconstitutional.     See   note, 
§  4,  ante. 

§  2937.  Time  allowed  for  filing  mortgage  for  record,  [Re- 
pealed 1874;  Code  Amdts.  1873-74,  p.- 261.] 

Legislation  §  2937.     1.  Enacted  March  21,  1872. 
2,  Eepealed  by  Code  Amdts.^  1873-74,  p.  261. 

§  2938,  Mortgage,  how  discharged,  A  recorded  mortgage 
may  be  discharged  by  an  entry  in  the  margin  of  the  record 
thereof,  signed  by  the  mortgagee,  or  his  personal  representative 
or  assignee,  acknowledging  the  satisfaction  of  the  mortgage  in 
the  presence  of  the  recorder,  who  must  certify  the  acknowledg- 
ment in  form  substantially  as  follows:  "Signed  and  acknowl- 
edged before  me,  this  — —  day  of ,  in  the  year .     A  B, 

Recorder. ' ' 

Legislation  §  2938.     Enacted  March   21,   1872;   based  on  Conveyance 
Act  1850,  Stats.  1S50,  p.  249,  §  37. 

§  2939.  Same.  A  recorded  mortgage,  if  not  discharged  as 
provided  in  the  preceding  section,  must  be  discharged  upon 
the  record  by  the  officer  having  custody  thereof,  on  the 
presentation  to  him  of  a  certificate  signed  by  the  mortgagee, 
his  personal  representatives  or  assigns,  acknowledged  or 
proved  and  certified  as  prescribed  by  the  chapter  on  "record- 
ing transfers,"  stating  that  the  mortgage  has  been  paid,  sat- 
isfied, or  discharged. 

Legislation  §  2939.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1630;  Conveyance  Act  1850,  Stats.  1850,  p.  249,  §  38. 

§  29391/2-     Satisfying  mortgages  by  foreign  executors.     For- 
eign executors,  administrators  and  guardians  may  satisfy  mort- 
gages upon  the  records   of  any   county  in  this  state,  upon 
producing  and  recording  in  the  office  of  the  county  recorder  of 
the  county  in  which  such  mortgage  is  recorded,  a  duly  certified 
and  authenticated   copy   of  their  letters  testamentary,   or   of 
administration  or  of  guardianship,  and  which  certificate  or 
authentication  shall  also  recite  that  said  letters  have  not  been 
revoked.     [Amendment  approved  1913;  Stats.  1913,  p.  216.] 
Legislation  §  29391/2.     1.  Added  by  Stats.  1895,  p.  28,  and  then  read: 
"Foreign  executors  and  administrators  may  satisf}'  mortgages  upon  the 
records  of  any  county  in  this  state,  upon  producing  and  recording  in 
the  otJfice  of  the  county  recorder  of  the  county  in  which  such  mortgage 
is   recorded,   a  duly  certified   and  authenticated  copy  of   their  letters 
testamentary    or    of    administration,   and    which    certificate    shall    also 
recite  that  said  letters  have  not  been  revoked." 
2.  Amended  by  Stats.  1913,  p.  216. 

§  2940.  Certificate  and  record  of  discharge,  A  certificate  of 
the  discharge  of  a  mortgage,  and  tlio  proof  oi'  acknowledgment 


733  MORTGAGES  IN  GENERAL.  §  2942 

thereof,  must  be  recorded  at  length,  and  a  reference  made  in 
the  record  to  the  book  and  page  where  the  mortgage  is  re- 
corded, and  in  the  minute  of  the  discharge  made  upon  the 
record  of  the  mortgage  to  the  book  and  page  where  the  dis- 
charge is  recorded. 

Legislation  §  2940.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1631;  Conveyance  Act  1850,  Stats.  1850,  p.  249,  §  39. 

§2941.     Duty  of  mortgagee  on  satisfaction  of  mortgage. 

When  any  mortgage  has  been  satisfied,  the  mortgagee  or  his 
assignee  must  immediately,  on  the  demand  of  the  mortgagor, 
execute,  acknowledge,  and  deliver  to  him  a  certificate  of  the 
discharge  thereof,  so  as  to  entitle  it  to  be  recorded,  or  he  must 
enter  satisfaction,  or  cause  satisfaction  of  such  mortgage  to  be 
entered  of  record ;  and  any  mortgagee,  or  assignee  of  sucb 
mortgagee,  who  refuses  to  execute,  acknowledge,  and  deliver 
to  the  mortgagor  the  certificate  of  discharge,  or  to  enter  satis- 
faction, or  cause  satisfaction  of  the  mortgage  to  be  entered, 
as  provided  in  this  chapter,  is  liable  to  the  mortgagor,  or  his 
grantee  or  heirs,  for  all  damages  Avhich  he  or  they  may  sustain 
by  reason  of  such  refusal,  and  shall  also  forfeit  to  him  or  them 
the  sum  of  one  hundred  dollars.  [Amendment  approved  1880 ; 
Code  Amdts.  1880,  p.  11.] 

Legislation  §  2941.  1.  Enacted  March  21,  1872,  and  then  read:  "When 
any  mortgage  has  been  satisfied,  the  mortgagee  or  his  assignee  must 
immediately,  on  demand  of  the  mortgagor,  enter  satisfaction  or  cause 
satisfaction  of  such  mortgage  to  be  entered  of  record;  and  any  mort- 
gagee or  assignee  of  such  mortgagee  who  neglects  or  refuses  to  enter 
satisfaction  of  such  mortgage,  as  is  provided  in  this  chapter,  is  liable 
in  damages  to  such  mortgagor,  or  his  grantee  or  heirs,  in  the  sum  of 
one  hundred  dollars,  to  be  recovered  in  a  civil  action  before  any  court 
of  competent  .iurisdiction." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  261,  to  read:  "When  any 
mortgage  has  been  satisfied,  the  mortgagee  or  his  assignee  must  im- 
mediately, on  demand  of  the  mortgagor,  execute  and  deliver  to  him  a 
certificate  of  the  discharge  thereof,  and  must,  at  the  expense  of  the 
mortgagor,  acknowledge  the  execution  thereof  so  as  to  entitle  it  to  be 
recorded,  or  he  must  enter  satisfaction,  or  cause  satisfaction  of  such 
mortgage  to  be  entered  of  record;  and  any  mortgagee,  or  assignee  of 
such  mortgage,  who  refuses  to  execute  and  deliver  to  the  mortgagor 
the  certificate  of  discharge,  and  to  aclcnowledge  the  execution  thereof, 
or  to  enter  satisfaction  or  cause  satisfaction  to  be  entered  of  the  mort- 
gage, as  provided  in  this  chapter,  is  liable  to  the  mortgagor,  or  his 
grantee  or  heirs,  for  all  damages,  which  he  or  they  may  sustain  by 
reason  of  such  refusal,  and  also  forfeit  to  him  or  them  the  sum  of  one 
hundred  dollars." 

3.  Amended  by  Code  Amdts.  1880,  p.  11. 

§  2942.  Provisions  of  this  chapter  do  not  affect  bottomry  or 
respondentia.  Contracts  of  bottomry  or  respondentia,  al- 
though in  the  nature  of  mortgages,  are  not  affected  by  any  of 
the  provisions  of  this  chapter. 


§  2950  CIVIL  CODE.  734 

Bottomry:   See  post,  §§  3017  et  seq. 
Respondentia:   See  post,  §§  3036  et  seq. 

Legislation  §  2942.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1611. 

ARTICLE  II. 

Mortgages  of  Real  Property. 

§  2947.     What  real  property  may  be  mortgaged. 

§  2948.     Form  of  mortgage. 

§  2949.     What  must  be  recorded  as  a  mortgage.     [Repealed.] 

§  2950.     Defeasance,    to    affect    grant    absolute    on    its    face,    must    be 

recorded. 
§  2951.     By    whom    paid    after    property    passes    by    succession    or    will. 

[Repealed.] 
§  2952.     May  be  recorded. 

§  2947.  What  real  property  may  be  mortgaged.  Any  inter- 
est in  real  property  which  is  capable  of  being  transferred  may 
be  mortgaged. 

Possibilities:   See  ante,  §  1045. 

Property  held  adversely  may  be  mortgaged:  Ante,  §  2921. 
Legislation  §  2947.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1613. 

§  2948.  Form  of  mortgage.  A  mortgage  of  real  property 
may  be  made  in  substantially  the  following  form : 

This  mortgage,  made  tlie day  of ,  in  the  year , 

by  A  B,  of ,  mortgagor,  to  C  D.  of mortgagee,  wit- 

nesseth : 

That  the  mortgagor  mortgages  to  the  mortgagee  [here 
describe  the  property],  as  security  for  the  payment  to  him  of 

dollars,  on  [or  before]  the day  of ,  in  the  year 

,  Avith  interest  thereon  [or  as  security  for  the  payment  of 

an  obligation,  describing  it,  etc.]      A.  B. 

Deed  absolute  in  form  construed  as  a  mortgage:   See  ante,  §§  2924, 
2925,  and  post,  §  2950. 

Form  of  mortgage  of  personal  property:   See  post,  §  2956. 
Legislation  §  2948.     Enacted  March  21,  1872. 

§  2949.     What  must  be  recorded  as  a  mortgage.     [Repealed 

1874;  Code  Amdts.  1873-74,  p.  2(i2.] 

Legislation  §  2949.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  262. 

§  2950.  Defeasance,  to  affect  grant  absolute  on  its  face,  must 
be  recorded.  AYhen  a  grant  of  real  property  purports  to  be  an 
absolute  conveyance,  but  is  intended  to  be  defeasible  on  the 
performance  of  certain  conditions,  such  grant  is  not  defeated 
or  affected  as  against  any  person  other  than  the  grantee  or  his 
heirs  or  devisees,  or  persons  having  actual  notice,  -unless  an 
instrument  of  defeasance,  duly  executed  and  acknowledged, 


735  MORTGAGES  OF  PERSONAL  PROPERTY.  §  2955 

shall  have  been  recorded  in  the  office  of  the  county  recorder  of 
the  county  where  the  property  is  situated. 

Unrecorded  instrument  valid  between  parties:  See  ante,  §  1217, 
Deed  absolute  on  its  face,  when  a  mortgage:  See  ante,  §§  2924,  2925. 
Legislation  §  2950.     Enacted  March  21,  1872. 

§  2951.     By  whom  paid  after  property  passes  by  succession 
or  will.      [Repealed  1874;  Code  Amdts.  1873-74,  p.  262.] 
Legislation  §  2951.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  262. 

§  2952.  May  be  recorded.  Mortgages  of  real  property  may 
be  acknowledged  or  proved,  certified  and  recorded,  in  like 
manner  and  with  like  effect,  as  grants  thereof.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  262.] 

Recording  of  instruments:  See  ante,  §§  1169-1172,  1213-1217. 

Fees  for  acknowledgment  and  recording:  Pol.  Code,  §§  798,  4131, 
4141. 

Mortgages  recorded  in  separate  set  of  books:  Ante,  §  1171. 

Legislation  §  2952.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1626),  then  having  at  end  of  section  a  clause 
reading,  "but  they  must  be  recorded  in  books  kept  for  mortgages  of 
real  property  exclusively." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  262. 

ARTICLE  III. 
Mortgage  of  Personal  Property. 

§  2955.  What  personal  property  may  be  mortgaged. 

§  2956.  Form  of  personal  mortgage. 

§  2957.  When  void  as  to  third  persons. 

§  2958.  Mortgage  of  ships,  when  void  as  to  third  persons. 

§  2959.  Mortgage  of  personal  property,  where  recorded. 

§  2960.  Property  in  transit,  where  to  be  recorded. 

§  2961.  Property  of  a  common  carrier,  where  to  be  recorded. 

§  2962.  Recorded  in  different  places. 

§  2963.  Personal  mortgage  may  be  recorded. 

§  2964.  Certified  copies  may  be  recorded,  when. 

§  2965.  Mortgaged  personal  property,  effect  of  removal. 

§  2966.  May  be  taken  by  mortgagee  as  a  pledge,  when. 

§  2967.  How  foreclosed. 

§  2968.  Mortgage  property  may  be  levied  upon. 

§  2969.  Limitations  on  right  of  levy. 

§  2970.  Distribution  of  proceeds  of  sale  under  process. 

§  2971.  Certain  sections  not  applicable  to  mortgage  of  certain  ships. 

§  2972.  Continuance  of  lien  of  mortgage  on  crops.  • 

§  2973.  Validity  of  certain  mortgages. 

§  2955.  What  personal  property  may  be  mortgaged.  Mort- 
gages niay  be  made  upon  all  growing  crops,  including  grapes 
and  fruit,  and  upon  any  and  all  kinds  of  personal  property,  ex- 
cept the  f olloAving : 

1.  Personal  property  not  capable  of  manual  delivery ; 

2.  Articles  of  wearing-apparel  and  personal  adornment ; 


§  2955  CIVIL  CODE.  736 

3.  The  stock  in  trade  of  a  merchant.      [Amendment  approved 
1909;  Stats.  1909,  p.  34.] 

Further  chattel  mortgage  is  larceny:  See  Pen.  Code,  §  538. 

Legislation  §  2955.  1.  Enacted  March  21.  1872,  and  read:  "Mortgages 
may  be  made  upon:  1.  Locomotives,  engines,  and  the  other  rolling- 
stock  of  a  railroa'd;  2.  Steamboat  machinery  and  machinery  used  by 
machinists,  foundrymen,  and  mechanics;  3.  Steam  engines  and  boilers; 

4.  Mining  machinery;  .5.  Printing  presses  and  material;  6.  Professional 
libraries;  7.  Instruments  of  a  surgeon,  physician,  or  dentist;  8.  Uphol- 
stery and  furniture  used  in  hotels  or  boarding-houses,  when  mortgaged 
to  secure  the  purchase-money  of  the  articles  mortgaged;  9.  Growing 
crops;  10.  Vessels  of  more  than  five  tons  burden." 

2.  Amended  by  Code  Amdts.  1875-76,  p.  79,  to  read:  "Mortgages  may 
be  made  upon,  first,  locomotives,  engines,  and  other  rolling-stock  of  a 
railroad;  second,  steamboat  machinery,  the  machinery  used  by  ma- 
chinists, foundrymen  and  mechanics;  third,  steam  engines  and  boilers; 
fourth,  mining  machinery;  fifth,  printing  presses  and  material;  sixth, 
professional  libraries;  seventh,  instruments  of  a  surgeon,  physician,  or 
dentist;  eighth,  upholstery  and  furniture  used  in  hotels,  lodging  or 
boarding-houses,  when  mortgaged  to  secure  the  purchase-money  of  the 
articles  mortgaged;  ninth,  growing  crops;  tenth,  vessels  of  more  than 
five  tons  burthen;  eleventh,  instruments,  negatives,  furniture,  and  fix- 
tures of  a  photograph-gallery." 

3.  Amended  by  Code  Amdts.  1877-78,  p.  88.  to  read:  "Mortgages  may 
be  made  upon:  One — Locomotives,  engines,  and  other  rolling-stock  of  a 
railroad.  Two — Steamboat  machinery,  the  machinery  used  by  machin- 
ists, foundrymen,  and  mechanics.  Three — Steam  engines  and  boilers. 
Four — Mining  machinery.  Five — Printing  presses  and  material.  Six — 
Professional  libraries.  Seven — Instruments  of  a  surveyor,  physician, 
or  dentist.  Eight — Upholstery  and  furniture  used  in  hotels,  lodging 
or  boarding  houses,  when  mortgaged  to  secure  the  purchase-money  of 
the  articles  mortgaged.  Nine — Growing  crops.  Ten — Vessels  of  more 
than  five  tons  burden.  Eleven — Instruments,  negatives,  furniture,  and 
fixtures  of  a  photograph-gallery.  Twelve — The  machinery,  casks,  pipes, 
tubs,  and  utensils  used  in  the  manufacture  of  wine,  fruit-brandy,  and 
fruit-syrup,  or  sugar." 

4.  Amended  by  Stats.  1887,  p.  5,  to  read:  "Mortgages  may  be  made 
upon:  First — Locomotives,  engines,  and  other  stock  of  a  railroad.  Sec- 
ond— Steamboat  machinery,  the  machinery  u.sed  by  machinists,  foun- 
drymen, and  mechanics.  Third — Steam  engines  and  boilers.  Fourth — 
Mining  machinery.  Fifth — Printing  presses  and  material.  Sixth — ■ 
Profes.sional  libraries.  Seventh — Instruments  of  surveyors,  physicians, 
or  dentists.  Eighth — Upholstery  and  furniture  used  in  hotels,  lodging 
or  hoarding  houses,  when  mortgaged  to  secure  the  purchase-money  of 
the  articles  mortgaged.  Ninth — Growing  crops.  Tenth — Vessels  of 
more  than  five  tons  burden.  Eleventh — Instruments,  negatives,  furni- 
ture, and  fixtures  of  a  photograph-gallery.  Twelfth — The  machinery, 
casks,  pipes,  tubes,  and  utensils  used  in  the  manufacture  or  storage 
of  wine,  fruit-brandy,  fruit-syrups,  or  sugar;  also,  wines,  fruit-brandy, 
fruit-syrup,  or  sugar,  with  the  cooperage  in  which  the  same  is  con- 
tained.    Thirteenth — Pianos  and  organs." 

5.  Amended  by  Stats.  1893,  p.  84,  to  read:  "Mortgages  may  be  made 
upon:  First — Locomotives,  engines,  and  other  stock  of  a  railroad. 
Second — Steamboat  machinery,  the  machinery  used  by  machinists,  foun- 
drymen, and  mechanics.  Third — Steam  engines  and  boilers.  Fourth — 
Mining  machinery.  Fifth — Printing  presses  and  material.  Sixth — Pro- 
fessional libraries.     Seventh — Instruments  of  surveyors,  physicians,  or 


737  MORTGAGES  OF  PERSONAL  PROPERTY.  §  2955 

dentists.  Eighth — Uiiholstery  and  furniture  used  in  hotels  and  lodging 
houses.  Ninth — Oil-paintings,  pictures,  and  works  of  art.  Tenth — All 
growing  crops,  including  grapes  and  fruit.  Eleventh — Vessels  of  more 
than  five  tons  burden.  Twelfth — Instruments,  negatives,  furniture, 
and  fixtures  of  a  photograph-gallery.  Thirteenth — The  machinery, 
casks,  pipes,  tubes,  and  utensils  used  in  the  manufacture  or  storage  of 
wine,  fruit-brandy,  fruit-syrups,  or  sugar;  also  wines,  fruit-brandy, 
fruit-syrup,  or  sugar,  with  the  cooperage  in  which  the  same  is  con- 
tained. Fourteenth — Pianos  and  organs.  Fifteenth — Iron  and  steel 
safes.  Sixteenth — ISTeat  cattle,  horses,  mules,  swine,  and  sheep,  and 
the  increase  thereof." 

6.  Amended  by  Stats.  1895,  p.  57,  to  read:  "Mortgages  may  be  made 
upon  the  following  personal  property,  and  none  other:  First — Locomo- 
tives, engines,  and  other  rolling-stock  of  a  railroad.  Second — Steam- 
boat machinery,  the  machinery  used  by  machinists,  foundrymen,  and 
mechanics.  Third — Steam  engines  and  boilers.  Fourth — Mining  ma- 
chinery. Fifth — Printing  presses  and  material.  Sixth — Professional 
libraries.  Seventh — Instruments  of  surveyors,  physicians,  or  dentists. 
Eighth — Upholstery,  furniture,  and  household  goods.  Ninth — Oil-paint- 
ings, pictures,  and  works  of  art.  Tenth — All  growing  crops,  including 
grapes  and  fruit.  Eleventh— -Vessels  of  more  than  five  tons  burden. 
Twelfth— Instruments,  negatives,  furniture,  and  fixtures  of  a  photo- 
graph-gallery. Thirteenth — The  machinery,  casks,  pipes,  tubes,  and 
utensils  used  in  the  manufacture  or  storage  of  wine,  fruit-brandy,  fruit- 
syrups,  or  sugar;  also  wines,  fruit-brandy,  fruit-syrup,  or  sugar,  with 
the  cooperage  in  which  the  same  are  contained.  Fourteenth — Pianos 
and  organs.  Fifteenth — Iron  and  steel  safes.  Sixteenth — Neat  cattle, 
horses,  mules,  swine,  and  sheep,  and  the  increase  thereof.  Seventeenth 
— Harvesters,  thrashing  outfits,  hay-presses,  and  farming  implements. 
Eighteenth — Abstract  systems,  books,  maps,  papers,  and  slips  of  search- 
ers of  records." 

7.  Amended  by  Stats.  1897,  p.  95,  (1)  in  subd.  Second,  changing 
"machinists,  foundrymen,  and  mechanics"  to  "machinist,  foundrymen 
and  mechanics"  (probably  a  typographical  blunder) ;  (2)  in  subd. 
Seventh,  changing  "or  dentists"  to  "and  dentists";  (3)  in  subd.  Six- 
teenth, adding  the  word  "goats";  (4)  changing  subd.  Seventeenth  to 
read,  "Harvesters,  thrashing  outfits,  hay-presses,  wagons,  farming  im- 
plements, and  the  equipments  of  a  livery-stable,  including  buggies,  car- 
riages, harness,  robes";  (5)  adding  subd.  Nineteenth,  reading,  "Eaisins 
and  dried  fruits,  ciired  or  in  process  of  being  cured;  also,  all  boxes, 
fruit-graders,  drying-trays,  and  fruit-ladders." 

8.  Amended  by  Stats.  1903,  p.  78,  (1)  in  subd.  Second,  restoring 
"machinist,  foundrymen  and  mechanics"  to  "machinists,  foundrymen, 
and  mechanics";  (2)  in  subd.  Sixteenth,  omitting  "Neat"  before 
"cattle." 

9.  Amended  by  Stats.  1905,  p.  36,  (1)  in  subd.  16,  adding  the  word 
"turkeys";  (2)  adding  subds.  20,  21,  and  22,  which  read,  "20.  Bees  and 
beehives,  apiaries  and  apiary  stock  including  frames,  combs  and  ex- 
tractors, also  honey  at  apiaries.  21.  Machinery,  tanks,  stills,  agita- 
tors, leaches,  and  apparatus  used  in  producing  and  refining  petroleum, 
asphaltum,  fuel-oils,  lubricating  oils  and  greases.  22.  The  bedroom 
furniture,  carpets,  tables,  stoves,  ranges,  cooking  utensils  and  all  fur- 
niture and  equipments  usually  found  in  a  hotel." 

10.  Amended  by  Stats.  1907,  p.  886,  (1)  changing  subd.  5  to  read, 
"5.  Printing  presses  and  material;  all  type-setting  machines,  their 
material  and  accessories";  (2)  adding  subds.  23  and  24,  reading,  "23. 
All  machinery  used  in   the  sawing  and  production  of  lumber,  or  the 

Civ.  Code — 47 


§  2959  CTViL  CODE.  738 

manufacture  of    lumber  into    lumber    products,  also  wagons,  logging- 
trucks,  donkey-engines  and  cables,  chains  and  stretchers,  and  all  tools 
and  appliances  used  in  the  manufacture  of  lumber.     24.  All  furniture, 
fixtures,  bars  and  appurtenances  of  saloons." 
11.  Amended  by  Stats.  1909,  p.  34. 

§  2956.  Form  of  personal  mortgage.  A  mortgage  of  per- 
sonal property  may  be  made  in  substantially  the  folloAving 
form : 

This  mortgage,  made  the day  of ,  in  the  year , 

by  A  B,  of ,  by  occupation  a ,  mortgagor,  to  C  D,  of 

,  by  occupation  a ,  mortgagee,  witnesseth  : 

That  the  mortgagor  mortgages  to  the  mortgagee  [here  de- 
scribe the  property],  as  security  for  the  payment  to  him  of 

dollars,  on  [or  before]  the day  of ,  in  the  year 

,  with  interest  thereon  [or,  as  security  for  the  payment  of 

a  note  or  obligation,  describing  it,  etc.]     A   B. 
Form  of  mortgage  of  real  property:  See  ante,  §  2948. 
Legislation  §  2956.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  Schedule. 

§  2957.  When  void  as  to  third  persons.  A  mortgage  of  per- 
sonal property  is  void  as  against  creditors  of  the  mortgagor 
and  subsequent  purchasers  and  encumbrancers  of  the  property 
in  good  faith  and  for  value,  unless : 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties  thereto 
that  it  is  made  in  good  faith  and  without  any  design  to  hinder, 
delay,  or  defraud  creditors; 

2.  It  is  acknowledged  or  proved,  certified,  and  recorded  in 
like  manner  as  grants  of  real  property. 

Recording:   See  post,  §§  2959-2965. 
Acknowledging  chattel  mortgage:   See  post,  §  2963. 
Legislation  §  2957.     Enacted  March  21,  1872. 

§  2958.     Mortgage  of  ships,  when  void  as  to  third  persons. 

A  mortgage  of  any  vessel  or  part  of  any  vessel  under  the  flag 
of  the  United  States  is  void  as  against  any  person  (other  than 
the  mortgagor,  his  heirs,  and  devisee,  and  persons  having 
actual  notice  thereof)  unless  the  mortgage  is  recorded  in  the 
office  of  the  collector  of  customs  where  such  vessel  is  registered 
or  enrolled. 

Legislation  §  2958.     Enacted  March  21,  1872. 

§  2959.    Mortgage  of  personal  property,  where  recorded.     A 

mortgage  of  personal  property  must  be  recorded  in  the  office  of 
the  county  recorder  of  the  county  in  which  the  mortgagor  re- 
sides, if  the  mortgagor  be  a  resident  of  this  state,  and  it  shall 
also  be  recorded  in  the  county  in  which  the  property  mortgaged 


739  MORTGAGES  OF  PERSONAL  PROPERTY.  §  2964 

is  situated,  or  to  Avliich  it  may  be  removed.  [Amendment  ap- 
proved 1907;  Stats.  1907,  p.  853.] 

Duty  of  recorder:  See  Pol.  Code,  §§  4234  et  seq. 

Record  in  different  places:  See  post,  §  2962. 

Legislation  §  2959.  1.  Enacted  March  21,  1872,  and  then  read:  "A 
mortgage  of  personal  property  must  be  recorded  in  the  oiEce  of  the 
county  recorder  of  the  county  in  which  the  mortgagor  resides,  and  also 
of  the  county  in  which  the  property  mortgaged  is  situated,  or  to  which 
it  may  be  removed." 

2.  Amendment  by  Stats.  1901,  p.  417;  unconstitutional.  See  note,  §  4, 
ante. 

3,  Amended  by  Stats.  1907,  p.  853. 

§  2960.     Property  in  transit,  where  to  be  recorded.     For  the 

purposes  of  this  article  property  in  transit  from  the  possession 
of  the  mortgagee  to  the  county  of  the  residence  of  the  mort- 
gagor, or  to  a  location  for  use,  is,  during  a  reasonable  time  for 
such  transportation,  to  be  taken  as  situated  in  the  county  in 
which  the  mortgagor  resides,  or  Avhere  it  is  intended  to  be  used. 

See  post,  §  2965,  subd.  1. 

Legislation  §  2960.     Enacted  March  21,  1872. 

§  2961.    Property  of  a  common  carrier,  where  to  be  recorded. 

For  a  like  purpose  personal  property  used  in  conducting  the 
business  of  a  common  carrier  is  to  be  taken  as  situated  in  the 
county  in  which  the  principal  office  or  place  of  business  of  the 
carrier  is  located. 

Legislation  §  2961.     Enacted  March  21,  1872. 

§  2962.  Recorded  in  different  places.  A  single  mortgage  of 
personal  property,  embracing  several  things  of  such  character 
or  so  situated  that  by  the  provisions  of  this  article  separate 
mortgages  upon  them  would  be  required  to  be  recorded  in 
different  places,  is  only  valid  in  respect  to  the  things  as  to 
which  it  is  duly  recorded. 

County  where  property  is  situated:  See  ante,  §  2959. 
Legislation  §  2962.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1637. 

§  2963.  Personal  mortgage  may  be  recorded.  Except  as  it 
is  otherwise  in  this  article  provided,  mortgages  of  personal 
property  may  be  acknowledged  or  proved  and  certified, 
recorded  in  like  manner  and  with  like  effect  as  grants  of  real 
property ;  but  they  must  be  recorded  in  books  kept  for  personal 
mortgages  exclusively. 

Manner  and  effect  of  recording:  See  ante,  §§  1169-1171,  1213-1217. 
Manner  of  acknowledging:  See  ante,  §  2957. 
Legislation  §  2963.     Enacted  March  21,  1872. 

§  2964.  Certified  copies  may  be  recorded,  when.  A  certified 
copy  of  a  mortgage  of  personal  property  once  recorded  may 


§  2967  CIVIL  CODE.  740 

be  recorded  in  any  other  comity,  and  when  so  recorded  the 
record  thereof  has  the  same  force  and  effect  as  though  it  Avas 
of  the  original  mortgage. 

Legislation  §  2964.     Enacted  March  21,  1872. 

§  2965.    Mortgfaged  personal  property,   effect  of  removal. 

When  personal  property  mortgaged  is  thereafter  removed  from 
the  county  in  which  it  is  situated,  the  lien  of  the  mortgage  shall 
not  be  affected  thereby  for  thirty  days  after  such  removal ; 
but,  after  the  expiration  of  such  thirty  days,  the  property 
mortgaged  is  exempted  from  the  operation  of  the  mortgage, 
except  as  between  the  parties  thereto,  until  either : 

1.  The  mortgagee  causes  the  mortgage  to  be  recorded  in  the 
county  to  which  the  property  has  been  removed;  or 

2.  The  mortgagee  takes  possession  of  the  property  as  pre- 
scribed in  the  next  section.  [Amendment  approved  1909 ; 
Stats.  1909,  p.  44.] 

Removal  of  property  from  mortgaged  premises,  when  larceny:  See 
Penal  Code,  §  502io. 

Legislation  §  2965.  1.  Enacted  March  21,  1872,  and  then  read:  "When 
personal  property  mortgaged  is  thereafter  by  the  mortgagor  removed 
from  the  country  in  which  it  is  situated  it  is,  except  as  between  the 
parties  to  the  mortgage,  exempted  from  the  operation  thereof,  unless 
either:  1.  The  mortgagee,  within  thirty  days  after  such  removal,  causes 
the  mortgage  to  be  recorded  in  the  county  to  which  the  property  has 
been  removed;  or,  2.  The  mortgagee,  within  thirty  days  after  such 
removal,  takes  possession  of  the  property,  as  prescribed  in  the  next 
section." 

2.  Amended  by  Stats.  1909,  p.  44. 

§  2966.     May  be  taken  by  mortgagee  as  a  pledge,  when.    If 

the  mortgagor  voluntarily  removes  or  permits  the  removal  of 
the  mortgaged  property  from  the  county  in  which  it  was  sit- 
uated at  the  time  it  Avas  mortgaged,  the  mortgagee  may  take 
possession  and  dispose  of  the  property  as  a  pledge  for  the  pay- 
ment of  the  de])t,  though  the  debt  is  not  due. 
Legislation  §  2966.     Enacted  March  21,  1872. 

§  2967.  How  foreclosed.  A  mortgagee  of  personal  prop- 
erty, when  the  debt  to  secure  which  the  mortgage  Avas  exe- 
cuted becomes  due,  may  foreclose  the  mortgagor's  right  of  re- 
demption by  a  sale  of  the  property,  made  in  the  manner  and 
upon  the  notice  prescribed  by  the  title  on  ''pledge,"  or  by 
proceedings  under  the  Code  of  Civil  Procedure. 

Sale  of  pledge:  See  post,  §§  3000  et  seq. 
Actual  notice  required:  See  post,  §  3002. 
Foreclosure:   Code  Civ.  Proc,  §§  726-729. 

Legislation  §  2967.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  IB33. 


2970.  Distribution  of  Proceeds  of  Sale  Under  Process.  When 
the  property  f-s  taken  after  payment  or  tender  of  deposit  as 
provided    for    in    section    two    thousand    nine    hundred    sSy-nine 

2.     The     balance,     if    any.     in     like     manner    as     the     [processl 

rWh:n'?he°'   ^^'^:,""^-   --"«-   are   applied    in   other   cases 

[When    the    property    is    taken    after    presentation    to    the    officer 

of   the    verified    statement    and    bond    mentioned    in    the    prov°so    fn 

section    two   thousand    nine    hundred    sixty-nine    and    Is    sold    unde^ 

[1.     To   the   satisfaction    of   the   amount   specified    In    the   process 
including    Interest    and    costs;   ^nd  process 

safes  u^dtn*"!'^""!'  "  '"^'  '"  '"'"  '""""«'•  ^^  ^f^e  P'-oceeds  of 
sales  under  execution  are  applied  in  other  cases.]  (In  effect  90 
days    from    and    after   April    29.    1921.     Stats.    1921,    Chap.    87.7 

Civ.    Code,    1921 


2969.  Limitations  on  Right  of  Levy.  Before  the  property  is 
so  taken,  the  officer  must  pay  or  tender  to  the  mortagee  the 
amount  of  the  mortgage  debt  and  interest,  or  must  deposit  the 
amount  thereof  with  the  county  clerli  or  treasurer,  payable  to 
the  order  of  the  mortgagee [;  provided,  however,  that  when  an 
attachment  or  execution  creditor  presents  to  the  officer  a  verified 
statement  that  the  mortgage  is  void  or  invaiid  for  reasons 
therein  specifies  and  delivers  to  the  officer  a  good  and  sufficient 
Indemnity  bond  in  double  the  amount  of  the  mortgage  debt  or 
double  the  value  of  the  mortgaged  property,  as  the  officer  may 
determine  and  require,  the  officer  shall  take  the  property,  and, 
In  the  case  of  an  execution,  sell  It  In  the  manner  provided  by 
law.  The  bond  shall  be  made  to  both  the  officer  and  the  mort- 
gagee and  shall  Indemnify  them  and  each  of  them  for  the  taking 
of  the  property  against  loss,  liability,  damages,  costs  and  coun- 
sel fees.  Exceptions  to  the  sufficiency  of  the  sureties  and  their 
Justification  may  be  had  and  taken  in  the  same  manner  as  upon 
an  undertaking  on  attachment.]  (In  effect  90  days  from  and 
after  April  29,   1921.     Stats.   1921,   Chap.   87.)  Civ.    Code,   1921. 


741  MORTGAGES  OF  PERSONAL  PROPERTY.  §  2973 

§  2968.  Mortgage  property  may  be  levied  upon.  Personal 
property  mortgaged  may  ))e  taken  under  attachment  or  execu- 
tion issued  at  the  suit  of  a  creditor  of  the  mortgagor. 

Legislation  §  2968.     1.  Enacted  March  21,  1872. 

2.  Amendment  by  Stats.  1901,  p.  417j  unconstitutional.     See  note,  §  4, 
ante. 

§  2969.  Limitations  on  right  of  levy.  Before  the  property 
is  so  taken,  the  officer  must  pay  or  tender  to  the  mortgagee  the 
amount  of  the  mortgage  debt  and  interest,  or  must  deposit  the 
amount  thereof  with  the  county  clerk  or  treasurer,  payable  to 
the  order  of  the  mortgagee. 

Measure  of  special  owner's  damage  for  conversion:  See  post,  §  3338. 
Legislation  §  2969.     1.  Enacted  March  21,  1872. 

2.  Amendment  by   Stats.   1901,   p.  418;   unconstitutional.     See   note, 
§  4,  ante. 

§  2970.     Distribution   of   proceeds    of   sale   under   process. 

When  the  property  thus  taken  is  sold  under  process,  the  officer 
must  apply  the  proceeds  of  the  sale  as  follows : 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee,  with 
interest  from  the  date  of  such  payment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of  sales 
under  execution  are  applied  in  other  cases. 

Legislation  §  2970.     Enacted  March  21,  1872. 

§  2971.  Certain  sections  not  applicable  to  mortgage  of  cer- 
tain ships.  fSections  tAvo  thousand  nine  hundred  and  fifty- 
seven,  two  thousand  nine  hundred  and  fifty-nine,  two  thousand 
nine  hundred  and  sixty,  two  thousand  nine  hundred  and  sixty- 
one,  two  thousand  nine  hundred  and  sixty-two,  two  thousand 
nine  hundred  and  sixty-three,  two  thousand  nine  hundred  and 
sixty-four,  two  thousand  nine  hundred  and  sixty-five,  and  two 
thousand  nine  hundred  and  sixty-six  do  not  apply  to  any  mort- 
gage of  a  ship  or  part  of  a  ship  under  the  flag  of  the  United 
States. 

Legislation  §  2971.     Enacted  March  21,  1872. 

§  2972.  Continuance  of  lien  of  mortgage  on  crops.  The  lien 
of  a  mortgage  on  a  growing  crop  continues  on  the  crop  after 
severance,  whether  remaining  in  its  original  state  or  converted 
into  another  product,  so  long  as  the  same  remains  on  the  land 
of  mortgagor. 

Legislation  §  2972.     Added  by  Code  Amdts.  1877-78,  p.  89. 

§  2973.  Validity  of  certain  mortgages.  Mortgages  of  per- 
sonal property,  other  than  that  mentioned  in  section  twenty- 
nine  hundred  and  fifty-five,  and  mortgages  not  made  in  con- 
formity with  the  provisions  of  this  article,  are  nevertheless 


§  2986  CIVIL  CODE.  742 

valid  between  the  parties,  their  heirs,  legatees,  and  personal 
representatives,  and  persons  who,  before  parting  with  value, 
have  actual  notice  thereof. 

Legislation  §  2973.  1.  Addition  by  Stats.  1901,  p.  418;  unconstitu- 
tutional.     See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  617;  the  code  commissioner  saying,  "This 
section  merely  declares  the  law  already  existing  upon  the  subject.  It 
is  deemed  proper  to  have  the  same  expressed  in  the  code." 


CHAPTER  III. 
Pledge. 

§  2986.  Pledge,  what. 

§  2987.  When  contract  is  to  be  deemed  a  pledge. 

§  2988.  Delivery  essential  to  validity  of  pledge. 

§  2989.  Increase  of  thing. 

§  2990.  Lienor  may  pledge  property  to  extent  of  his  lien. 

§  2991.  Eeal  owner  cannot  defeat  pledge  of  property  transferred  to  ap- 
parent owner  for  the  purpose  of  pledge. 

§  2992.  Pledge-lender,  what. 

§  2993.  Pledge-holder,  what. 

§  2994.  When  pledge-lender  may  withdraw  property  pledged. 

§  2995.  Obligations  of  pledge-holder. 

§  2996.  Pledge-holder  must  enforce  rights  of  pledgee. 

§  2997.  Obligation  of  pledgee  and  pledge-holder,  for  reward. 

§  2998.  Gratuitous  pledge-holder. 

§  2999.  Debtor's  misrepresentation  of  value  of  pledge. 

§  3000.  When  pledgee  may  sell. 

§  3001.  Sale  of  pledged  property. 

§  3002.  Notice  of  sale  to  pledgor. 

§  3003.  Waiver  of  notice  of  sale. 

§  3004.  Waiver  of  demand. 

§  30O5.  Sale  of  pledged  property,  manner  of. 

§  3006.  Pledgee's  sale  of  securities. 

§  3007.  Sale  on  the  demand  of  the  pledgor. 

§  3008.  Surplus  to  be  paid  to  pledgor. 

§  3009.  Pledgee  may  retain  all  that  can  become  due. 

§  3010.  Pledgee  or  pledge-holder  may  purchase. 

§  3011.  Pledgee  may  foreclose  right  of  redemption. 

§  2986.     Pledg'e,  what.     Pledge  is  a  deposit  of  personal  prop- 
erty by  Avay  of  security  for  the  performance  of  another  act. 
Increase  of  property  pledged:  Post,  §  2989. 

Note.  Much  difficulty  has  arisen  in  determining  whether  a  certain 
transaction  is  a  pledge  or  a  chattel  mortgage,  the  question  generally 
being  whether  the  title  has  passed  or  not.  In  this  state,  it  has  been 
seen,  title  never  passes  in  case  of  property  conveyed  or  deposited  as 
security:  Post,  §  2888.  And,  also,  whenever  the  possession  of  personal 
property  is  transferred  as  security  only,  it  is  to  be  treated  as  a  pledge: 
Post,  §  2987.  And  even  a  chattel  mortgage,  when  the  possession  of  the 
property  mortgaged  is  transferred,  becomes  a  pledge:  Ante,  §  2924,  and 
post,  §  2987.  The  question  is  therefore  much  simplified,  possession  be- 
ing the  criterion. 

Legislation  §  2986.     Enacted  March  21,  1872. 


743  PLEDGES.  §  2993 

§  2987.  When  contract  is  to  be  deemed  a  pledge.  Every 
contract  by  which  the  possession  of  personal  property  is  trans- 
ferred, as  security  only,  is  to  ])e  deemed  a  pledge. 

Legislation  §  2987.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1648. 

§2988.  Delivery  essential  to  validity  of  pledge.  The  lien 
of  a  pledge  is  dependent  on  possession,  and  no  pledge  is  valid 
until  the  property  pledged  is  delivered  to  the  pledgee,  or  to  a 
pledge-holder,  as  hereafter  prescribed. 

Legislation  §  2988.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1649. 

§  2989.  Increase  of  thing.  The  increase  of  property 
pledged  is  pledged  with  the  property. 

Legislation  §  2989.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1650. 

§  2990.     Lienor  may  pledge  property  to  extent  of  his  lien. 

One  who  has  a  lien  upon  property  may  pledge  it  to  the  extent 
of  his  lien. 

compare  post,  §  2991. 

Lienor's  action  for  damages:  See  post,  §  3338. 

Legislation  §  2990.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1651. 

§  2991.  Real  owner  cannot  defeat  pledge  of  property  trans- 
ferred to  apparent  owner  for  the  purpose  of  pledge.     One  who 

has  alloAved  another  to  assume  the  apparent  ownership  of  prop- 
erty for  the  purpose  of  making  any  transfer  of  it,  cannot  set 
up  his  own  title,  to  defeat  a  pledge  of  the  property,  made  by 
the  other,  to  a  pledgee  who  received  the  property  in  good  faith, 
in  the  ordinary  course  of  business,  and  for  value. 

Legislation  §  2991.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1652. 

§  2992.  Pledge-lender,  what.  Property  may  be  pledged  as 
security  for  the  obligation  of  another  person  than  the  owner, 
and  in  so  doing  the  owner  has  all  the  rights  of  a  pledgor  for 
himself,  except  as  hereinafter  stated. 

Legislation  §  2992.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1653. 

§  2993.  Pledge-holder,  what.  A  pledgor  and  pledgee  may 
agree  upon  a  third  person  with  whom  to  deposit  the  property 
pledged,  who,  if  he  accepts  the  deposit,  is  called  a  pledge- 
holder. 

Legislation  §  2993.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1654. 


§  2999  CIVIL  CODE.  744 

§  2994.  When  pledge-lender  may  withdraw  property 
pledged.  One  Avho  pledges  property  as  security  for  the  obliga- 
tion of  another,  cannot  withdraw  the  property  pledged  other- 
wise than  as  a  pledgor  for  himself  might,  and  if  he  receives 
from  the  debtor  a  consideration  for  the  pledge  he  cannot  with- 
draw it  without  his  consent. 

Legislation  §  2994.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N".  Y.  Civ.  Code,  §  1655. 

§  2995.  Obligations  of  pledge-holder.  A  pledge-holder  for 
reward  cannot  exonerate  himself  from  his  undertaking;  and 
a  gratuitous  pledge-holder  can  do  so  only  by  giving  reasonable 
notice  to  the  pledgor  and  pledgee  to  appoint  a  new  pledge- 
holder, and  in  case  of  their  failure  to  agree,  by  depositing  the 
property  pledged  with  some  impartial  person,  who  will  then 
be  entitled  to  a  reasonable  compensation  for  his  care  of  the 
same. 

Legislation  §  2995.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  1656. 

§2996.     Pledge-holder  must  enforce  rights  of  pledgee.     A 

pledge-holder  must  enforce  all  the  rights  of  the  pledgee,  unless 
authorized  by  him  to  Avaive  them. 

Legislation  §  2996.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1657. 

§  2997.     Obligation  of  pledgee  and  pledge-holder,  for  reward. 

A  pledgee,  or  a  pledge-holder  for  rcAvard,  assumes  the  duties 
and  liabilities  of  a  depositary  for  reward. 

Depositary  for  reward:  See  ante,  §§  1845,  1852. 

Legislation  §  2997.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1658. 

§2998.  Gratuitous  pledge-holder.  A  gratuitous  pledge- 
holder assumes  the  duties  and  liabilities  of  a  gratuitous 
depositary. 

Gratuitous  pledge-holder:   See  ante,  §§  1846,  1847. 
Legislation  §  2998.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1659. 

§2999.     Debtor's    misrepresentation    of    value    of    pledge. 

where  a  debtor  has  obtained  credit,  or  an  extension  of  time, 
by  a  fraudulent  misrepresentation  of  the  value  of  property 
pledged  by  or  for  him,  the  creditor  may  demand  a  further 
pledge  to  correspond  with  the  value  represented;  and  in  de- 
fault thereof  may  recover  his  debt  immediately,  though  it  be 
not  actually  due. 

Legislation  §  2999.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1660. 


745  •      PLEDGES.  §  3005 

§  3000.  When  pledgee  may  sell.  When  performance  of  the 
act  for  which  a  pledge  is  given  is  due,  in  whole  or  in  part,  the 
pledgee  may  collect  what  is  due  to  him  by  a  sale  of  property 
pledged,  subject  to  the  rules  and  -exceptions  hereinafter  pre- 
scribed. 

Note.  Another  remedy  is  provided  by  §  3011,  post;  and  sale  is  re- 
stricted in  case  of  most  clioses  in  action  by  §  3006,  post.  See  also, 
ante,  §  2890. 

Foreclosure  of  right  of  redemption:  Post,  §  3011. 

Legislation  §  3000.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1661. 

§  3001.  Sale  of  pledged  property.  Before  property  pledged 
can  be  sold,  and  after  performance  of  the  act  for  which  it  is 
security  is  due,  the  pledgee  must  demand  performance  thereof 
from  the  debtor,  if  the  debtor  can  be  found.  [Amendment 
approved  1874;  Code  Amdts.  1873-74,  p.  262.] 

Legislation  §  3001.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1662. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  262,  (1)  substituting  "can" 
for  "may"  before  "be  sold,"  and  (2)  adding  "if  the  debtor  can  be 
found,"  at  end  of  section. 

§  3002.  Notice  of  sale  to  pledgor.  A  pledgee  must  give 
actual  notice  to  the  pledgor  of  the  time  and  place  at  which 
the  property  pledged  will  be  sold,  at  such  a  reasonable  time 
before  the  sale  as  will  enable  the  pledgor  to  attend. 

Legislation  §  3002.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1663. 

$  3003.  Waiver  of  notice  of  sale.  Notice  of  sale  may  be 
waived  bv  a  pledgor  at  any  time;  but  is  not  waived  by  a  mere 
waiver  of  demand  of  performance. 

Legislation  §  3003.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1664. 

5  3004-.  Waiver  of  demand.  TV  dobtor  or  pledaror  waives  a 
demand  of  performance  as  a  condition  nrecedent  to  a  sale  of 
the  nropertv  nl edged,  by  a  positive  refusal  to  perform,  after 
nerformance  is  due;  but  cannot  waive  it  in  any  other  manner 
except  by  contract. 

Legislation  §  3004.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

K  Y.  Civ.  Code,  §  166.5. 

8  3005.  Sale  of  pledged  "oropertv,  manner  of.  Tbe  sale  by 
nledgee.  of  property  pledsred,  must  be  made  bv  public  auction, 
in  tbe  manner  and  upon  the  notice  of  sale  of  nersonal  nropertv 
under  execution.  [Amendment  approved  1909;  Stats.  1909. 
p.  972.] 

Legislation  5  3005.  1.  Enacted  March  21.  1872  (based  on  Field's 
Draft,  K  Y.  Cjv.  Code,  §  1666),  and  then  read;  "The  sale  by  a  pledged. 


§  3010  CIVIL  CODE.  ■  746 

of  property  pledged,  must  be  made  by  public  auction,  in  the  manner 
and  upon  the  notice  to  the  public  usual  at  the  place  of  sale,  in  respect 
to  auction  sales  of  similar  property j  and  must  be  for  the  highest 
obtainable  price." 

2.  Amended  by  Stats.  1909,  p.  972. 

§3006.  Pledgee's  sale  of  securities.  A  pledgee  cannot  sell 
any  evidence  of  deht  pledged  to  him,  except  the  obligations  of 
governments,  states,  or  corporations ;  but  he  may  collect  the 
same  when  due. 

Legislation  §  3006.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1667. 

§  3007.     Sale  on  the   demand   of  the   pledgor.     AVhenever 

property  pledged  can  be  sold  for  a  price  sufficient  to  satisfy 

the  claim  of  the  pledgee,  the  pledgor  may  require  it  to  be  sold, 

and  its  proceeds  to  be  applied  to  such  satisfaction,  when  due. 

Retaining  proceeds:  See  post,  §  3009. 

Legislation  §  3007.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1668. 

§  3008.  Surplus  to  be  paid  to  pledgor.  After  a  pledgee  has 
lawfully  sold  property  pledged,  or  otherwise  collected  its 
proceeds,  he  may  deduct  therefrom  the  amount  due  under  the 
principal  obligation,  and  the  necessary  expenses  of  sale  and 
collection,  and  must  pay  the  surplus  to  the  pledgor,  on  demand. 
Legislation  §  3008.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  1669. 

§  3009.     Pledgee  maj'  retain  all  that  can  become  due.     When 

property  pledged  is  sold  liy  order  of  the  pledgor  before  the 
claim  of  the  pledgee  is  due,  the  latter  may  retain  out  of  the 
proceeds  all  that  can  possibly  become  due  under  his  claim  until 
it  becomes  due.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  262.] 

Legislation  §  3009.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,.  N.  Y.  Civ.  Code,  §  1670),  and  then  read:  "When  property  pledged 
is  sold  before  the  claim  of  the  pledgee  is  due,  he  may  retain  out  of 
the  proceeds  all  that  can  possibly  become  due  under  his  claim,  until 
it  becomes  due,  with  the  proper  rebate  of  interest." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  262. 

§  3010.  Pledgee  or  pledge-holder  may  purchase.  AVheneA-er 
property  pledged  is  sold  at  public  auction,  in  the  manner 
provided  by  section  three  thousand  and  five  of  this  code,  the 
pledgee  or  pledge-holder  may  purchase  said  property  at  such 
sale.     [Amendment  approved  1895 :  Stats.  1895,  p.  26.] 

Legislation  §  3010.  1.  Enacted  March  21.  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1671),  and  then  read:  "A  pledgee,  or  pledge- 
holder, cannot  purchase  the  property  pledged,  except  by  direct  deal- 
ing with  the  pledgor." 

2.  Amended  by  Stats.  1895,  p.  26. 


747  BOTTOMRY.  §  3020 

§  3011.  Pledgee  may  foreclose  right  of  redemption.  In- 
stead of  selling  property  pledged,  as  hereinbefore  provided,  a 
pledgee  may  foreclose  the  right  of  redemption  by  a  judicial 
sale,  under  the  direction  of  a  competent  court ;  and  in  that  case 
may  be  authorized  by  the  court  to  purchase  at  the  sale. 
Pawnbrokers:  Pen.  Code,  §§  338-343. 

Legislations  3011.     Enacted  Mareh  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1672. 

CHAPTER  TV. 
Bottomry. 

§  3017.  Bottomry,  what. 

§  3018.  Owner  of  ship  may  hypothecate. 

§  3019.  When  master  may  hypothecate  ship. 

§  3020.  Same. 

§  3021.  When  master  may  hypothecate  freight-money. 

§  3022.  Rate  of  interest. 

§  3023.  Eights   of  lender,  when   no  necessity  for  bottomry  existed. 

§  3024.  Stipulation  for  personal  liability  void. 

§  3025.  When  money  loaned  is  to  be  repaid. 

§  3026,  When  bottomry  loan  becomes  due. 

§  3027.  Bottomry  lien,   how  lost. 

§  3028.  Preference  of  bottomry  lien  over  other  liens. 

§  3029.  Priority  of  bottomry  liens. 

§  3017.  Bottomry,  what.  Bottomry  is  a  contract  by  which 
a  ship  or  its  freightage  is  hypothecated  as  security  for  a  loan, 
which  is  to  be  repaid  only  in  case  the  ship  survives  a  particular 
risk,  voyage,  or  period. 

It  is  independent  of  possession:  Post,  §  3027. 
Insurance  by  owner:  See  ante,  §  2660. 

Legislation  §  3017.     Enacted  Mareh  21,  1872;  based  on  Field's  Draft, 
•  N.  Y.  Civ.  Code,  §  1673. 

§  3018.  Owner  of  ship  may  hypothecate.  The  owner  of  a 
ship  may  hypothecate  it  or  its  freightage,  upon  bottomry,  for 
any  lawful  purpose,  and  at  any  time  and  place. 

Legislation  §  3018.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1674. 

§  3019.  When  master  may  hypothecate  ship.  The  master 
of  a  ship  may  hypothecnte  it  upon  bottomry  only  for  the  pur- 
pose of  procuring  repairs  or  supplies  which  are  necessary  for 
accomplishing  the  objects  of  the  voyage,  or  for  securing  the 
safety  of  the  ship. 

Freightage,  authority  of  master  extends  to:  Post,  §  3021. 
Legislation  §  3019.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  167.5. 

§3020.  Same.  The  mastor  of  a  ship  can  hypothecate  it 
upon  bottomry   only  when   he   cannot   otherwise  relieve  the 


§  3026  CIVIL  CODE.  748 

necessities  of  the  ship,  and  is  unable  to  reach  adequate  funds 
of  the  owner,  or  to  obtain  any  upon  the  personal  credit  of  the 
owner,  and  when  previous  communication  with  him  is  pre- 
cluded by  the  urgent  necessity  of  the  case. 

May  sell  ship  and  cargo:  See  ante,  §§  2377-2379. 

Iiegislation  §  3020.  Euacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1676. 

§  3021.    When  master  may  hypothecate  freight-money.     The 

master  of  a  ship  may  hypothecate  freightage  upon  bottomry, 
under  the  same  circumstances  as  those  which  authorize  an 
hypothecation  of  the  ship  by  him. 

Legislation  §  3021.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1677. 

§  3022.  Rate  of  interest.  Upon  a  contract  of  bottomry,  the 
parties  may  laAvfully  stipulate  for  a  rate  of  interest  higher  than 
that  allowed  by  the  law  upon  other  contracts.  But  a  compe- 
tent court  may  reduce  the  rate  stipulated  when  it  appears 
unjustifiable  and  exorbitant. 

Legislation  §  3022.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1678. 

§  3023.  Rights  of  lender,  v^hen  no  necessity  for  bottomry  ex- 
isted. A  lender  upon  a  contract  of  bottomry,  made  by  the 
master  of  a  ship,  as  such,  may  enforce  the  contract,  though  the 
circumstances  necessary  to  authorize  the  master  to  hypothecate 
the  ship  did  not  in  fact  exist,  if,  after  due  diligence  and  in- 
quiry, the  lender  had  reasonable  grounds  to  believe,  and  did 
in  good  faith  believe,  in  the  existence  of  such  circumstances. 
Legislation  §  3023.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1679. 

§  3024.  Stipulation  for  personal  liability  void.  A  stipula- 
tion in  a  contract  of  bottomry,  imposing  any  liability  for  the 
loan  independent  of  the  maritime  risks,  is  void. 

Legislation  §  3024.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1680. 

§  3025.  When  money  loaned  is  to  be  repaid.  In  case  of  a 
total  loss  of  the  thing  hypothecated,  from  a  risk  to  which  the 
loan  was  subject,  the  lender  upon  bottomry  can  recover  noth- 
ing ;  in  case  of  a  partial  loss,  he  can  recover  only  to  the  extent 
of  the  net  value  to  the  owner  of  the  part  sav^ed. 

Legislation  §  3025.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1681. 

§  3026.  When  bottomry  loan  becomes  due.  Unless  it  is 
otherwise  expressly  agreed,  a  bottomry  loan  becomes  due  im- 


749  RESPONDENTIA.  §  3037 

mediately  upon  the  termination  of  the  risk,  although  a  term 
of  credit  is  specified  in  the  contract. 

Legislation  §  3026.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1682. 

§  3027.  Bottomry  lien,  how  lost.  A  bottomry  lien  is  inde- 
pendent of  possession,  and  is  lost  by  omission  to  enforce  it 
within  a  reasonable  time. 

Legislation  §  3027.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1683. 

§  3028.     Preference  of  bottomry  lien  over  other  liens.     A 

bottomry  lien,  if  created  out  of  a  real  or  apparent  necessity,  in 
good  faith,  is  preferred  to  every  other  lien  or  claim  upon  the 
same  thing,  excepting  only  a  lien  for  seamen's  wages,  a  sub- 
sequent lien  of  material-men  for  supplies  or  repairs  indis- 
pensable to  the  safety  of  the  ship,  and  a  subsequent  lien  for 
salvage. 

Seamen's  wages:  Ante,  §§  2048-2066. 

Legislation  §  3028.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1684. 

§  3029.  Priority  of  bottomry  liens.  Of  two  or  more  bot- 
tomry liens  on  the  same  subject,  the  latter  in  date  has  prefer- 
ence, if  created  out  of  necessity. 

Priority  between  bottomry  liens:  See  ante,  §  2897. 
Legislation  §  3029.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1685. 

CHAPTER  V. 

Respondentia. 

§  3036.  Respondentia,  what. 

§  3037.  Respondentia  by  owner. 

§  3038.  Respondentia  by  master. 

§  3039.  Rate  of  interest. 

§  3040.  Obligations   of  ship-owner. 

§  3036.  Respondentia,  what.  Respondentia  is  a  contract  by 
which  a  cargo,  or  some  part  thereof,  is  hypothecated  as  secur- 
ity for  a  loan,  the  repayment  of  which  is  dependent  on  maritime 
risks. 

Legislation  §  3036.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1686. 

§  3037.  Respondentia  by  owner.  The  owner  of  cargo  may 
hypothecate  it  upon  respondentia,  at  any  time  and  place,  and 
for  any  lawful  purpose. 

Legislation  §  3037.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1687. 


§  3046  CIVIL  CODE.  750 

§  3038.  Respondentia  by  master.  The  master  of  a  ship  may 
hypothecate  its  cargo  upon  respondentia  only  in  a  case  in  which 
he  would  be  authorized  to  hypothecate  the  ship  and  freightage, 
but  is  unable  to  borrow  sufficient  money  thereon  for  repairs  or 
supplies  which  are  necessary  for  the  successful  accomplishment 
of  the  voyage ;  and  he  cannot  do  so,  even  in  such  case,  if  there 
is  no  reasonable  prospect  of  benefiting  the  cargo  thereby. 

Master  may  sell  cargo:  Ante,  §  2379. 

Legislation  §  3038.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1688. 

§  3039.  Rate  of  interest.  The  provisions  of  sections  three 
thousand  and  twenty-two  to  three  thousand  and  twenty-nine 
apply  equally  to  loans  on  respondentia. 

Legislation  §  3039.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1689. 

§  3040.  Obligations  of  ship-ow^ner.  The  owner  of  a  ship  is 
bound  to  repay  to  the  owner  of  its  cargo  all  which  the  latter 
is  compelled  to  pay,  under  a  contract  of  respondentia  made  by 
the  master,  in  order  to  discharge  its  lien. 

Obligations  of  ship-owner:   See  ante,  §  2385. 
Master  personally  responsible:  Ante,  §  2383. 

Legislation  §  3040.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1690. 

CHAPTER  VI. 

other  Liens. 

§  3046.  Lien  of  seller  of  real  property. 

§  3047.  When  transfer  of  contract  waives  lien. 

§  3048.  Extent  of  seller's  lien. 

§  3049.  Lien  of  seller  of  personal  property. 

§  3050.  Purchaser's  lien  on  real  property. 

§  3051.  Lien  on  personal  property  for  services  thereon. 

§  3052.  Lien-holder   may   sell   property.     Notice   of   sale.     Proceeds. 

§  3053.  Lien  of  factor. " 

§  3054.  Banker's  lien. 

§  3055.  Ship-master's  lien. 

§  3056.  Seamen's  lien. 

§  3057.  Officer's  lien. 

§  3058.  Judgment  lien. 

§  3059.  Mechanic's  lien. 

§  3060.  Lien  on  ships. 

§  3061.  Lien  of  workmen  on  thrashing-machines,  etc. 

§  3062.  Lien  of  person  in  charge  of  stallion,  etc. 

§  3063.  Filing  of  verified  claim;   notice  to  subsequent  purchasers. 

§  3064.  Action  to  enforce  lien. 

§  3065.  Lien  of  person  who  cuts,  etc.,  logs,  lumber,  etc. 

§  3046.  Lien  of  seller  of  real  property.  One  who  sells  real 
property  has  a  vendor's  lien  thereon,  independent  of  posses- 


751  MISCELLANEOUS  LIENS.  §  3051 

sion,  for  so  much  of  the  price  as  remains  unpaid  and  unsecured 
otherwise  than  by  the  personal  obligation  of  the  buyer. 

Transfer  of  personal  security  waives  lien:  Pest,  §  3047. 

Transfer  liy  vendee  to  bona  fide  purchaser  or  encumbrancer  dis- 
charges lien:  Post,  §  3048. 

Legislationi  3046.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1691. 

§  3047.  When  transfer  of  contract  waives  lien.  Where 
a  buyer  of  real  property  gives  to  the  seller  a  Avritten  contract 
for  payment  of  all  or  part  of  the  price,  an  absolute  transfer  of 
such  contract  by  the  seller  waives  his  lien  to  the  extent  of  the 
sum  payable  under  the  contract,  but  a  transfer  of  such  contract 
in  trust  to  pay  debts,  and  return  the  surplus,  is  not  a  waiver 
of  the  lien. 

Legislation  §  3047.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1692. 

§3048.     Extent  of  seller's  lien.     The  liens  defined  in  sections 
three  thousand  and  forty-six  and  three  thousand  and  fifty  are 
valid  against  every  one  claiming  under  the  debtor,  except  a 
purchaser  or  encumbrancer  in  good  faith  and  for  value. 
Constructive  notice,  who  has:  See  ante,  §  19. 

Legislation  §  3048.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1693. 

§  3049.  Lien  of  seller  of  personal  property.  One  who  sells 
personal  property  has  a  special  lien  thereon,  dependent  on  pos- 
session, for  its  price,  if  it  is  in  his  possession  Avhen  the  price 
becomes  payable,  and  may  enforce  his  lien  in  like  manner  as  if 
the  property  was  pledged  to  him  for  the  price. 
Notice  of  sale  to  pledgor:  See  ante,  §  3002. 

Legislation  §  3049.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y  Civ.  Code,  §  1694. 

§3050.  Purchaser's  lien  on  real  property.  One  who  pays 
to  the  owner  any  jjart  of  the  price  of  real  property,  under  an 
agreement  for  the  sale  thereof,  has  a  special  lien  upon  the 
property,  independent  of  possession,  for  such  part  of  the 
amount  paid  as  he  may  be  entitled  to  recover  back,  in  case  of 
a  failure  of  consideration. 

Legislation  §  3050.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1695. 

§  3051.     Lien   on   personal  property   for   services   thereon. 

Every  person  who,  while  lawfully  in  possession  of  an  article 
of  personal  property  renders  any  service  to  the  owner  thereof, 
by  labor  or  skill,  employed  for  the  protection,  improvement, 
safekeeping,  or  carriage  thereof,  has  a  special  lien  thereon, 
dependent  on  possession,  for  the  compensation,  if  any,  which 


§  3051  CIVIL  CODE.  752 

is  due  to  him  from  the  owner  for  such  service ;  a  person  Avho 
makes,  alters,  or  repairs  any  article  of  personal  property,  at 
the  request  of  the  owner,  or  legal  possessor  of  the  property, 
has  a  lien  on  the  same  for  his  reasonable  charges  for  the  bal- 
ance due  for  such  work  done  and  materials  furnished,  and  may 
retain  possession  of  the  same  until  the  charges  are  paid;  and 
livery  or  boarding  or  feed  stable  proprietors,  and  persons  pas- 
turing horses  or  stock,  have  a  lien,  dependent  on  possession, 
for  their  compensation  in  caring  for,  boarding,  feeding,  or 
pasturing  such  horses  or  stock ;  and  laundry  proprietors  and 
persons  conducting  a  laundry  business,  have  a  general  lien, 
dependent  on  possession,  upon  all  personal  property  in  their 
hands  belonging  to  a  customer,  for  the  balance  due  them  from 
such  customer  for  laundry  work;  and  veterinarj^  proprietors 
and  veterinary  surgeons  shall  have  a  lien,  dependent  on  posses- 
sion, for  their  compensation  in  caring  for,  boarding,  feeding, 
and  medical  treatment  of  animals;  and  keepers  of  garages  for 
automobiles  shall  have  a  lien,  dependent  on  possession,  for 
their  compensation  in  caring  for  and  safekeeping  such  auto- 
mobiles. [Amendment  approved  1911;  Stats.  1911,  p.  887.] 
Carrier's  lien:  Ante,  §§  2144,  2191. 

Legislation  §  3051.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1696),  and  then  contained  only  the  first  clause 
of  the  section,  which  read  the  same  as  at  present  and  in  all  the  other 
amendments,  ending  with  the  words  "for  such  service." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  89,  adding  the  clause  be^ 
ginning  "and  livery"  and  ending  "or  stock"  (the  third  clause  of  the 
amendment  of  1907),  this  clause  then  ending  the  section. 

3.  Amended  by  Stats.  1901,  p.  270,  adding  the  clause  beginning  "and 
laundry  proprietors"  and  ending  "laundry-work"  (the  fourth  clause 
of  the  amendment  of  1907),  this  clause  then  ending  the  section. 

4.  Amended  by  Stats.  1907,  p.  85,  adding  the  second  and  final  (the 
fifth)  clauses;  the  first  clause  being  the  original  code  section,  the 
third  being  added  in  1877-78,  and  the  fourth  in  1901.  As  then 
amended  it  read:  "Every  person  who,  while  lawfully  in  possession  of 
an  article  of  personal  property,  renders  any  service  to  the  owner 
thereof,  by  labor  or  skill,  employed  for  the  protection,  improvement, 
safe-keeping,  or  carriage  thereof,  has  a  special  lien  thereon,  dependent 
on  possession,  for  the  compensation,  if  any,  which  is  due  to  him  from 
the  owner  for  such  service;  a  person  who  makes,  alters,  or  repairs  any 
article  of  personal  property,  at  the  request  of  the  owner,  or  legal  pos- 
sessor of  the  property,  has  a  lien  on  the  same  for  his  reasonable 
charges  for  work  done  and  materials  furnished,  and  may  retain  pos- 
session of  the  same  until  the  charges  are  paid;  and  livery  or  boarding 
or  feed  stable  proprietors,  and  jiersons  pasturing  horses  or  stock,  have 
a  lien,  dependent  on  possession,  for  their  compensation  in  caring  for, 
boarding,  feeding,  or  pasturing  such  horses  or  stock;  and  laundry  pro- 
prietors and  persons  conducting  a  laundry  business  have  a  general  lien, 
dependent  on  possession,  upon  all  personal  property  in  their  hands 
belonging  to  a  customer,  for  the  balance  due  them  from  such  customer 
for  laundry-work;  and  veterinary  hospital  proprietors  and  veterinary 
surgeons  shall  have  a  lien,  dependent  on  possession,  for  their  compeu- 


753  MISCELLANEOUS  LIENS.  §  3058 

sation  in  caring  for,  boarding,  feeding  and  medical  treatment  of  ani- 
mals." 

5.  Amended  by  Stats.  1911,  p.  887. 

§  3052.  Lien-holder  may  sell  property.  Notice  of  sale. 
Proceeds.  If  the  person  entitled  to  the  lien  provided  for  in 
section  three  thousand  and  fifty-one  of  this  code  be  not  paid 
the  amount  due  and  for  which  said  lien  is  given,  within  twenty 
days  after  the  same  shall  have  become  due,  then  such  lien- 
holder  may  proceed  to  sell  said  property,  or  so  much  thereof  as 
may  be  necessary  to  satisfy  said  lien  and  costs  of  sale,  at  pub- 
lic auction,  and  by  giving,  at  least  ten  days  previous  notice  of 
such  sale  by  advertising  in  some  newspaper  published  in  the 
county  in  which  such  property  is  situated;  or,  if  there  be  no 
newspaper  published  in  such  county,  then  by  posting  notices  of 
the  sale  in  three  of  the  most  public  places  in  the  town  or  place 
where  such  property  is  to  be  sold,  for  ten  days  previous  to  the 
date  of  sale.  The  proceeds  of  the  sale  must  be  applied  to  the 
discharge  of  the  lien  and  the  cost  of  keeping  and  selling  the 
property;  the  remainder,  if  any,  must  be  paid  over  to  the 
owner  thereof.  [Amendment  approved  1907;  Stats.  1907, 
p.  86.] 

Iiien  in  favor  of  owner  of  propagating  animal:  See  post,  §  3062. 
Legislation  §  3052.  1.  Enacted  March  21,  1872,  based  on  Stats.  1867- 
68,  p.  589,  §  15  (Mechanic's  Lien  Act),  and  then  read:  "A  person  who 
makes,  alters,  or  repairs  any  article  of  personal  property,  at  the  re- 
quest of  the  owner  or  legal  possessor  of  the  property,  has  a  lien  on 
the  same  for  his  reasonable  charges  for  work  done  and  materials  fur- 
nished, and  may  retain  possession  of  the  same  until  the  charges  are 
paid.  If  not  paid  within  two  months  after  the  work  is  done,  the 
person  may  proceed  to  sell  the  property  at  public  auction,  by  giving 
ten  days'  public  notice  of  the  sale  by  advertising  in  some  newspaper 
published  in  the  county  in  which  the  work  was  done;  or,  if  there  be  no 
newspaper  published  in  the  county,  then  by  posting  up  notices  of  the 
sale  in  three  of  the  most  public  places  in  the  town  where  the  work 
was  done,  for  ten  days  previous  to  the  sale.  The  proceeds  of  the  sale 
must  be  applied  to  the  discharge  of  the  lien  and  the  cost  of  keeping 
and  selling  the  property;  the  remainder,  if  any,  must  be  paid  over  to 
the  owner  thereof." 

2.  Amendment  by   Stats.   1901,   p.   418;   unconstitutional.     See   note, 
§  4,  ante. 

3..  Amended  by  Stats.  1907^  p.  86. 

§  3053.  Lien  of  factor.  A  factor  has  a  general  lien,  de- 
pendent on  possession,  for  all  that  is  due  to  him  as  such,  upon 
all  articles  of  commercial  value  that  are  intrusted  to  him  by 
the  same  principal. 

Power  of  pledging:  See  ante,  §  2991. 
Factor's  enforcement  of  lien:  Ante,  §  2027. 

Commission  merchant  making  advances  may  sell  property  when:  See 
Pol.  Code,  §  3156. 

Civ.  Code — 48 


§  3059  CIVIL  CODE.  754 

Legislation  §  3053.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1697. 

§3054.  Banker's  lien.  A  banker  has  a  general  lien,  de- 
pendent on  possession,  upon  all  property  in  his  hands  belong- 
ing to  a  customer,  for  the  balance  due  to  him  from  such  cus- 
tomer in  the  course  of  the  business. 

Legislation  §  3054,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1698. 

§3055.  Ship-master 's  lien.  The  master  of  a  ship  has  a  gen- 
eral lien,  independent  of  possession,  upon  the  ship  and  freight- 
age, for  advances  necessarily  made  or  liabilities  necessarily 
incurred  by  him  for  the  benefit  of  the  ship,  but  has  no  lien 
for  his  wages. 

Legislation  §  3055.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1699. 

§3056.  Seamen's  lien.  The  mate  and  seamen  of  a  ship  have 
a  general  lien,  independent  of  possession,  iipon  the  ship  and 
freightage,  for  their  wages,  which  is  superior  to  every  other 
lien. 

Legislation  §  3056.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1700. 

§3057.  Officer's  lien.  An  officer  who  levies  an  attachment 
or  execution  upon  personal  property  acquires  a  special  lien, 
dependent  on  possession,  upon  such  property,  which  authorizes 
him  to  hold  it  until  the  process  is  discharged  or  satisfied,  or  a 
judicial  sale  of  the  property  is  had. 

Attachment  and  execution:  See  Code  Civ.  Proc,  §§  542,  682,  688,  and 
690. 

Legislation  §  3057.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1701. 

§3058.  Judgment  lien.  The  lien  of  a  judgment  is  reg- 
ulated by  the  Code  of  Civil  Procedure. 

Judgment  lien:  See  Code  Civ.  Proc,  §§  671,  674. 

Legislation  §  3058.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1703. 

§3059.  Mechanic's  lien.  The  liens  of  mechanics,  for  ma- 
terials and  services  upon  real  property,  are  regulated  by  the 
Code  of  Civil  Procedure. 

Mechanics'  liens:  See  Code  Civ.  Proc,  §§  1183-1203a. 
Legislation  §  3059.     1.  Enacted  March  21,  1872. 

2.  Eepeal   by    Stats.    1901,    p.   418;    uuconstitutioual.     See    note,  §  4, 
ante. 


755  MISCELLANEOUS  LIENS.  §  3063 

§  3060.  Lien  on  ships.  Debts  amounting  to  at  least  fifty 
dollars,  contracted  for  the  benefit  of  ships,  are  liens  in  the  cases 
provided  by  the  Code  of  Civil  Procedure. 

Liens  for  services  performed  for  ships:  See  Code  Civ.  Proc,  §  813. 
Legislation  §  3060.     1.  Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1705.  ^ 

2.  Eepeal  by  Stats.  1901,  p.  418;  unconstitutional.  See  note,  §  4, 
ante. 

§  3061.     Lien    of    workmen    on    thrashing-machines,    etc. 

Every  person  performing  work  or  labor  in,  with,  about,  or  upon 
any  barley-crusher,  thrashing-machine  or  engine,  horse-power, 
wagon,  or  other  appliance  thereof,  while  engaged  in  crushing 
or  thrashing,  has  a  lien  thereon  to  the  extent  of  the  value  of 
his  services.  Such  lien  extends  for  ten  days  after  any  such 
person  ceases  such  work  or  labor;  provided,  within  that  time, 
an  action  is  brought  to  recover  the  amount  of  the  claim.  If 
judgment  is  given  in  favor  of  the  plaintilf  in  any  such  action, 
and  it  is  further  found  that  he  is  entitled  to  a  lien  under  the 
provisions  of  this  section,  property  subject  thereto,  or  so  much 
thereof  as  may  be  necessary,  may  be  sold  to  satisfy  such  judg- 
ment; but  if  several  judgment  [s]  have  been  recovered  against 
the  same  property  for  the  enforcement  of  such  liens,  the  pro- 
ceeds of  the  sale  must  be  divided  pro  rata  among  the  judgment 
creditors. 

Legislation  §  3061.  1.  Addition  by  Stats.  1901,  p.  418;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2,  Added  by  Stats.  1905,  p.  618;  the  code  commissioner  saying,  "The 
statute  of  1885,  page  109,  concerning  liens  in  favor  of  persons  working 
on  thrashing-machines,  is  codified  in  this  section." 

§  3062.  Lien  of  person  in  charge  of  stallion,  etc.  Every 
owner  or  person  having  in  charge  any  stallion,  jack,  or  bull, 
used  for  propagating  purposes,  has  a  lien  for  the  agreed  price 
of  its  service  upon  any  mare  or  cow  and  upon  the  offspring  of 
such  service,  unless  some  willfully  false  representation  concern- 
ing the  breeding  or  pedigree  of  such  stallion,  jack,  or  bull  has 
been  made  or  published  by  the  owner  or  person  in  charge  there- 
of, or  by  some  other  person,  at  the  request  or  instigation  of 
such  owner  or  person  in  charge. 

Legislation  §  3062.  1.  Addition  by  Stats.  1901,  p.  418;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  618;  the  code  commissioner  saying  in 
his  note  to  §§  3062-3064,  "The  statute  of  1891,  p.  90,  is  codified  in  the 
above  sections." 

§3063.  Filing  of  verified  claim;  notice  to  subsequent  pur- 
chasers. Every  claimant  of  a  lien  provided  for  in  the  preced- 
ing section  must,  within  ninety  days  after  the  service  on  ac- 
count of  which  the  lien  is  claimed,  file  in  the  office  of  the  county 


§  3065  CIVIL  CODE.  756 

recorder  of  the  county  where  the  mare  or  cow  subject  thereto 
is  kept,  a  verified  claim  containing  a  particular  description  of 
the  mare  or  cow,  the  date  and  place  of  service,  the  name  of  the 
owner  or  reputed  owner  of  such  mare  or  cow,  a  description  by 
name,  or  otherwise,  of  the  stallion,  jack,  or  bull  performing  the 
service,  the  name  6i  the  owner  or  person  in  charge  thereof,  and 
the  amount  of  the  lien  claimed.  Such  claim,  so  filed,  is  notice 
to  subsequent  purchasers  and  encumbrancers  of  such  mare  or 
cow  and  of  the  offspring  of  such  service  for  one  year  after  such 
filing. 

Legislation  §  3063.  1.  Addition  by  Stats.  1901,  p.  419;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  618.  See  ante,  Legislation  §  3062,  for 
code   commissioner's  note. 

§  3064.  Action  to  enforce  lien.  An  action  to  enforce  any 
lien  created  under  section  thirty  hundred  and  sixty-two  may 
be  brought  in  an}-  county  wherein  any  of  the  property  subject 
thereto  may  be  found,  and  the  plaintiff  is  entitled  to  the  rem- 
edies provided  in  sections  thirty  hundred  and  forty-four  and 
thirty  hundred  and  sixty-five  upon  complying  with  such  sec- 
tions, both  of  Avhich  are  hereby  made  applicable  to  the  pro- 
ceedings in  such  action. 

Legislation  §  3064.  1.  Addition  by  Stats.  1901,  p.  419;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  619.  See  ante,  Legislation  §  3062,  -for 
code  commissioner's  note. 

§  3065.     Lien  of  person  who  cuts,  etc.,  logs,  lumber,  etc.     A 

person  who  labors  at  cutting,  hauling,  rafting,  or  drawing  logs, 
bolts,  or  other  timber,  has  a  lien  thereon  for  the  amount  due 
for  his  personal  services,  which  takes  precedence  of  all  other 
claims,  to  continue  for  thirty  days  after  the  logs,  bolts,  or  other 
timber  arrive  at  the  place  of  destination  for  sale  or  manu- 
facture, while  such  logs,  bolts,  or  other  timber  are  in  the 
county  in  which  such  labor  was  performed.  The  lien  hereby 
created  ceases  and  determines  unless  the  claimant  thereof, 
within  twenty  days  from  the  time  such  labor  is  completed, 
brings  suit  to  foreclose  the  same.  The  plaintiff  in  any  such 
suit,  at  the  time  of  issuing  the  summons  or  at  any  time  after- 
wards, may  have  the  logs,  bolts,  or  other  timber  upon  which 
such  lien  subsists  attached,  as  provided  in  this  code,  upon  de- 
livering to  the  clerk  an  affidavit  by  or  on  behalf  of  the  plain- 
tiff, showing  that  defendant  is  indebted  to  the  plaintiff  upon 
a  demand  for  labor  performed,  either  in  the  cutting,  hauling, 
rafting,  or  drawing  such  logs,  bolts,  or  other  timber,  and  that 
the  sum  for  which  the  attachment  is  asked  is  an  actual  bona 
fide  existing  debt,  due  and  owing  from  the  defendant  to  the 


757  STOPPAGE  IN  TRANSIT,  §  3079 

plaintiff,  and  that  the  attachment  is  not  sought,  and  the  action 
is  not  brought,  to  hinder,  delay,  or  defraud  any  creditor  or 
creditors  of  the  defendant. 

Liens  for  wages:   See  Code  Civ.  Proc,  §§  1204-1208. 
Legislation  §  3065.     1.  Addition    by    Stats.    1901,   p.   419;    unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  619;  the  code  commissioner  saying,  "So 
much  of  the  statute  of  1877-78,  p.  747,  as  amended  in  1880,  p.  38,  and 
1887,  p,  53,  relating  to  loggers'  liens,  as  is  deemed  necessary  to  be  pre- 
served, is  codified  in  the  above  section." 


CHAPTER  \U. 

Stoppage  in  Transit. 

§  3076.  When   consignor   may   stop    goods. 

§  3077.  "What  is  insolvency  of  consignee. 

§  3078.  Transit,  when  ended. 

§  3079.  Stoppage,  how  effected. 

§  3080.  Effect  of  stoppage. 

§  3076.  When  consignor  may  stop  goods.  A  seller  or  con- 
signor of  property,  whose  claim  for  its  price  or  proceeds  has 
not  been  extinguished,  may,  upon  the  insolvency  of  the  buyer 
or  consignee  becoming  knoAvn  to  him  after  parting  with  the 
property,  stop  it  while  on  its  transit  to  the  buyer  or  consignee, 
and  resume  possession  thereof. 

That  bills  of  lading  are  negotiable:  See  ante,  §§  2127,  2128. 
Legislation  §  3076.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1707. 

§  3077.     What  is  insolvency  of  consignee.     A  person  is  in- 
solvent, within  the  meaning  of  the  last  section,  when  he  ceases 
to  pay  his  debts  in  the  manner  usual  with  persons  of  his  busi- 
ness, or  when  he  declares  his  inability  or  unwillingness  to  do  so. 
Insolvency,  defined:  See  post,  §  3450. 

Legislation  §  3077.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1708. 

§  3078.  Transit,  when  ended.  The  transit  of  property  is  at 
an  end  when  it  comes  into  the  possession  of  the  consignee,  or 
into  that  of  his  agent,  unless  such  agent  is  employed  merely 
to  forward  the  property  to  the  consignee. 

Legislation  §  3078.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1709. 

§3079.  Stoppage,  how  effected.  Rtoppage  in  transit  can  be 
effected  only  by  notice  to  the  carrier  or  depositary  of  the  prop- 
erty, or  by  taking  actual  possession  thereof. 

Legislation  §  3079.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1710. 


§  3087  CIVIL  CODE.  758 

§  3080.  Effect  of  stoppage.  Stoppage  in  transit  does  not, 
of  itself,  rescind  a  sale,  but  is  a  means  of  enforcing  the  lien  of 
the  seller. 

Legislation  §  3080.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1711. 


LE  XV. 

otiable  Instruments. 


Chapter  I.     Negot&al\]^nstruments  in  General.     Articles  I- VH.     §§3086- 
3155. 
Bills  \t  I^change.     Articles  I-Vin.     §§  3171-3228. 
Promi^orv  Notes.     §§  3244-3248. 

leck^ '§§  32.54,  325-5. 
BM^  Nates  and  Certificates  of  Deposit.     §§  3261,  3262. 


CHAPTER  I. 

Negotiable  Instruments  in  General. 

General  Definitions.     §§3086-3095. 

Interpretation.     §§  3099-3104. 

Indorsement.     §§3108-3125. 

Presentment  for  Payment.     §§  3130-3137. 

Dishonor.     §§  3141-3151. 

Excuse  of  Presentment  and  Notice.     §§  3155-3160. 

Extinction.     §§  3164,  3165. 

AETICLE  I. 

General  Definitions. 

§  3086.  To  what  instruments  this  title  is  applicable. 

3087.  Negotiable   instrument,  what. 

§  30S8.  Negotiable  instruments. 

§  3089.  Payee. 

§  3090.  Instrument  may  be  in  alternative. 

§  3091.  Date,  etc. 

§  3092.  May  contain  a  pledge,  etc. 

§  3093.  What  it  must  not  contain. 

§  3094.  Date. 

§  3095.  Different  classes  of  negotiable  instruments. 

§  3086.     To  what  instruments  this  title  is  applicable.     The 

provisions  of  this  title  apply  only  to  negotiable  instruments, 
as  defined  in  this  article. 

Legislation  §  3086.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1712. 

§  3087.  Negotiable  instrument,  what.  A  negotiable  instru- 
ment is  a  written  promise  or  request  for  the  payment  of  a 
certain  sum  of  money  to  order  or  bearer,  m  conformity  to  the 
provisions  of  this  article. 


759  NEGOTIABLE   INSTRUMENTS   IN    GENERAL.  §  3092 

Fictitious  payee:  See  ante,  §§  3102,  3103. 

Legislation  §  3087.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1713. 

§3088.  Negotiable  instruments,  A  negotiable  instrument 
must  be  made  payable  in  money  only  and  without  any  condi- 
tion not  certain  of  fulfillment,  except  that  it  may  provide  for 
the  payment  of  attorney's  fees  a"nd  costs  of  suit,  in  case  suit 
be  brought  thereon  to  compel  the  payment  thereof;  provided, 
however,  that  bonds  payable  to  bearer  shall  be  negotiable,  not- 
withstanding any  condition  contained  therein  or  in  the  mort- 
gage, deed  of  trust  or  other  instrument  securing  the  same. 
[Amendment  approved  1915;  Stats.  1915,  p.  99.] 

other  contract  in  instrument:  See  post,  §  3093. 

Legislation  §  3088.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1714. 

2.  Amended  by  Stats.  1905,  p.  96,  adding  the  exception.  And  then 
read:  "A  negotiable  instrument  must  be  made  payable  in  money  only 
and  without  any  condition  not  certain  of  fulfillment,  except  that  it 
may  provide  for  the  payment  of  attorney's  fees  and  costs  of  suit,  in 
case  suit  be  brought  thereon  to  compel  the  payment  thereof." 

3.  Amended  by  Stats.  1915,  p.  99. 

§  3089.  Payee.  The  person  to  whose  order  a  negotiable 
instrument  is  made  payable  must  be  ascertainable  at  the  time 
the  instrument  is  made. 

Fictitious  payee:    See  post,  §§  3102,  3103. 
Indorsement  in  blank:  See  post,  §  3125. 

Legislation  §  3089.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1715. 

§  3090.  Instrument  may  be  in  alternative.  A  negotiable 
instrument  may  give  to  the  payee  an  option  betAveen  the  pay- 
ment of  the  sum  specified  therein  and  the  performance  of  an- 
other act ;  but  as  to  the  latter,  the  instrument  is  not  within 
the  provisions  of  this  title. 

Legislation  §  3090.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1716. 

§  3091,  Date,  etc.  A  negotiable  instrument  may  be  with 
or  without  date,  and  with  or  without  designation  of  the  time 
or  place  of  payment. 

Antedating:   See  post,  §  3094. 
Time  of  payment:   See  post,  §  3248. 
Place  of  payment:  See  §§  3100,  3130,  3131,  subd.  4. 
Legislation  §  3091.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1717. 

§  3092.  May  contain  a  pledge,  etc.  A  negotiable  instru- 
ment may  contain  a  pledge  of  collateral  security,  with  author- 
ity to  dispose  thereof. 


§  3100  CIVIL  CODE.  760 

Legislation  §  3092.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1718. 

§  3093.  What  it  must  not  contain.  A  negotiable  instru- 
ment must  not  contain  any  other  contract  than  such  as  is 
specified  in  this  article. 

Legislation  §  3093.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1719. 

§  3094.  Date.  Any  date  may  be  inserted  by  the  maker  of 
a  negotiable  instrument,  whether  past,  present,  or  future,  and 
the  instrument  is  not  invalidated  by  his  death  or  incapacity 
at  the  time  of  the  nominal  date. 

Legislation  §  3094.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1720. 

§  3095.  Different  classes  of  negotiable  instruments.  There 
are  six  classes  of  negotiable  instruments,  namely : 

1.  Bills  of  exchange ; 

2.  Promissory  notes ; 

3.  Bank  notes; 

4.  Checks; 

5.  Bonds ; 

6.  Certificates  of  deposit. 

Bills  of  lading:  Ante,  §  2127. 

Certificates  of  stock  are  not  negotiable  instruments:  See  ante,  §  324. 
Bills  of  exchange:   See  post,  §§3171   et  scq. 
Promissory  notes:   See  post,  §§  3244  et  seq. 
Bank  notes:  See  post,  §  3261. 
Checks:   See  post,  §  3254  et  seq. 

Legislation  §  3095.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1721. 

ARTICLE  II. 

Interpretation  of  Negotiable  Instruments. 

§  3099.  Time  of  payment. 

§  3100.  Place  of  payment  not  specified. 

§  3101.  Instruments  payable  to  a  person  or  his  order,  how  construed. 

§  3102.  Unindorsed  note,  when  negotiable. 

§  3103.  Fictitious  payee. 

§  3104.  Presumption  of  consideration. 

§  3099.  Time  of  payment.  A  negotiable  instrument  which 
does  not  specify  the  time  of  payment,  is  payable  immediately. 

Time  of  payment:  See  ante,  §  3091. 

Legislation  §  3099.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1722. 

§  3100.  Place  of  payment  not  specified.  A  negotiable  in- 
strument which  does  not  specify  a  place  of  payment,  is  pay- 
able at  the  residence  or  place  of  business  of  the  maker,  or 


761  INTERPRETATION   OF  NEGOTIABLE  INSTRUMENTS.         §  8104 

wherever  he   may  be   found.     [Amendment   approved   1874; 
Code  Amdts.  1873-74,  p.  262.] 

Place  of  payment.  Where  no  place  of  payment  is  expressed  in  bill, 
drawee's  place  of  residence  is  understood:   Post,  §  3131,  subd.  1. 

Legislation  §  3100.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §1723),  and  then  read:  "A  negotiable  instru- 
ment which  does  not  specify  a  place  of  payment  is  payable  wherever 
it  is  held  at  its  maturity." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  262. 

§  3101..  Instruments  payable  to  a  person  or  his  order,  how 
construed.  An  instrument,  otherwise  negotiable  in  form,  pay- 
able to  a  person  named,  but  with  the  words  added,  "or  to  his 
order,"  or  "to  bearer,"  or  words  equivalent  thereto,  is  in 
the  former  case  payable  to  the  written  order  of  such  person, 
and  in  the  latter  case  payable  to  the  bearer. 

Legislation  §  3101.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1724. 

§3102.  Unindorsed  note,  when  negotiable.  A  negotiable 
instrument,  made  payable  to  the  order  of  the  maker,  or  of  a 
fictitious  person,  if  issued  by  the  maker  for  a  valid  considera- 
tion, without  indorsement,  has  the  same  effect  against  him 
and  all  other  persons  having  notice  of  the  facts  as  if  payable 
to  the  bearer. 

Fictitious  payee:   See  post,  §  3103. 
Payee  generally:   See  ante,  §  3089. 

Legislation  §  31T52.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1725. 

§  3103.  Fictitious  payee.  A  negotiable  instrument,  made 
payable  to  the  order  of  a  person  obviously  fictitious,  is  pay- 
able to  the  bearer. 

Legislation  §  3103.  Enacted  March  21,  1872;  based  on  "Field's  Draft, 
N.  Y.  Civ.  Code,  §  1726. 

§  3104.  Presumption  of  consideration.  The  signature  of 
every  drawer,  acceptor,  and  indorser  of  a  negotiable  instru- 
ment is  presumed  to  have  been  made  for  a  valuable  considera- 
tion, before  the  maturity  of  the  instrument,  and  in  the  ordi- 
nary course  of  business. 

Legislation  §  3104.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1727. 


§  3112  CIVIL  CODE.  762 

ARTICLE  III. 
Indorsement. 

§  3108.  Indorsement,  what. 

■§  3109.  Agreement  to  indorse. 

§  3110.  When  may  be  made  on  separate  paper. 

§3111.  Kinds   of  indorsement. 

§  3112.  General  indorsement,  what. 

§  3113.  Special  indorsement,  what. 

§  3114.  General  indorsement,  how  made  special. 

§  3115.  Destruction   of  negotiability  by   indorser. 

§  3116.  Implied  warranty  of  indorser. 

§  3117.  Indorser,  when  liable  to  payee, 

§  3118.  Indorsement   without   recourse. 

§3119.  Same. 

§  3120.  Indorsee  privy  to  contract. 

§  3121.  Rights  of  accommodation  indorser.     [Repealed.] 

§  3122.  Effect  of  want  of  consideration. 

§  3123.  Indorsee  in  due  course,  what. 

§  3124.  Rights  of  indorsee  in  due  course. 

§  3125.  Instrument  left  blank. 

§  3108.      Indorsement,   what.      One    who    writes   his   name 

upon  a  negotiable  instrument,  otherwise  than  as  a  maker  or 

acceptor,  and  delivers  it,  with  his  name  thereon,  to  another 

person,  is  called  an  indorser,  and  his  act  is  called  indorsement. 

Indorser  before  delivery:   See  post,  §  3117. 

Legislation  §  3108.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §1728. 

§  3109.  Agreement  to  indorse.  One  who  agrees  to  indorse 
a  negotiable  instrument  is  bound  to  write  his  signature  upon 
the  back  of  the  instrument,  if  there  is  sufficient  space  thereon 
for  that  purpose. 

Legislation  §  3109.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
.  N.  Y.  Civ.  Code,  §  1729. 

§  3110.     When  may  be  made  on  separate  paper.     When 
there  is  not  room  for  a  signature  upon  the  back  of  a  negoti- 
able  instrument,   a  signature   equivalent   to   an   indorsement 
thereof  may  be  made  upon  a  paper  annexed  thereto. 
Acceptance  on  separate  paper:   See  post,  §§  3195,  3196. 
Legislation  §  3110.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1730. 

§  3111.  Kinds  of  indorsement.  An  indorsement  may  be 
general  or  special. 

Legislation  §  3111.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1731. 

§  3112.  General  indorsement,  what.  A  general  indorse- 
ment is  one  by  which  no  indorsee  is  named. 

Legislation  §  3112.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1732. 


763  INDORSEMENT.  §  3116 

§  3113.  Special  indorsement,  what.  A  special  indorsement 
specifies  the  indorsee. 

Legislation  §  3113.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1733. 

§  3114.  General  indorsement,  how  made  special.  A  nego- 
tiable instrument  bearing  a  general  indorsement  cannot  be 
afterwards  specially  indorsed ;  but  any  lawful  holder  may 
turn  a  general  indorsement  into  a  special  one,  by  writing 
above  it  a  direction  for  payment  to  a  particular  person. 

Legislation  §  3114.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1734. 

§  3115.  Destruction  of  negotiability  by  indorser.  A  special 
indorsement  may,  by  express  words  for  that  purpose,  but  not 
otherwise,  be  so  made  as  to  render  the  instrument  not  nego- 
tiable. 

Legislation  §  3115.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1735. 

§  3116.  Implied  waranty  of  indorser.  Every  indorser  of  a 
negotiable  instrument,  unless  his  indorsement  is  qualified,  war- 
rants to  every  subsequent  holder  thereof,  who  is  not  liable 
thereon  to  him : 

First.     That  it  is  in  all  respects  what  it  purports  to  be. 

Second.     That  he  has  a  good  title  to  it. 

Third.  That  the  signatures  of  all  prior  parties  are  binding 
upon  them. 

Fourth.  That  if  the  instrument  is  dishonored,  the  indorser 
will,  upon  notice  thereof  duly  given  to  him,  or  without  notice, 
where  it  is  excused  by  law,  pay  the  same  with  interest,  unless 
exonerated  under  the  provisions  of  sections  thirty-one  hundred 
and  eighty-nine,  thirty-two  hundred  and  thirteen,  thirty-two 
hundred  and  forty-eight,  or  thirty-two  hundred  and  fifty-five. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  263.] 

Note.  Between  the  engagements  of  maker  and  acceptor  and  of 
drawer  and  indorser  this  distinction  exists,  that  the  contract  of  the 
maker  and  acceptor  is  absolute  to  pay  at  maturity,  and  no  presentment 
is  necessary  to  charge  them:  Post,  §  3130;  while  the  contract  of  the 
drawer  and  indorser  is  conditional,  being  contingent  upon  the  true  pre- 
sentment at  maturity,  and  due  notice  in  case  it  is  not  paid:  Post,  §§  3141- 
3151;  unless  a  sufficient  cause  intervene  excusing  the  holder  from  the 
performance   of   this   duty:    Post,  §§  3155-3160. 

Want  or  failure  of  consideration:  See  post,  §  3122. 

Acceptance  of  bill  of  exchange  admits  genuineness  of  drawer's 
signature:   See  post,  §  3199. 

Drawer  of  bill  of  exchange  on  acceptance  has  rights  of  a  first  in- 
dorser:  See  post,  §  3177. 

Legislation  §  3116.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1736),  (1)  the  introductory  paragraph  not 
having  the  words  "unless  his  indorsement  is  qualified";    (2)   the  sub- 


§  3122  CIVIL  CODE.  764 

divisions  of  the  section  being  designated  by  Arabic  numerals  instead 
of  Eoman  ordinals;  (3)  subd.  Fourth  reading,  "4.  That  if  the  instru- 
ment is  dishonored,  the  indorser  will,  upon  notice  thereof  duly  given  to 
him,  or  without  notice,  where  it  is  excused  by  law,  pay  so  much  of 
the  same  as  the  holder  paid  therefor,  with  interest,  unless  exonerated 
under  the  provisions  of  section  3189,  3248,  or  3255." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  263. 

§  3117.     Indorser,  when  liable  to  payee.     One  who  indorses 
a  negotiable  instrument  before  it  is  delivered  to  the  payee,  is 
liable  to  the  payee  thereon,  as  an  indorser. 
Indorser,  defined:  Ante,  §  3108. 

Legislation  §  3117.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1737. 

§  3118.  Indorsement  without  recourse.  An  indorser  may 
qualify  his  indorsement  with  the  words,  "without  recourse," 
or  equivalent  Avords ;  and  upon  such  indorsement,  he  is  re- 
sponsible only  to  the  same  extent  as  in  the  case  of  a  transfer 
without  indorsement. 

Legislation  §  3118.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1738. 

§  3119.  Same.  Except  as  otherAvise  prescribed  by  the  last 
section,  an  indorsement,  without  recourse,  has  the  same  effect 
as  any  other  indorsement. 

Legislation  §  3119.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1739. 

§3120.     Indorsee  privy  to  contract.     An  indorsee  of  a  ne- 
gotiable instrument  has  the  same  rights  against  every  prior 
party  thereto  that  he  would  have  had  if  the  contract  had  been 
made  directly  between  them  in  the  first  instance. 
Collateral  security,  etc.:   Ante,  §  293(i. 

Legislation  §  3120.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1740. 

§3121.     Rig-hts     of    accommodation     indorser.     [Repealed 

1874;  Code  Amdts.  1878-74,  p.  268.] 

Legislation  §  3121.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  263. 

§  3122.  Effect  of  want  of  consideration.  The  want  of  con- 
sideration for  the  undertaking  of  a  maker,  acceptor,  or  in- 
dorser of  a  negotiable  instrument  does  not  exonerate  him  from 
liability  thereon  to  an  indorsee  in  good  faith  for  a  considera- 
tion. 

Writing  imports  consideration:  Ante,  §  1C14. 

Legislation  §  3122.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1743. 


765  PRESENTMENT  FOR  PAYMENT.  §  3130 

§  3123.  Indorsee  in  due  course,  what.  An  indorsee  in  due 
course  is  one  Avho,  in  good  faitli,  in  the  ordinary  course  of 
businesss,  and  for  value,  before  its  apparent  maturity  or  pre- 
sumptive dishonor,  and  without  knowledge  of  its  actual  dis- 
honor, acquires  a  negotiable  instrument  duly  indorsed  to  him, 
or  indorsed  generallj^,  or  payable  to  the  bearer. 

Presumptive  dishonor:   See  post,  §  31. S3. 

Checks  are  an  exception  to  the  rule  of  "after  maturity":  Post,  §  3255, 
subd.  2. 

Legislation  §  3123.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1744. 

§  3124.  Rights  of  indorsee  in  due  course.  An  indorsee  of 
a  negotiable  instrument,  in  dvie  course,  acquires  an  absolute 
title  thereto,  so  that  it  is  valid  in  his  hands,  notwithstanding 
any  provision  of  law  making  it  generally  void  or  voidable, 
and  notwithstanding  any  defect  in  the  title  of  the  person  from 
whom  he  acquired  it. 

Assignment,  effect  on  defense:  See  Code  Civ.  Proc,  §  368. 
Non -negotiable  instruments,   assignments  of:    Ante,  §  1459. 
Legislation  §  3124.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1745. 

§  3125.  Instrument  left  blank.  One  Avho  makes  himself  a 
party  to  an  instrument  intended  to  be  negotiable,  but  which 
is  left  whollv  or  tartly  in  blank,  for  the  purpose  of  filling 
afterwards,  is  liable  upon  the  instrument  to  an  indorsee 
thereof  in  due  course,  in  whatever  manner  and  at  whatever 
time  it  may  be  filled,  so  long  as  it  remains  negotiable  in  form. 

Legislation  §  3125.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1746. 

ARTICLE  TV. 
Presentment  for  Payment. 

§  3130.  Effect  of  want  of  demand   on   principal  debtor. 

§3131.  Presentment,   how   made. 

§  3132.  Apparent  maturity,  when. 

§  3133.  Presumptive   dishonor  of  bill,  pavable  after  si^ht. 

§  3134.  Apparent  maturity  of  bill,  payable  at  sight. 

§  3135.  Apparent  maturitv  of  note. 

§  3136.  Same. 

§  3137.  Surrender  of  instrument,  when  a  condition  of  payment. 

S  3130.     Fiffeot  of  v^nt  o^  dern^vd  on  principal  debtor.     Tt 

is  not  uPco?:snrv  to  umke  a  demand  of  -navment  unon  the  prin- 
-<T,nl  riohtnr  in  n  negotiable  instrument  in  order  to  charere 
bim  :  but  if  thp  instrument  is  bv  its  terms  pavable  at  a  speei- 
fipd  place,  and  he  is  able  find  willing  to  pav  it  there  at  matu- 
rity, such  ability  and  willingness  are  equivalent  to  an  offer 
of  payment  upon  his  part. 


§  3131  CIVIL  CODE.  766 

Presentment  of  bill  of  exchange  for  acceptance:  Post,  §§  3185  et  seq. 
Presentment  of  bill  of  exchange  for  payment:  Post,  §§  3211  et  seq. 
Presentment  in  case  of  acceptance  for  honor:  Post,  §§  3206,  3207. 
Legislation  §  3130.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1747. 

§  3131.  Presentment,  how  made.  Presentment  of  a  nego- 
tiable instrument  for  payment,  when  necessary,  must  be  made 
as  follows,  as  nearly  as  by  reasonable  diligence  it  is  practi- 
cable. 

1.  The  instrument  must  be  presented  by  the  holder,  or  his 
agent ; 

2.  The  instrument  must  be  presented  to  the  principal 
debtor,  if  he  can  be  found  at  the  place  where  presentment 
should  be  made ;  and  if  not,  then  it  must  be  presented  to  some 
other  person  having  charge  thereof,  or  employed  therein,  if 
one  can  be  found  there ; 

3.  An  instrument  which  specifies  a  place  for  its  payment 
must  be  presented  there :  and  if  the  place  specified  includes 
more  than  one  house,  then  at  the  place  of  residence,  or  busi- 
ness, of  the  principal  debtor,  if  it  can  be  found  therein ; 

4.  An  instrument  which  does  not  specify  a  place  for  its  pay- 
ment must  be  presented  at  the  place  of  residence,  or  business, 
of  the  principal  debtor,  or  wherever  he  may  be  found,  at  the 
option  of  the  presenter ; 

5.  The  instrument  must  be  presented  upon  the  day  of  its 
maturity,  or,  if  it  is  payable  on  demand,  it  may  be  presented 
upon  any  day.  It  must  be  presented  within  reasonable  hours; 
and  if  it  is  payable  at  a  banking-house,  within  the  usual  bank- 
ing hours  of  the  vicinity,  but,  by  the  consent  of  the  person 
to  whom  it  should  be  presented,  it  may  be  presented  at  any 
hour  of  the  day ; 

6.  If  the  principal  debtor  has  no  place  of  business,  or  if  his 
place  of  business,  or  residence,  cannot,  with  reasonable  dili- 
gence, be  ascertained,  presentment  for  payment  is  excused. 
[Amendment  approved  1905;  Stats.  1905,  p.  620.] 

Apparent  maturity:   See  post,  §§  3132,  3134,  3135. 

Presentment  of  bills  of  exchange  for  acceptance:  See  post,  §§  3185 
et  seq. 

Presentment  of  bills  of  exchange  for  payment:  See  post,  §§  3211  et 
seq. 

Bills  of  exchange,  where  payable:  See  post,  §  3176. 

Reasonable  diligence:  Post,  §  3158. 

Legislation  §  3131.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  174S),  (1)  the  introductory  paragraph  reading 
as  at  present;  (2)  suhd.  1  not  having:  the  words  "or  his  agent"  at  end 
of  subdivision  (these  words  being  added  in  1905)  ;  (3)  subd.  2,  after 
the  words  "should  be  made,"  reading,  "and  if  not,  then  it  must  be 
presented  to  some  other  person  of  discretion,  if  one  can  be  found 
there;  and  if  not,  then  it  must  be  presented  to  a  notary  public  within 


767  PRESENTMENT  FOR  PAYMENT.  §  3135 

the  state";  (4)  subds.  3  and  4  reading  as  at  present;  (5)  subd.  5  read- 
ing, "5.  The  instrument  must  be  presented  upon  the  day  of  its  appar- 
ent maturity,  or,  if  it  is  payable  on  demand,  at  any  time  before  its 
apparent  maturity,  within  reasonable  liours;  and,  if  it  is  payable  at  a 
banking-house,  within  the  usual  banking  hours  of  the  vicinity;  but,  by 
the  consent  of  the  person  to  whom  it  should  be  presented,  it  may  be 
presented  at  any  hour  of  the  day,"  this  subdivision  then  ending  the 
section,  subd.  6  being  added  in  1873-74. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  263,  and  differed  from  the 
amendment  of  1905,  (1)  in  subd.  1,  not  having  the  words  "or  his  agent" 
at  end  of  subdivision;  (2)  in  subd.  5,  having  "be"  instead  of  "is"  in 
both  instances;  (3)  in  subd.  6  (which  was  new  in  this  amendment), 
having  "have"  instead  of  "has." 

3.  Amendment  by  Stats.  1901,  p.  419;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  620;  the  code  commissioner  saying 
of  the  addition  of  the  words  "or  his  agent"  in  subd.  1,  "The  design 
of  the  amendment  is  to  conform  the  section  in  this  respect  to  §  3186." 

§  3132.  Apparent  maturity,  when.  The  apparent  maturity 
of  a  negotiable  instrument,  payable  at  a  particular  time,  is  the 
day  on  Avhich,  by  its  terms,  it  becomes  due,  or  when  that  is 
a  holiday,  the  next  business  day. 

Apparent  maturitiy:   See  post,  §§  3134,  3135. 

Legislation  §  3132.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1749. 

§  3133.     Presumptive  dishonor  of  bill,  payable  after  sight. 

A  bill  of  exchange,  payable  at  a  certain  time  after  sight,  which 
is  not  accepted  within  ten  days  after  its  date,  in  addition  to 
the  time  which  Avould  suffice,  with  ordinary  diligence,  to  for- 
ward it  for  acceptance,  is  presumed  to  have  been  dishonored. 
Legislation  §  3133  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y-.  Civ.  Code,  §  1750. 

§  3134.  Apparent  maturity  of  bill,  payable  at  sight.  The  ap- 
parent maturity  of  a  bill  of  exchange,  payable  at  sight  or  on 
demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date ;  or, 

2.  If  it  does  not  bear  interest,  ten  days  after  its  date,  in 
addition  to  the  time  which  would  suffice,  with  ordinary  dili- 
gence, to  forward  it  for  acceptance. 

Mere  delay  in  presentment  does  not  exonerate:   Post.  §  3214. 

Presentment  not  made  within  the  time,  and  not  excused,  exonerates 
drawer  and  indorsers:  Post,  §  3213.  Rule  modified  in  case  of  checks: 
Post,  §  3255. 

Legislation  §  3134.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1751. 

§  3135.  Apparent  maturity  of  note.  The  apparent  matu- 
rity of  a  promissory  note,  payable  at  sight  or  on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date ;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 


§  3142  CIVIL  CODE.  768 

Note.     §  3214,  post,  applies  also  to  promissory  notes:  See  post,  §  3247. 
Presentment  not  made  within  the  time,  and  not  excused,  exonerates 
the  indorsers:   Post,  §  3248. 

Legislation  §  3135.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1752. 

§  3136.  Same.  Where  a  promissory  note  is  payable  at  a 
certain  time  after  sight  or  demand,  such  time  is  to  be  added 
to  the  periods  mentioned  in  the  last  section. 

Legislation  §  3136.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1753. 

§  3137.  Surrender  of  instrument,  when  a  condition  of  pay- 
ment. A  party  to  a  negotiable  instrument  may  require,  as  a 
condition  concurrent  to  its  payment  by  him : 

1.  That  the  instrument  be  surrendered  to  him,  unless  it  is 
lost  or  destroyed,  or  the  holder  has  other  claims  upon  it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instrument  and  does 
retain  it,  then  that  a  receipt  for  the  amount  paid,  or  an  exon- 
eration of  the  party  paying,  be  written  thereon ;  or, 

3.  If  the  instrument  is  lost  or  destroyed,  then  that  the  holder 
give  to  him  a  bond,  executed  by  himself  and  two  sufficient 
sureties,  to  indemnify  him  against  any  lawful  claim  thereon. 

Legislation  §  3137.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
K  Y.  Civ.  Code,  §  1754. 

ARTICLE  V. 

Dishonor  of  Negotiable  Instruments. 

§  3141.  Dishonor,  what. 

§  3142.  Notice,  by  whom  given. 

§  3143.  Form    of   notice. 

§  3144.  Notice,  how  served. 

§  3145.  Notice,  how  served  after  indorser's  death. 

§3146.  Notice  given  in  ignorance  of  death,  valid. 

§  3147.  Notice,  when  to  be  given. 

§  3148.  Notice  of  dishonor,  when  to  be  mailed. 

§  3149.  •  Notice,  how  given  by  agent. 

§  3150.  Additional  time  for  notice  by  indorser. 

§  3151.  Effect  of  notice   of  dishonor. 

§  3141.  Dishonor,  what.  A  negotiable  instrument  is  dis- 
honored, when  it  is  either  not  paid,  or  not  accepted,  according 
to  its  tenor,  on  presentment  for  the  purpose,  or  Avithout  pre- 
sentment, where  that  is  excused. 

Presentment  for  acceptance:   See  post.  §  3186. 
Dishonor  of  bill  by  non-acceptance:  Post.  §§  3187.  318S,  3194. 
Damages  allowed  on  dishonor  of  foreign  bills  of  exchange:  See  post, 
§§  3234-3238. 

Legislation  §  3141.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1755. 

§  3142.  Notice,  by  whom  given.  Notice  of  the  dishonor  of 
a  negotiable  instrument  may  be  given : 


769  DISHONOR  OF  NEGOTIABLE  INSTRUMENTS.  §  3145 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  compelled 
to  pay  it  to  the  holder,  and  Avho  would,  upon  taking  it  up, 
have  a  right  to  reimbursement  from  the  party  to  whom  the 
notice  is  given. 

Protest  of  bill  of  exchange:   See  post,  §  322.5. 
Notice  of  protest:   See  post.  §  .'52.31. 

Notice  of  dishonor  to  acceptor  for  honor:  See  §§  3206,  3207. 
Legislation  §  3142.     Enacted  March  21,  1872;  based  on  Field's  T)raft, 
N.  Y.  Civ.  Code,  §  17.56. 

§  3143.  Fonn  of  notice.  A  notice  of  dishonor  may  be  given 
in  any  form  which  describes  the  instrument  with  reasonable 
certainty,  and  substantially  informs  the  party  receiving  it  that 
the  instrument  has  been  dishonored. 

Notice  of  dishonor  of  foreign  bills  of  exchange:   Post,  §  322.5. 
Legislation  §  3143.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1757. 

§  3144.  Notice,  how  served.  A  notice  of  dishonor  may  be 
given : 

1.  By  delivering  it  to  the  party  to  be  charged,  personally, 
at  any  place ;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the  place 
of  residence  or  business  of  such  party,  apparently  acting  for 
him ;  or, 

3.  By  properly  folding  the  notice,  directing  it  to  the  party 
to  be  charged,  at  his  place  of  residence,  according  to  the  best 
information  that  the  person  giving  the  notice  can  obtain,  de- 
positing it  in  the  post-oi^ce  most  conveniently  accessible  from 
the  place  where  the  presentment  _was  made,  and  paying  the 
postage  thereon. 

Notary's  protest  as  evidence:  See  Pol.  Code,  §  795. 

Foreign  bills  of  exchange,  notice  of  dishonor,  how  given:  See  post, 
§3231. 

Legislation  §  3144.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1758. 

§3145.  Notice,  how  served  after  indorser's  death.  Incase 
of  the  death  of  a  party  to  whom  notice  of  dishonor  should 
otherwise  be  given,  the  notice  must  be  given  to  one  of  his  per- 
sonal representatives;  or,  if  there  are  none,  then  to  any  mem- 
ber of  his  family  who  resided  with  him  at  his  death ;  or,  if 
there  is  none,  then  it  must  be  mailed  to  his  last  place  of  resi- 
dence, as  prescribed  by  subdivision  three  of  the  last  section. 
Legislation  §  3145.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1759. 
Civ.  Codp— 49 


§  3151  CIVIL  CODE.  770 

§  3146.  Notice  given  in  ignorance  of  death,  valid.  A  no- 
tice of  dishonor  sent  to  a  party  after  his  death,  but  in  ignor- 
ance thereof,  and  in  good  faith,  is  valid. 

Legislation  §  3146.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1760. 

§  3147.  Notice,  when  to  be  given.  Notice  of  dishonor, 
when  given  by  the  holder  of  an  instrument  or  his  agent,  other- 
wise than  by  mail,  must  be  given  on  the  day  of  dishonor,  or  on 
the  next  business  day  thereafter. 

Legislation  §  3147.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1761. 

§  3148.  Notice  of  dishonor,  when  to  be  mailed.  When  no- 
tice of  dishonor  is  given  by  mail,  it  must  be  deposited  in  the 
post-office  in  time  for  the  first  mail  which  closes  after  noon 
of  the  first  business  day  succeeding  the  dishonor,  and  which 
leaves  the  place  where  the  instrument  was  dishonored,  for  the 
place  to  which  the  notice  should  be  sent. 

Legislation  §  3148.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1762. 

§  3149.  Notice,  how  given  by  agent,  "When  the  holder  of 
a  negotiable  instrument,  at  the  time  of  its  dishonor,  is  a  mere 
agent  for  the  owner,  it  is  sufficient  for  him  to  give  notice  to  his 
principal  in  the  same  manner  as  to  an  indorser,  and  his  prin- 
cipal may  give  notice  to  any  other  party  to  be  charged,  as  if 
he  were  himself  an  indorser.  And  if  an  agent  of  the  OAvner 
employs  a  subagent,  it  is  sufficient  for  each  successive  agent 
or  subagent  to  give  notice  in  like  manner  to  his  own  principal. 
Legislation  §  3149.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1763. 

§  3150.  Additional  time  for  notice  by  indorser.  Every 
party  to  a  negotiable  instrument,  receiving  notice  of  its  dis- 
honor, has  the  like  time  thereafter  to  give  similar  notice  to 
prior  parties  as  the  original  holder  had  after  its  dishonor. 
But  this  additional  time  is  available  only  to  the  particular 
party  entitled  thereto. 

Legislation  §  3150.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1764. 

§  3151.  Effect  of  notice  of  dishonor.  A  notice  of  the  dis- 
honor of  a  negotiable  instrument,  if  valid  in  favor  of  the  party 
giving  it,  inures  to  the  benefit  of  all  other  parties  thereto 
whose  right  to  give  the  like  notice  has  not  then  been  lost. 

Legislation  §  3151.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1765. 


771  ,  EXCUSE  OF  PRESENTMENT  AND  NOTICE.  §  3158 

ARTICLE  VI. 

Excuse  of  Presentment  and  Notice. 

§  3155.  Notice   of   dishonor,  when  excused. 

§  3156.  Presentment   and   notice,   when   excused. 

§  3157.  Same. 

§  3158.  Delay,   when   excused.  • 

§  3159.  Waiver  of  presentment  and  notice. 

§  3160.  Waiver  of  protest. 

§  3155.  Notice  of  dishonor,  when  excused.  Notice  of  dis- 
honor is  excused: 

1.  When  the  party  by  whom  it  should  be  given  cannot,  with 
reasonable  diligence,  ascertain  either  the  place  of  residence 
or  business  of  the  party  to  be  charged ;  or, 

2.  When  there  is  no  post-office  communication  between  the 
town  of  the  party  by  whom  the  notice  should  be  given  and 
the  town  in  which  the  place  of  residence  or  business  of  the 
party  to  be  charged  is  situated ;  or, 

3.  When  the  party  to  be  charged  is  the  same  person  who 
dishonors  the  instrument ;  or, 

4.  When  the  notice  is  waived  by  the  party  entitled  thereto. 
Waiver  of  notice:    See   post,  §  3159. 

Subd.  1.  Reasonable  diligence:  See  ante,  §  3131,  subd.  6,  wherein 
presentment  is  excused  for  the  same  reason. 

Subd.  2.  Notice  by  mail.  It  is  generally  held  that  the  notice  should 
be  addressed  to  the  post-office  at  or  nearest  to  the  party's  residence  or 
place  of  business:  See  ante,  §  3144,  subd.  3. 

Waiver  of  protest  of  foreign  bill:  Post,  §  3232. 

Excuse  of  presentment  of  bill  of  exchange  and  notice:  Post,  §§  3218 
et  seq. 

Legislation  §  3155.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1766. 

§  3156.  Presentment  and  notice,  when  excused.  Present- 
ment and  notice  are  excused  as  to  any  party  to  a  negotiable 
instrument  who  informs  the  holder,  within  ten  days  before  its 
maturity,  that  it  will  be  dishonored. 

Legislation  §  3156.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1767. 

2.  Amendment  by  Stats.  1901,  p.  420;  unconstitutional.  See  note, 
§  4,  ante. 

§  3157.  Same.  If,  before  or  after  the  maturity  of  an  in- 
strument, an  indorser  has  received  full  security  for  the  amount 
thereof,  or  the  maker  has  assigned  all  his  estate  to  him  as  such 
security,  presentment  and  notice  to  him  are  excused. 

Legislation  §  3157.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  176S. 

§  3158.  Delay,  when  excused.  Delay  in  presentment,  or  in 
giving  notice  of  dishonor,  is  excused  when  caused  by  circum- 


I 


§  3165  CIVIL  CODE.  ,        772 

stances  which  the  party  delaying  conld  not  have  avoided  by 
the  exercise  of  reasonable  care  and  diligence. 

Delay  in  presentment  for  acceptance:   See  post,  §  3219. 
Delay  in  presenting  bill  for  payment:   Post,  §§  321.3,  3214. 
Reasonable  diligence:    See  ante,  §§  3131,  3155;   post,  §  3213. 
Legislation  §  3158.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1769. 

§  3159.  Waiver  of  presentment  and  notice.  A  waiver  of 
presentment  Avaives  notice  of  dishonor  also,  unless  the  con- 
trary is  expressly  stipulated ;  but  a  Avaiver  of  notice  does  not 
waive  presentment. 

Legislation  §  3159.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  1770. 

§  3160.  Waiver  of  protest.  A  waiver  of  protest  on  any 
negotiable  instrument  other  than  a  foreign  bill  of  exchange 
waives  presentment  and  notice. 

Protest  of  foreign  bills:   See  post,  §§  3225  et  seq. 
Legislation  §  3160.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1771. 

AETICLE   Vn. 

Extinction  of  Negotiable  Instruments. 

§  3164.     Obligation,   of    party,    when    extinguished. 
§  3165.     Eevival  of  obligation.     [Repealed.] 

§  3164.  Obligation  of  party,  when  extinguished.  The  obli- 
gation of  a  party  to  a  negotiable  instrument  is  extinguished : 

1.  In  like  manner  with  that  of  parties  to  contracts  in  gen- 
eral ;  or, 

2.  By  payment  of  the  amount  due  upon  the  instrument,  at 
or  after  its  maturity,  in  good  faith  and  in  the  ordinary  course 
of  business,  to  any  person  having  actual  possession  thereof, 
and  entitled  by  its  terms  to  payment. 

Extinction  of  obligations,  in  general:  See  ante.  §§  1473  et  seq. 
Legislation  §  3164.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1772. 

§3165.  Revival  of  obligation.  [Eepealed  1874;  Code 
Amdts.  1873-74,  p.  264.] 

Legislation  §  3165.     1.  Enacted  March  21.  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  264. 


773  BILLS  OF  EXCHANGE.  §  3174 

CHAPTER  II. 

Bills  of  Exchange. 

Article  T.  Form    and    Interpretation.     §§  3171-3177. 

II.  Days  of  Grace.     §  3181. 

III.  Presentment  for  Acceptance.     §§  3185-3189. 

IV.  Acceptance.     §§  3193-3199. 

V.  Acceptance  or  Payment  for  Honor.     §§  3203-3207. 

VI.  Presentment    for    Payment.     §§3211-3214. 

VII.  Excuse   of   Presentment   and  Notice.     §§  3218-3220. 

VIII.  Foreign   Bills.     §§3224-3238. 

ARTICLE    I. 

Form  and  Interpretation  of  a  Bill. 

§  3171.  Bill  of  exchange,  what. 

§  3172.  Drawee,  in  case  of  need. 

§  3173.  Bill  in  parts  of  a  set. 

§  3174.  When  must  be  in  a  set. 

§  317.5.  Presentment,  etc.,  of  part  of  set. 

§  3176.  Bill,   where   payable. 

§  3177.  Eights    and    olaligations    of    drawer. 

§  3171.  Bill  of  exchange,  what.  A  bill  of  exchange  is  an 
instrument,  negotiable  in  form,  by  which  one,  who  is  called 
the  drawer,  requests  another,  called  the  drawee,  to  pay  a  speci- 
fied sum  of  money. 

Legislation  §  3171.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1774. 

§  3172.  Drawee,  in  case  of  need.  A  bill  of  exchange  may 
give  the  name  of  any  person  in  addition  to  the  drawee,  to  be 
resorted  to  in  case  of  need. 

Acceptance  or  payment  for  honor:   See  post,  §§  3203  et  seq. 
Presentment  to  drawee  in  case  of  need:  Post,  §  3188. 
Legislation  §  3172.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1775. 

§  3173.     Bill  in  parts  of  a  set.     A  bill  of  exchange  may  be 

drawn  in  any  number  of  parts,  each  part  stating  the  existence 

of  the  others,  and  all  forming  one  set. 

Damages  for  non-payment  of  foreign  bill  drawn  in  parts:   See  post, 
§3234. 

Legislation  §  3173.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1776. 

§  3174.  When  must  be  in  a  set.  An  agreement  to  draw  a 
bill  of  exchange  ])inds  the  drawer  to  execute  it  in  three  parts, 
if  the  other  party  to  the  agreement  desires  it. 

Legislation  §  3174.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1777. 


§  3177  CIVIL  CODE.  774 

§  3175.  Presentment,  etc.,  of  part  of  set.  Presentment,  ac- 
ceptance, or  payment,  of  a  single  part  in  a  set  of  a  bill  of  ex- 
change, is  sufficient  for  the  whole. 

Presentment  for  acceptance:   See  post,  §  3186. 
Presentment  to  joint  drawees:   See  post,  §  3187. 

Legislation  §  31"75.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1778. 

§  3176.     Bill,  where  payable.     A  bill  of  exchange  is  payable : 

1.  At  the  place  Avhere,  by  its  terms,  it  is  made  payable. 

2.  If  it  specifies  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed. 

3.  If  it  is  not  addressed  to  any  place,  then  at  the  place  of 
residence  or  business  of  the  drawee,  or  wherever  he  may  be 
found.  If  the  drawee  has  no  place  of  business,  or  if  his  place 
of  business  or  residence  cannot,  with  reasonable  diligence,  be 
ascertained,  presentment  for  payment  is  excused,  and  the  bill 
may  be  protested  for  non-payment.  [Amendment  approved 
1905;  Stats.  1905,  p.  620.] 

Negotiable  instrument  specifying  place  of  payment:  See  ante, 
§§  3150  et  seq. 

Legislation  §  3176.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1779),  and  then  read:  "A  bill  of  exchange  is 
payable:  1.  At  the  place  where,  by  its  terms,  it  is  made  payable;  or,  2. 
If  it  specifies  no  place  of  payment,  then  at  the  place  to  which  it  is 
addressed;  or,  3.  If  it  is  not  addressed  to  any  place,  then  at  the  place 
of  residence  or  business  of  the  drawee,  or  wherever  he  may  be  found; 
or,  4.  If  this  cannot  be  done,  then  at  the  office  of  any  notary  public  in 
the  state." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  264,  and  differed  from  the 
amendment  of  1905,  (1)  in  subd.  1,  having  the  word  "or"  at  end  of 
subdivision;  (2)  in  subd.  2,  having  (a)  "specify"  instead  of  "specifies," 
and  (b)  "or"  at  end  of  subdivision;  (3)  in  subd.  3,  (a)  having  "be" 
instead  of  "is"  after  "If  it,"  and  (b)  in  second^  sentence  not  having 
the  word  "cannot"  after  "residence"  in  the  enrolled  bill,  although  in- 
closed in  brackets  in  the  official  bound  volume  of  the  statutes. 

3.  Amendment  by  Stats.  1901,  p.  420;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  620. 

§  3177.  Rights  and  obligations  of  drawer.  The  rights  and 
obligations  of  the  drawer  of  a  bill  of  exchange  are  the  same 
as  those  of  the  first  indorser  of  any  other  negotiable  instru- 
ment. 

Rights  of  indorser:   See  ante,  §§  3108  et  seq.,  3141  et  seq. 
Contract  of  indorser:   Ante,  §  3116. 

Promissory   notes.     This    section   applies   to:    See    post,  §  3247. 
Legislation  §  3177.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  17S0. 


775  DAYS  OF  GRACE.      PRESENTMENT  FOR  ACCEPTANCE.       §  3186 

AETICLE   II. 

Days  of  Grace. 

§  3181.     Days  of  grace. 

§  3181.     Days  of  grace.     Days  of  grace  are  not  allowed. 

Legislation  §  3181.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
iSr.  Y.  Civ.  Code,  §  1781. 

ARTICLE  III. 

Presentment  for  Acceptance. 

§  3185.  When  a  bill  may  be  presented. 

§  3186.  Presentment,  how  made. 

§  3187.  Presentment  to  joint  drawees. 

§  3188.  When  presentment  to  be  made  to  drawee  in  ease  of  need. 

§  3189.  Presentment,   when   must   be   made. 

§  3185.  When  a  bill  may  be  presented.  At  any  time  before 
a  bill  of  exchange  is  payable,  the  holder  may  present  it  to  the 
drawee  for  acceptance,  and  if  acceptance  is  refused,  the  bill  is 
dishonored. 

Acceptance,  how  made:  Post,  §§  3193  et  seq. 

Presentment  in  case  of  accepta,nce  for  honor:  Post,  §§  3206,  3207. 
Legislation  §  3185.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1782. 

§  3186.  Presentment,  how  made.  Presentment  for  accept- 
ance must  be  made  in  the  following  manner,  as  nearly  as  by 
reasonable  diligence  it  is  practicable. 

First.  The  bill  must  be  presented  by  the  holder  or  his 
agent. 

Second.  It  must  be  presented  on  a  business  day,  and  within 
reasonable  hours. 

Third.  It  must  be  presented  to  the  drawee,  or,  if  he  be 
absent  from  his  place  of  residence  or  business,  to  some  person 
having  charge  thereof,  or  employed  therein ;  and. 

Fourth.  The  drawee,  on  such  presentment,  may  postpone 
his  acceptance  or  refusal  until  the  next  day.  If  the  drawee 
have  no  place  of  business,  or  if  his  place  of  business  or  resi- 
dence cannot,  with  reasonable  diligence,  be  ascertained,  pre- 
sentment for  acceptance  is  excused,  and  the  bill  may  be  pro- 
tested for  non-acceptance.  [Amendment  approved  1874 ;  Code 
Amdts.  1873-74,  p.  265.] 

Presentment  of  part  of  set:  Ante,  §  3175. 

Presentment  for  pajonent,  generally:   Ante,  §§  3130  et  seq. 

Presentment  of  bill  of  exchange  for  payment:  See  post,  §§  3211  et 
seq. 

Legislation  §  3186.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1783),  and  then  read:   "Presentment  for  ac- 

kceptance  must  be  made  in  the  following  manner,  as  nearly  as  by  rea- 
sonable  diligence  it  is  practicable:   1.  The  bill  must  be  presented  by 


I 


§  3193  CIVIL  CODE.  776 

the  holder;  2.  It  must  be  presented  on  a  business  day,  and  within 
reasonable  hours;  3.  It  must  be  presented  to  the  drawee,  if  he  can  be 
found  within  the  state;  and  if  not,  then. at  his  place  of  residence  or 
business,  if  within  the  state,  to  any  person  of  discretion  therein;  and 
if  he  has  no  such  place  of  residence  or  business,  or  there  is  no  person 
of  discretion  therein,  then  to  any  notary  public  in  the  state;  and,  4.  If 
the  drawee  requests  it,  the  bill  must  be  left  with  him  until  the  same 
hour  of  the  next  day,  to  which  time  he  may  postpone  his  acceptance 
or  refusal." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  265. 

§3187.  Presentment  to  joint  drawees.  Presentment  for 
acceptance  to  one  of  several  joint  drawees,  and  refusal  by 
him,  dispenses  with  presentment  to  the  others. 

Legislation  §  3187.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1784. 

§  3188.     When  presentment  to  be  made  to  draw^ee  in  case  of 
need.     A  bill  of  exchange  which  specifies  a  draAvee  in  case  of 
need,  mnst  be  presented  to  him  for  acceptance  or  payment,  as 
the  case  may  be,  before  it  can  be  treated  as  dishonored. 
Drawee  in  case  of  need:   Ante,  §  3172. 

Legislation  §  3188.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1785. 

§  3189.  Presentment,  when  must  be  made.  When  a  bill  of 
exchange  is  payable  at  a  specified  time  after  sight,  the  drawer 
and  indorsers  are  exonerated  if  it  is  not  presented  for  accept- 
ance Avithin  ten  days  after  the  time  which  Avould  suffice,  with 
ordinary  diligence,  to  forward  it  for  acceptance,  unless  pre- 
sentment is  excused. 

Exoneration  by  delay:  See  post.  §§  3213,  3214,  3248. 
Legislation  §  3189.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1786. 

AETICLE  IV. 

Acceptance. 

§  3193.  Acceptance,   how  made. 

§  3194.  Holder  entitled  to  acceptance  on  face   of  bill. 

§  3195.  What  acceptance  sufficient  with  consent  of  holder. 

§  3196.  Acceptance  by  separate  instrument. 

§  3197.  Promise  to  accept,  when  equivalent  to  acceptance. 

§  3198.  Cancellation  of  acceptance. 

§3199.  What  is  admitted  by  acceptance. 

§  3193.     Acceptance,  how  made.     An  acceptance  of  a  bill 
must  be  made  in  writing,  l)y  the  drawee  or  by  an  acceptor  for 
honor,  and  may  be  made  by  the  acceptor  Avriting  his  name 
across  the  face  of  the  bill,  with  or  without  other  words. 
Acceptance  for  honor:   See  post,  §  3203. 

Legislation  §  3193.     Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code.  §  1787. 


1 


777  ACCEPTANCE  OP  BILLS  OF  EXCHANGE.  §  3197 

§  3194.     Holder  entitled  to  acceptance  on  face  of  bill.     The 

holder   of  a  bill   of  exchange,   if  entitled  to   an  acceptance 
thereof,  may  treat  the  bill  as  dishonored  if  the  drawee  refuses 
to  write  across  its  face  an  unqualified  acceptance. 
Acceptance  on  separate  paper:   See  post,  §§  3195,  3196. 
Legislation  §  3194.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1788. 

§  3195.     What  acceptance  sufficient  with  consent  of  holder. 

The  holder  of  a  bill  of  exchange  may,  without  prejudice  to 
his  rights  against  prior  parties,  receive  and  treat  as  a  suffi- 
cient acceptance : 

1.  An  acceptance  written  upon  any  part  of  the  bill,  or  upon 
a  separate  paper ; 

2.  An  acceptance  qualified  so  far  only  as  to  make  the  bill 
payable  at  a  particular  place  within  the  city  or  town  in  which, 
if  the  acceptance  was  unqualified,  it  would  be  payable ;  or, 

3.  A  refusal  by  the  drawee  to  return  the  bill  to  the  holder 
after  presentment,  in  which  case  the  bill  is  payable  immedi- 
ately, without  regard  to  its  terms. 

Acceptance  on  separate  paper:   See  ante,  §  3110;  post,  §  3196. 
Acceptance,  generally:   Ante,  §  3193. 

Legislation  §  3195.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1789. 

§  3196.  Acceptance  by  separate  instrument.  The  accept- 
ance of  a  bill  of  exchange,  by  a  separate  instrument,  binds  the 
acceptor  to  one,  who,  upon  the  faith  thereof,  has  the  bill  for 
value  or  other  good  consideration. 

Acceptance  on  separate  instrument:  See  ante,  §§3110,  3195. 
Legislation  §  3196.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1790. 

§  3197.     Promise  to  accept,  when  equivalent  to  acceptance. 

An  unconditional  promise,  in  writing,  to  accept  a  bill  of  ex- 
change, is  a  sufficient  acceptance  thereof,  in  favor  of  every 
person  who  upon  the  faith  thereof  has  taken  the  bill  for  value. 
[Amendment  approved  1905:  Stats.  1905.  p.  621.] 

Legislation  §  3197.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1791 ;  Bills  of  Exchange  and  Promissory  Notes 
Act  of  1850,  Stats.  1850,  p.  247,  §  8),  and  then  had  the  words  "or  other 
good  consideration"  at  end  of  section. 

2.  Amendment  by  Stats.  1901,  p.  421;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  621,  omitting  "or  other  good  con- 
sideration" at  end  of  section;  the  code  commissioner  saying,  "The  pres- 
ence of  these  words  implies  that  a  consideration  other  than  'for  value' 
may  support  a  promise  in  writing  to  accept  a  bill.  Such  is  not  in- 
tendied  to  be  the  law." 


§  3204  CIVIL  CODE.  778 

§  3198.  Cancellation  of  acceptance.  The  acceptor  of  a  bill 
of  exchange  may  cancel  his  acceptance  at  any  time  before  de- 
livering the  bill  to  the  holder,  and  before  the  holder  has,  with 
the  consent  of  the  acceptor,  transferred  his  title  to  another 
person  who  has  given  value  for  it  upon  the  faith  of  such 
acceptance. 

Legislation  §  3198.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1792. 

§  3199.    What  is  admitted  by  acceptance.     The  acceptance 

of  a  bill  of  exchange  admits  the  signature  of  the  drawer,  but 

does  not  admit  the  signature  of  any  indorser  to  be  genuine. 

[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  265.] 

Genuineness  of   signature  warranted  by  indorser:    See   ante,  §  3116, 

subd.  3. 

Legislation  §  3199.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1793),  and  then  read:  "The  acceptance  of  a 
bill  of  exchange  admits  the  capacity  of  the  drawer  to  draw  and  in- 
dorse it;  and  if  written  upon  the  bill,  it  also  admits  the  same  to  be 
genuine,  and  binding  upon  the  drawer;  but  it  does  not  admit  the  signa- 
ture of  any  indorser  to  be  genuine." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  265. 

ARTICLE   V. 

Acceptance  or  Payment  for  Honor. 

§  3203.  When  bill  may  be  accepted  or  paid  for  honor. 

§  3204.  Holder  of  bill  of  exchange  bound  to  accept  payment  for  honor. 

§  3205.  Acceptance  for  honor,  how  made. 

§  3206.  How   enforced. 

§  3207.  Notice  of  dishonor  not  excused  by  acceptance  for  honor. 

§  3203.    When  bill  may  be  accepted  or  paid  for  honor.     On 

the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and,  in  case 
of  a  foreign  bill,  after  it  has  been  duly  protested,  it  may  be 
accepted  or  paid  by  any  person,  for  the  honor  of  any  party 
thereto. 

Drawee  in  case  of  need:   See  ante,  §  3172. 

Pajrment  of  foreign  bill  for  honor:   Post,  §  3233. 

Acceptor  for  honor  is,  in  effect,  the  maker  of  a  promissory  note: 
Post,  §  3246. 

Legislation  §  3203.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1794. 

§3204.  Holder  of  bill  of  exchange  bound  to  accept  pay- 
ment for  honor.  The  holder  of  a  bill  of  exchange  is  not  bound 
to  allow  it  to  be  accepted  for  honor,  but  is  bound  to  accept 
payment  for  honor. 

Acceptance,  how  made:   See  ante,  §§  3193  et  seq. 
Acceptance  for  honor,  how  made:   Post,  §  3205. 

Legislation  §  3204.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.. Code.  §  1795. 


779  PRESENTMENT  FOR  PAYMENT,  §  3211 

§  3205.  Acceptance  for  honor,  how  made.  An  acceptor  or 
payor  for  honor  must  write  a  memorandum  upon  the  bill, 
stating  therein  for  whose  honor  he  accepts  or  pays,  and  must 
give  notice  to  such  parties,  with  reasonable  diligence,  of  the 
fact  of  such  acceptance  or  payment.  Having  done  so,  he  is 
entitled  to  reimbursement  from  such  parties,  and  from  all  par- 
ties prior  to  them. 

Acceptance,  how  made,  generally:   See  ante,  §§  3193  et  seq. 
Keimbursement.     In  case  of  foreign  bills  of  exchange,  the  one  who 
pays  for  honor  must  declare  in  the  presence  of  a  person  authorized  to 
make  protest  for  whose  honor  he  pays  the  same:  Post,  §  3233. 

Legislation  §  3205.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1796. 

§  3206.  How  enforced.  A  bill  of  exchange  which  has  been 
accepted  for  honor  must  be  presented  at  its  maturity  to  the 
drawee  for  payment,  and  notice  of  its  dishonor  by  him  must 
be  given  to  the  acceptor  for  honor,  in  like  manner  as  to  an 
indorser ;  after  which  the  acceptor  for  honor  must  pay  the  bill. 
Presentmeait  for  acceptance:  Ante,  §  3 1 86. 

Presentment  of  bill  of  exchange  for  payment:  See  post,  §§  3211  et 
seq. 

Presentment  of  negotiable  instruments,  generally:  Ante,  §§  3130  et 
seq. 

Notice  of  dishonor  of  foreign  bill:  See  post,  §§  3225  et  seq. 
Notice  of  dishonor,  generally:  See  ante,  §§  3142  et  seq. 

Legislation  §  3206.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1797. 

§  3207.  Notice  of  dishonor  not  excused  by  acceptance  for 
honor.  The  acceptance  of  a  bill  of  exchange  for  honor  does 
not  excuse  the  holder  from  giving  notice  of  its  dishonor  by 
the  drawee. 

Presentment  of  bill  of  exchange  and  notice,  when  excused:  See  post, 
§§  3218-3220. 

Excuse  of  presentment  and  notice,  generally:    Ante,  §§  3155  et  seq. 

Notice  of  dishonor.  See  post,  §  3231,  for  giving  notice  of  protest; 
and  ante,  §§  3142  et  seq.,  for  manner  of  giving  notice  of  dishonor 
generally. 

Legislation  §  3207.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1798. 

ARTICLE  VI. 

Presentment  for  Payment. 

§  3'211.  Presentment,  when   bill   not  accepted,  where   made. 

^:  §3212.  Pres.entment  of  bill,  payable  at  particular  place. 

§  3213.  Effect  of  delay  in  presentment,  in  certain  cases. 

§3214.  Effect  in  other  cases, 

§  3211.     Presentment,  when  bill  not  accepted,  where  made. 

If  a  bill  of  exchange  is  by  its  terms  payable  at  a  particular 


§  3218  CIVIL  CODE.  780 

place,  and  is  not  accepted  on  presentment,  it  must  be  pre- 
sented at  the  same  place  for  payment,  when  presentment  for 
payment  is  necessary. 

Presentment  of  negotiable  instruments  for  pasrment:  See  ante, 
§§  3130  et  seq. 

Presentment  for  acceptance:   See  ante,  §§  31S6  et  seq. 

Legislation  §  3211.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1799. 

§  3212.  Presentment  of  bill,  payable  at  particular  place. 
A  bill  of  exchange,  accepted  payable  at  a  particular  place, 
must  be  presented  at  that  place  for  payment,  when  present- 
ment for  payment  is  necessary,  and  need  not  be  presented  else- 
where. 

Place  of  payment,  presentment  at:  See  ante,  §§  3131,  subd.  3. 
Legislation  §  3212.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1800. 

§  3213.     Effect  of  delay  in  presentment,  in  certain  cases.     If 

a  bill  of  exchange,  payable  at  sight  or  on  demand,  without  in- 
terest, is  not  duly  presented  for  payment  within  ten  days 
after  the  time  in  which  it  could,  with  reasonable  diligence,  be 
transmitted  to  the  proper  place  for  such  presentment,  the 
drawer  and  indorsers  are  exonerated,  unless  such  presentment 
is  excused. 

Apparent  maturity  of  bill  of  exchange:   See  ante,  §  3134. 
Exoneration  by  delay:   See  ante,  §  31S9;  post,  §§  3214,  3248. 
Legislation  §  3213.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1801. 

§  3214,  Effect  in  other  cases.  ]\Iere  delay  in  presenting  a 
bill  of  exchange  payable  with  interest,  at  sight  or  on  demand, 
does  not  exonerate  any  party  thereto. 

Delay,  when  excused:  See  ante,  §  3158,  and  post,  §  3219. 
Promissory  notes.     This  section  applies  to:   See  post,  §  3247. 
Exoneration  by  delay:   See  ante,  §§  3189,  3213,  3248. 
Legislation  §  3214.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1802. 

AETICLE  Aai. 

Excuse  of  Presentment  and  Notice. 

§  3218.     Presentment,  when  excused. 

§  3219.     Delay,  when  excused. 

§  3220.     Presentment    and    notice,    when    excused. 

§  3218.  Presentment,  when  excused.  The  presentment  of  a 
bill  of  exchange  for  acceptance  is  excused  if  the  drawee  has 
not  capacity  to  accept  it. 

Excuse  of  presentment  and  notice,  generally:  See  ante,  §§  31o5  et  seq. 
Legislation  §  3218.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N,  Y.  Civ.  Code,  §  1803. 


J 


781  FOREIGN  BILLS  OP  EXCHANGE,  §  3226 

§  3219.  Delay,  when  excused.  Delay  in  the  presentment 
of  a  bill  of  exchange  for  acceptance  is  excused,  when  caused 
by  circumstances  over  which  the  holder  has  no  control. 

Delay,  when  excused:  See  ante,  §§  3158,  3214. 
Delay  in  presentment  of  check:   Post,  §  3255. 

Legislation  §  3219.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1804. 

§3220.  Presentment  and  notice,  when  excused.  Present- 
ment of  a  bill  of  exchange  for  acceptance  or  payment,  and 
notice  of  its  dishonor,  are  excused  as  to  the  drawer,  if  he 
forbids  the  drawee  to  accept,  or  the  acceptor  to  pay  the  bill ; 
or  if,  at  the  time  of  draAving,  he  had  no  reason  to  believe  that 
the  drawee  would  accept  or  pay  the  same. 

Legislation  §  3220.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1805. 

AETICLE  VIII. 

Foreign  Bills. 

§  3224.  Definitions. 

§  3225.  Pretest  necessary. 

§  3226.  Protest,  by  whom  made. 

§  3227.  Protest,  how  made. 

§  3228.  Protest,  where  made. 

§  3229.  Protest,  when  to  be  made. 

§  3230.  Protest,  when   excused. 

§  3231.  Notice  of  protest,  how  given. 

§  3232.  Waiver  of  protest. 

§  3233.  Declaration  before   payment  for  honor. 

§  3234.  Damages    allowed    on    dishonor    of   foreign   bill. 

§  3235.  Bate  of   damages. 

§  3236.  Interest  on   amount   of  protested  bill. 

§  3237.  Damages,  how  estimated. 

§  3238.  Same. 

§  3224.     Definitions.     An    inland   bill    of   exchange    is    one 
drawn  and  payable  within  this  state.     All  others  are  foreign. 
Form  and  interpretation  of  bills  of  exchange:  Ante,  §§  3171  et  seq. 
Legislation  §  3224.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1806. 

§  3225.     Protest  necessary.     Notice  of  the  dishonor  of  a  for- 
eign bill  of  exchange  can  be  given  only  by  notice  of  its  protest. 
Dishonor  of  negotiable  instruments,  generally:    See  ante,  §§  3141  et 

seq.  ,        ..       •  t 

Waiver  of  protest  does  not  waive  presentment  and  notice  m  case  ot 

a  foreign  bill  of  exchange:   Ante,  §3160. 

Legislation  §  3225.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1807. 

§  3226.  Protest,  by  whom  made.  Protest  must  be  made  by 
a  notary  public,  if  with  reasonable  diligence  one  can  be  ob- 


§  3232  CIVIL  CODE.  782 

tained ;  and  if  not,  then  by  any  reputable  person,  in  the  pres- 
ence of  two  witnesses. 

Legislation  §  3226.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1808. 

§  3227.  Protest,  how  made.  Protest  must  be  made  by  an 
instrument  in  writing,  giving  a  literal  copy  of  the  bill  of  ex- 
change, with  all  that  is  written  thereon,  or  annexing  the  origi- 
nal ;  stating  the  presentment,  and  the  manner  in  which  it  was 
made;  the  presence  or  absence  of  the  drawee  or  acceptor,  as 
the  case  may  be ;  the  refusal  to  accept  or  to  pay,  or  the  in- 
ability of  the  drawee  to  give  a  binding  acceptance ;  and  in  case 
of  refusal,  the  reason  assigned,  if  any ;  and,  finally,  protesting 
against  all  the  parties  to  be  charged. 

Protest  of  notary  is  prima  facie  evidence:   See  Pol.  Code,  §  79.5. 

Legislation  §  3227.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
jST.  Y.  Civ.  Code,  §  1809. 

§  3228.  Protest,  where  made.  A  protest  for  non-acceptance 
must  be  made  in  the  city  or  town  in  which  the  bill  is  presented 
for  acceptance,  and  a  protest  for  non-payment  in  the  city  or 
town  in  which  it  is  presented  for  payment. 

Legislation  §  3228.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1810. 

§  3229.  Protest,  when  to  be  made.  A  protest  must  be  noted 
on  the  day  of  presentment,  or  on  the  next  business  day ;  but 
it  may  be  written  out  at  any  time  thereafter. 

Legislation  §  3229.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1811. 

§3230.     Protest,  when  excused.     The  want  of  a  protest  of 
a  foreign  bill  of  exchange,  or  delay  in  making  the  same,  is 
excused  in  like  cases  with  the  want  or  delay  of  presentment. 
Excuse  of  presentment  and  notice:  Ante,  §§  3214,  3218  et  seq. 
Legislation  §  3230.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1812. 

§3231.  Notice  of  protest,  how  given.  Notice  of  protest 
must  be  given  in  the  same  manner  as  notice  of  dishonor,  ex- 
cept that  it  may  be  given  by  the  notary  who  makes  the  protest. 

Notice  of  dishonor,  how  given:   See  ante,  §§  3142  et  seq. 
Notice  of  protest,  what  imports:   See  Code  Civ.  Proc,  §  I860. 
Legislation  §  3231.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1813. 

§  3232.  Waiver  of  protest.  If  a  foreign  bill  of  exchange  on 
its  face  waives  protest,  notice  of  dishonor  may  be  given  to 
any  party  thereto,  in  like  manner  as  of  an  inland  bill;  except 
that  if  any  indorser  of  such  a  bill  expressly  requires  protest 


783  FOREIGN  BILLS  OF  EXCHANGE.  §  3235 

to  be  made,  by  a  direction  written  on  the  bill  at  or  before  his 
indorsement,  protest  must  be  made,  and  notice  thereof  given 
to  him  and  to  all  subsequent  indorsers. 

Notice  of  dishonor:  See  ante,  §§  3142  et  seq. 
Waiver  of  notice:  See  ante,  §  3155,  subd.  4. 

Legislation  §  3232.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1814. 

§  3233.     Declaration  before  payment  for  honor.     One  who 

pays  a  foreign  bill  of  exchange  for  honor  must  declare,  before 
payment,  in  the  presence  of  a  person  authorized  to  make  pro- 
test, for  whose  honor  he  pays  the  same,  in  order  to  entitle  him 
to  reimbursement. 

Payment  or  acceptance  for  honor:   See  ante,  .§  3203. 

Legislation  §  3233.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1815. 

§3234.     Damages    allowed    on    dishonor    of    foreign    bill. 

Damages  are  allowed  as  hereinafter  prescribed,  as  a  full  com- 
pensation for  interest  accrued  before  notice  of  dishonor,  re- 
exchange,  expenses,  and  all  other  damages,  in  favor  of  holders 
for  value  only,  upon  bills  of  exchange  drawn  or  negotiated 
within  this  state,  and  protested  for  non-acceptance  or  non- 
payment. 

Legislation  §  3234.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1816. 

§  3235.  Rate  of  damages.  Damages  are  allowed  under  the 
last  section  upon  bills  drawn  upon  any  person : 

1.  If  drawn  upon  a  person  in  this  state,  two  dollars  upon 
each  one  hundred  dollars  of  the  principal  sum  specified  in  the 
bill; 

2.  If  drawn  upon  a  person  out  of  this  state,  five  dollars  upon 
each  one  hundred  dollars  of  the  principal  sum  specified  in  the 
bill; 

3.  If  drawn  upon  a  person  in  any  jplace  in  a  foreign  country, 
fifteen  dollars  upon  each  one  hundred  dollars  of  the  principal 
sum  specified  in  the  bill.  [Amendment  approved  1905 ;  Stats. 
1905,  p.  621.] 

Legislation  §  3235.  1.  Enacted  March  21,  1872  (based  on  Bills  of 
Exchange  and  Promissory  Notes  Act  of  1850,  Stats.  1850,  p.  247,  §  12), 
and  then  read:  "Damages  are  allowed  under  the  last  section  upon  bills 
drawn  upon  any  person:  1.  If  drawn  upon  any  person  in  this  state,  two 
dollars  upon  each  one  hundred  dollars  of  the  principal  sum  specified 
in  the  bill;  2.  If  drawn  upon  any  person  out  of  this  state,  but  in  any 
of  the  other  states  west  of  the  Eoeky  Mountains,  five  dollars  upon  each 
hundred  dollars  of  the  principal  sum  specified  in  the  bill;  3.  If  drawn 
upon  any  person  in  any  of  the  United  States  east  of  the  Eocky  Moun- 
tains, ten  dollars  upon  each  hundred  dollars  of  the  principal  sum  speci- 
fied in  the  bill;  4.  If  drawn  upon  any  person  in  any  place  in  a  foreign 


§  3244  CIVIL  CODE.  784 

country,  fifteen  dollars  upon  each  huudred  dollars  of  the  principal  sum 
specified  in  the  bill." 

2.  Amendnaent  by  Stats.  1901,  p.  421;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  621;  the  code  commissioner  saying, 
"The  old  section  divided  for  its  purposes  that  part  of  the  United 
States  not  included  within  this  state  into  two  parts,  viz.,  the  states 
west  and  the  states  east  of  the  Eoeky  Mountains,  thus  apparently 
ignoring  the  states  now  existing  situated  partly  on  each  side  of  those 
mountains.  It  has  seemed  best  to  abolish  the  distinction  altogether 
and  to  provide  a  uniform  rate  of  damage  for  all  the  states,  irrespective 
of  their  position  with  reference  to  those  mountains." 

§  3236.  Interest  on  amount  of  protested  bill.  From  the 
time  of  notice  of  dishonor  and  demand  of  payment,  lawful  in- 
terest must  be  allowed  upon  the  aggregate  amount  of  the  prin- 
cipal sum  specified  in  the  bill,  and  the  damages  mentioned  in 
the  preceding  section. 

Legislation  §  3236.  Enacted  March  21,  1872;  based  on  Bills  of  Ex- 
change and  Promissory  Notes  Act  of  1850,  Stats.  1850,  p.  247,  §  13. 

§  3237.  Damages,  how  estimated.  If  the  amount  of  a  pro- 
tested bill  of  exchange  is  expressed  in  money  of  the  United 
States  damages  are  estimated  upon  such  amount  without  re- 
gard to  the  rate  of  exchange. 

Legislation  §  3237.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1818. 

§  3238.  Same.  If  the  amount  of  a  protested  bill  of  ex- 
change is  expressed  in  foreign  money,  damages  are  estimated 
upon  the  value  of  a  similar  bill  at  the  time  of  protest,  in  the 
place  nearest  to  the  place  where  the  bill  was  negotiated,  and 
where  such  bills  are  currently  sold. 

Legislation  §  3238.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Co-de,  §  1819. 

CHAPTER  III. 

Promissory  Notes. 

§  3244.  Promissory   note,   what. 

§  3245.  Certain  instruments  promissory  notes. 

§  3246.  Bill  of  exchange,  when  converted  into  a  note. 

§  3247.  Certain   sections   applicable   to   notes. 

§  3248.  Effect   of   delay   in   presentment. 

§3244.  Promissory  note,  what.  A  promissory  note  is  an 
instrument,  negotiable  in  form,  whereby  the  signer  promises 
to  pay  a  specified  sum  of  money. 

Place  of  payment  not  specified:  See  ante,  §  3100. 
Interpretation  of  negotiable  instruments,  generally:  See  ante,  §§  3099 
et  seq. 

Legislation  §  3244.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1820. 


785  PROMISSORY  NOTES.      CHECKS.  §  3254 

§3245.  Certain  instruments  promissory  notes.  An  instru- 
ment in  the  form  of  a  bill  of  exchange,  but  drawn  upon  and 
accepted  by  the  drawer  himself,  is  to  be  deemed  a  promissory 
note. 

Negotiable  instrument  payable  to  order  of  maker:   See  ante,  §  3102. 
Legislation  §  3245.     1.  Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1821. 

2.  Amendment  by   Stats.   1901,   i3.   421;   unconstitutional.     See   note, 
§  4,  ante. 

§3246.     Bill  of  exchange,  when  converted  into  a  note.    A 

bill  of  exchange,  if  accepted,  Avith  the  consent  of  the  owner, 
by  a  person  other  than  the  drawee,  or  an  acceptor  for  honor, 
becomes  in  effect  the  promissory  note  of  such  person,  and  all 
prior  parties  thereto  are  exonerated. 
Acceptor  for  honor:  Ante,  §§  3203  et  seq. 

Legislation  §  3246.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1822. 

§  3247.  Certain  sections  applicable  to  notes.  Chapter  one 
of  this  title,  and  sections  three  thousand  one  hundred  and 
eighty-one  and  three  thousand  two  hundred  and  fourteen  of 
this  code,  apply  to  promissory  notes. 

Chapter  one  of  this  title:   See  ante,  §§  3086-316.5. 
Legislation  §  3247.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1823. 

§  3248.  Effect  of  delay  in  presentment.  If  a  promissory 
note,  payable  on  demand,  or  at  sight,  without  interest,  is  not 
duly  presented  for  payment  within  six  months  from  its  date, 
the  indorsers  thereof  are  exonerated,  unless  such  presentment 
is  excused. 

Apparent  maturity  of  promissory  note:   Ante,  §  3135. 
Presentment,  when  excused:  See,  generally,  §§  3155  et  seq.,  ante. 
Exoneration  by  delay:   See  ante,  §§  3189,  3213,  3214. 
Legislation  §  3248.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1824. 

CHAPTER  IV. 

Checks. 

§  3254.     Check,  what. 

§  3255.     Rules   applicable   to   checks. 

§  3254.  Check,  what.  A  check  is  -a  bill  of  exchange  drawn 
upon  a  bank  or  banker,  or  a  person  described  as  such  upon 
the  face  thereof,  and  payable  on  demand,  without  interest. 

Legislation  §  3254.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1825. 
Civ.  Code — 50 


§  3268  CIVIL  CODE.     ■  786 

§  3255.  Rules  applicable  to  checks.  A  check  is  subject  to 
all  the  provisions  of  this  code  concerning  bills  of  exchange, 
except  that : 

1.  The  drawer  and  indorsers  are  exonerated  by  delay  in 
presentment,  only  to  the  extent  of  the  injnry  which  they  suffer 
thereby ; 

2.  An  indorsee,  after  its  apparent  maturity,  but  without 
actual  notice  of  its  dishonor^  acquires  a  title  equal  to  that  of 
an  indorsee  before  such  period. 

Delay  in  presentment  of  bills  of  exchange:  Ante,  §§  3214,  3218-3220. 
Indorsee  in  due  course:  Ante,  §  3123. 

Legislation  §  3255.     Enacted  March  21;  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1826. 

CHAPTER  V. 

Bank  Notes  and  Certificates  of  Deposit. 

§  3261.     Bank  note  negotiable  after  payment. 

§  3262.     Title    acquired    by    indorsee.    '[Eepealed.] 

§  3261.     Bank  note  negotiable  after  payment.     A  bank  note 
remains  negotiable,  even  after  it  has  been  paid  by  the  maker. 
Legislation  §  3261.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1827. 

§  3262.  Title  acquired  by  indorsee.  [Repealed  1874 ;  Code 
Amdts.  1873-74,  p.  265.] 

Legislation  §  3262.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  265. 


TITLE  XVI. 
General  Provisions. 

§  3268.     Parties  may  waive  provisions  of  code. 

§  3268.  Parties  may  w^aive  provisions  of  code.  Except 
where  it  is  otherAvise  declared,  the  provisions  of  the  foregoing 
fifteen  titles  of  this  part,  in  respect  to  the  rights  and  obliga- 
tions of  parties  to  contracts,  are  subordinate  to  the  intention 
of  the  parties,  when  ascertained  in  the  manner  prescrilied  by 
the  chapter  on  the  interpretation  of  contracts ;  and  the  benefit 
thereof  may  be  waived  by  any  party  entitled  thereto,  unless 
such  waiver  would  be  against  public  policy. 

Interpretation  of  contracts:  See  ante,  §§  1635  et  seq. 

Legislation  §  3268.     Enacted  March  21.  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1829. 


DIVISIOIS^  l^OUllTll. 

Part  I.     Relief.     §§  3274-3423. 

II.     Special  Relations  of  Debtor  and  Creditor.    §§  3429- 
3473. 

III.  Nuisance.     §§3479-3503. 

IV.  Maxims  of  Jurisprudence.     §§  3509-3543. 

(787) 


789  RELIEF  IN  GENERAL.  §  3275 

PART  1. 
RELIEF. 

Title  I.     Relief  in  General.     §§  3274,  3275. 
II.     Compensatory  Relief.     §§3281-3360. 
III.     Specific    and    Preventive   Relief.     §§  3366-3423. 

TITLE  I. 
Relief  in  General. 

§  3274.     Species  of  relief. 

§  3275.     Eelief    in    ease    of    forfeiture. 

§  3274.  Species  of  relief.  As  a  general  rule,  compensation 
is  a  relief  or  remedy  provided  by  the  law  of  this  state  for  the 
violation  of  private  rights,  and  the  means  of  securing  their 
observance ;  and  specific  and  preventive  relief  may  be  given  in 
no  other  cases  than  those  specified  in  this  part  of  the  Civil 
Code. 

Legislation  §  3274.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1830. 

§  3275.  Relief  in  case  of  forfeiture.  Whenever,  by  the 
terms  of  an  obligation,  a  party  thereto  incurs  a  forfeiture,  or 
a  loss  in  the  nature  of  a  forfeiture,  by  reason  of  his  failure  to 
comply  with  its  provisions,  he  may  be  relieved  therefrom, 
upon  making  full  compensation  to  the  other  party,  except  in 
case  of  a  grossly  negligent,  willful,  or  fraudulent  breach  of 
duty. 

Legislation  §  3275.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1831. 


§  3283  CIVIL  CODE.  790 

TITLE  II. 
Compensatory  Relief. 

Chapter  I.     Damages  in  General.     Articles  I-III.     §§  3281-3294. 
n.     Measure  of  Damages.     Articles  I-IV.     §§  3300-3360. 

CHAPTER  I. 

Damages  in  General. 

Article  I.     General  Principles.     §§3281-3283. 
11.     Interest  as  Damages.     §§  3287-3290. 
III.     Exemplary  Damages.     §  3294. 

ARTICLE  I. 

Greneral  Principles. 

§  3281.     Person   suffering  detriment  may  recover  damages. 

§  3282.     Detriment,  what. 

§  3283'.     Injuries  resulting  or  probable  after  suit  brought. 

§  3281.     Person  suffering-  detriment  may  recover  damages. 

Every  person  who  suffers  detriment  from  the  unlawful  act  or 
omission  of  another,  may  recover  from  the  person  in  fault  a 
compensation  therefor  in  money,  which  is  called  damages. 

Exemplary  damages:  Post,  §  3294. 

Damages  are  exclusive  of  exemplary  damages  and  interest,  except 
where  those  are  expressly  mentioned:   Post,  §  3357. 

Damages  must  be  reasonable:  Post,  §  3359. 

Damages  for  torts:  Post,  §§  3333  et  seq. 

Damages  for  breach  of  contract:  Post,  §§  3300  et  seq. 

Legislation  §  3281.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1832. 

§  3282.  Detriment,  w^hat.  Detriment  is  a  loss  or  harm  suf- 
fered in  person  or  property. 

Legislation  §  3282.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1833. 

§  3283.  Injuries  resulting"  or  probable  after  suit  brought. 
Damages  may  be  awarded,  in  a  judicial  proceeding,  for  detri- 
ment resulting  after  the  commencement  thereof,  or  certain  to 
result  in  the  future. 

Legislation  §  3283.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1834. 


791  INTEREST  AS   DAMAGES.      EXEMPLARY   DAMAGES.  §  3294 

ARTICLE  II. 

Interest  as   Damages. 

§  3287.  Person  entitled  to  recover  damages  may  recover  interest  thereon. 

§  3288.  In  actions  other  than  contract. 

§  3289.  Limit  of  rate  by  contract. 

§  3290.  Acceptance  of  principal  waives  claim  to  interest. 

§  3287.  Person  entitled  to  recover  damages  may  recover 
interest  thereon.  Every  person  who  is  entitled  to  recover 
damages  certain,  or  capable  of  being  made  certain  by  calcula- 
tion, and  the  right  to  recover  which  is  vested  in  him  upon  a 
particular  day,  is  entitled  also  to  recover  interest  thereon  from 
that  day,  except  during  such  time  as  the  debtor  is  prevented 
by  law,  or  by  the  act  of  the  creditor,  from  paying  the  debt. 

As  to  what  is  legal  rate,  see  ante,  §  1917. 
Interest  in  actions  for  conversion:  Post,  §  3336. 

Legislation  §  3287.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1835. 

§  3288.  In  actions  other  than  contract.  In  an  action  for  the 
breach  of  an  obligation  not  arising  from  contract,  and  in  every 
case  of  oppression,  fraud,  or  malice,  interest  may  be  given,  in 
the  discretion  of  the  jury. 

Interest  in  trover  and  conversion:  Post,  §  3336. 

Interest  on  damages  in  eminent  domain:  See  Code  Civ.  Proc,  §  1249. 
Disbursements,  in  partition  proceedings,  interest  on:  See  Code  Civ. 
Proc,  §  801. 

Legislation  §  3288.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1836. 

§  3289.  Limit  of  rate  by  contract.  Any  legal  rate  of  inter- 
est stipulated  by  a  contract  remains  chargeable  after  a  breach 
thereof,  as  before,  until  the  contract  is  superseded  by  a  verdict 
or  other  new  obligation. 

Legislation  §  3289.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.   Code,  §  1837. 

§  3290.     Acceptance  of  principal  waives  claim  to  interest. 

Accepting  paym^ent  of  the  whole  principal,  as  such,  waives  all 
claim  to  interest. 

Legislation  §  3290.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1838. 

ARTICLE  TIL 

Exemplary   Damages. 

§  3294.     Exemplary  damages,  in  what   cases  allowed. 

§  3294.     Exemplary  damages,  in  what  cases  allowed.     In  an 

action  for  the  breach  of  an  obligation  not  arising  from  con- 
tract, where  the  defendant  has  been  guilty  of  oppression,  fraud, 
or  malice,  express  or  implied,  the  plaintiff,  in  addition  to  the 


§  3294  CIVIL  CODE.  792 

actual  damages,  may  recover  damages  for  the  sake  of  example 
and  by  way  of  punishing  the  defendant.  [Amendment  ap- 
proved 1905;  Stats.  1905,  p.  621.] 

Damages  for  wrongs,  generally:  See  post,  §§  3333  et  seq. 

Penal  damages:  See  post,  §§  3344  et  seq. 

Person  embezzling  from  estate,  liable  in  double  damages:  See  Code 
Civ.  Proc,  §§1458,  1460. 

Executor  liable  for  double  damages  for  fraud  in  sales:  See  Code  Civ. 
Proc,  §  1572. 

Damages  prescribed  in  code  exclusive  of  exemplary  damages:  See 
post,  §  3357. 

Legislation  §  3294.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1839),  and  then  read:  "In  any  action  for  the 
breach  of  an  obligation  not  arising  from  contract,  where  the  defendant 
has  been  guilty  of  oppression,  fraud,  or  malice,  actual  or  presumed,  the 
jury,  in  addition  to  the  actual  damages,  may  give  damages  for  the 
sake  of  example,  and  by  way  of  punishing  the  defendant." 

2.  Amendment  by  Stats.  1901,  p.  421;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  621;  the  code  commissioner  saying 
of  the  original  code  section,  "As  the  section  now  stands  it  appears  to 
^VV^y  to  jury  trials  only.  This,  of  course,  was  not  the  intention  of 
the  legislature." 

CHAPTER  IT. 

Measure  of  Damages. 

Article!.  Damages  for  Breach   of   Contract.     §§3300-3319. 

II.  Damages  for  Wrongs.     §§  3333-3341. 

III.  Penal   Damages.     §§3344-3348. 

IV.  General  Pr6visions.     §§  3353-3360. 

ARTICLE  L 

Damages  for  Breach  of  Contract. 

§  3300.  Measure  of  damages  for  breach  of  contract. 

§  3301.  Damages  must  be  certain. 

§  3302.  Breach  of  contract  to  pay  liquidated  sum. 

§  3303.  Dishonor  of  foreign  bills  of  exchange. 

§  3304.  Detriment  caused  by  breach  of  covenant  of  seisin,  etc.,  what  is. 

§  33'05.  Detriment  caused  by  breach  of  covenant  against  encumbrances. 

is  what. 

§  3306.  Breach  of  agreement  to  convey  real  property. 

§  3307.  Breach  of  agreement  to  buy  real  property. 

§  3308.  Breach  of  agreement  to  sell  personal  property,  not  paid  for. 

§  3309.  Breach  of  agreement  to  sell  personal  property  paid  for. 

§  3310.  Breach  of  agreement  to  pay  for  personal  property  sold. 

§  3311.  Breach  of  agreement  to  buy  personal   property. 

§  3312.  Breach  of  warranty  of  title  to  personal  property. 

§  3313.  Breach  of  warranty  of  quality  of  personal  property. 

§  3314.  Breach  of  warranty  of  quality  for  special  purpose. 

§  3315.  Breach  of  carrier's  obligation  to  receive  goods,  etc. 

§  3316.  Breach  of  carrier's  obligation  to  deliver. 

§  3317.  Carrier's  delay. 

§  3318.  Breach  of  warranty  of  authority. 

§  3319.  Breach  of  promise  of  marriage. 


793  DAMAGES  FOR  BREACH  OF  CONTRACT.  §  3304 

§  3300.    Measure  of  damages  for  breach  of  contract.     For 

the  breach  of  an  obligation  arising  from  contract,  the  measure 
of  damages,  except  Avhere  otherwise  expressly  provided  by  this 
code,  is  the  amount  which  will  compensate  the  party  aggrieved 
for  all  the  detriment  proximately  caused  thereby,  or  which, 
in  the  ordinary  course  of  things,  would  be  likely  to  result 
therefrom.  [Amendment  approved  1874 ;  Code  Amdts.  1873- 
74,  p.  265.] 

Damages  for  revoking  submission  to  arbitration:  See  Code  Civ.  Proc, 
§  1290. 

Legislation  §  3300.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1840),  the  section  then  reading  the  same 
as  the  amendment  of  1873-74,  except  that  after  the  words  "proximately 
caused  thereby,"  it  contained  a  clause  reading,  "which  the  party  in 
fault  had  notice,  at  the  time  of  entering  into  the  contract,  or  at  any 
time  before  the  breach,  and  while  it  was  in  his  power  to  perform 
the  contract  upon  his  part,  would  be  likely  to  result  from  such  breach," 
the  section  thereafter  reading  as  at  present. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  265. 

§  3301.  Damages  must  be  certain.  No  damages  can  be  re- 
covered for  a  breach  of  contract  which  are  not  clearly  ascer- 
tainable in  both  their  nature  and  origin. 

Legislation  §  3301.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1841. 

§  3302.     Breach  of  contract  to  pay  liquidated  sum.     The 

detriment  caused  l)y  the  breach  of  an  obligation  to  pay  money 
only,  is  deemed  to  be  the  amount  due  by  the  terms  of  the  obliga- 
tion, with  interest  thereon. 

Legislation  §  3302.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1842. 

§  3303.  Dishonor  of  foreign  bills  of  exchange.  For  the  dis- 
honor of  foreign  bills  of  exchange  the  damages  are  prescribed 
by  sections  three  thousand  two  hundred  and  thirty-five,  three 
thousand  t"wo  hundred  and  thirty-seven,  and  three  thousand 
two  hundred  and  thirty-eight. 

Legislation  §  3303.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1843. 

§  3304.  Detriment  caused  by  breach  of  covenant  of  seisin, 
etc.,  what  is.  The  detriment  caused  by  the  breach  of  a  cove- 
nant of  "seisin,"  of  "right  to  convey,"  of  "warranty,"  or  of 
"quiet  enjoyment,"  in  a  grant  of  an  estate  in  real  property, 
is  deemed  to  be : 

1.  The  price  paid  to  the  grantor;  or,  if  the  breach  is  pai'tial 
only,  such  proportion  of  the  price  as  the  value  of  the  prop- 
erty affected  by  the  breach  bore  at  the  time  of  the  grant  to 
the  value  of  the  whole  property ; 


&'- 


§  3308  CIVIL  CODE.  -  794 

2.  Interest  thereon  for  the  time  during  which  the  grantee 
derived  no  benefit  from  the  property,  not  exceeding  five 
years ; 

3.  Any  expenses  properly  incurred  by  the  covenantee  in 
defending  his  possession. 

Legislation  §  3304.     Enacted  March  21    1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1844. 

§  3305.  Detriment  caused  by  breach  of  covenant  against  en- 
cumbrances, is  what.  The  detriment  caused  by  the  breach 
of  a  covenant  against  encumbrances  in  a  grant  of  an  estate 
in  real  property  is  deemed  to  be  the  amount  which  has  been 
actually  expended  by  the  covenantee  in  extinguishiiig  either 
the  principal  or  interest  thereof,  not  exceeding  in  the  former 
case  a  proportion  of  the  price  paid  to  the  grantor  equivalent 
to  the  relative  value  at  the  time  of  the  grant  of  the  property 
affected  by  the  breach,  as  compared  with  the  whole,  or,  in 
the  latter  case,  interest  on  a  like  amount. 

Legislation  §  3305.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1845. 

§  3306.     Breach  of  agreement  to  convey  real  property.     The 

detriment  caused  by  the  breach  of  an  agreement  to  convey  an 
estate  in  real  property,  is  deemed  to  be  the  price  paid,  and 
the  expenses  properly  incurred  in  examining  the  title  and 
preparing  the  necessary  papers,  with  interest  thereon;  but 
adding  thereto,  in  case  of  bad  faith,  the  difference  between 
the  price  agreed  to  be  paid  and  the  value  of  the  estate  agreed 
to  be  conveyed,  at  the  time  of  the  breach,  and  the  expenses 
properly  incurred  in  preparing  to  enter  upon  the  land. 

Legislation  §  3306.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1846. 

§3307.     Breach  of  agreement  to  buy  real  property.     The 

detriment  caused  by  the  breach  of  an  agreement  to  purchase 
an  estate  in  real  property,  is  deemed  to  be  the  excess,  if  any, 
of  the  amount  which  would  have  been  due  to  the  seller,  under 
the  contract,  over  the  value  of  the  property  to  him. 

Legislation  §  3307.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1847. 

§  3308.  Breach  of  agreement  to  sell  personal  property,  not 
paid  for.  The  detriment  caused  by  the  breach  of  a  seller's 
agreement  to  deliver  personal  property,  the  price  of  which  has 
not  been  fully  paid  in  advance,  is  deemed  to  be  the  excess,  if 
any,  of  the  value  of  the  property  to  the  buyer,  over  the  amount 
which  would  have  been  due  to  the  seller  under  the  contract,  if 
it  had  been  fulfilled. 


795  DAMAGES  FOR  BREACH  OP  CONTRACT.    •     §  3313 

Legislation  §  3308.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y..  Civ.  Code,  §  1848. 

§  3309.  Breach  of  agreement  to  sell  personal  property  paid 
for.  The  detriment  caused  by  the  breach  of  a  seller's  agree- 
ment to  deliver  personal  property,  the  price  of  which  has  been 
fully  paid  to  him  in  advance,  is  deemed  to  be  the  same  as  in 
case  of  wrongful  conversion. 

Conversion,  measure  of  damages  for:  Post,  §  3336. 

Legislation  §  3309.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1849. 

§  3310.  Breach  of  agreement  to  pay  for  personal  property 
sold.  The  detriment  caused  by  the  breach  of  a  buyer's  agree- 
ment to  accept  and  pay  for  personal  property,  the  title  to 
which  is  vested  in  him,  is  deemed  to  be  the  contract  price. 

Legislation  §  3310.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1850. 

§3311.     Breach   of  agreement  to   buy  personal   property. 

The  detriment  caused  by  the  breach  of  a  buyer's  agreement 
to  accept  and  pay  for  personal  property,  the  title  to  which  is 
not  vested  in  him,  is  deemed  to  be : 

1.  If  the  property  has  been  resold,  pursuant  to  section  three 
thousand  and  forty-nine,  the  excess,  if  any,  of  the  amount 
due  from  the  buyer,  under  the  contract,  over  the  net  proceeds 
of  the  resale ;  or, 

2.  If  the  property  has  not  been  resold  in  the  manner  pre- 
scribed by  section  three  thousand  and  forty-nine,  the  excess, 
if  any,  of  the  amount  due  from  the  buyer,  under  the  contract, 
over  the  value  to  the  seller,  together  with  the  excess,  if  any, 
of  the  expenses  properly  incurred  in  carrying  the  property  to 
market,  over  those  which  would  have  been  incurred  for  the 
carriage  thereof,  if  the  buyer  had  accepted  it. 

Legislation  §  3311.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1851. 

§3312.     Breach  of  warranty  of  title  to  personal  property. 

The  detriment  caused  by  the  breach  of  a  warranty  of  the  title 
of  personal  property  sold,  is  deemed  to  be  the  value  thereof  to 
the  buyer,  when  he  is  deprived  of  its  possession,  together  with 
any  costs  which  he  has  become  liable  to  pay  in  an  action 
brought  for  the  property  by  the  true  owner. 

Legislation  §  3312.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1852. 

§  3313.     Breach  of  warranty  of  quality  of  personal  property. 

The  detriment  caused  by  the  breach  of  a  warranty  of  the  qual- 
ity of  personal  property  is  deemed  to  be  the  excess,  if  any,  of 


§  3317         '  CIVIL  CODE.  796 

the  value- which  the  property  would  have  had  at  the  time  to 
which  the  warranty  referred,  if  it  had  been  complied  with, 
over  its  actual  value  at  that  time. 

Legislation  §  3313.     Enacted  March  21.  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1853. 

§  3314.     Breach  of  w^arranty  of  quality  for  special  purpose. 

The  detriment  caused  by  the  breach  of  a  warranty  of  the 
fitness  of  an  article  of  personal  property  for  a  particular  pur- 
pose, is  deemed  to  be  that  which  is  defined  by  the  last  section, 
together  with  a  fair  compensation  for  the  loss  incurred  by  an 
effort  in  good  faith  to  use  it  for  such  purpose. 

Legislation  §  33U.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1854. 

§  3315,     Breach  of  carrier's  obligation  to  receive  goods,  etc. 

The  detriment  caused  1)y  the  breach  of  a  carrier's  obligation 
to  accept  freight,  messages,  or  passengers,  is  deemed  to  be  the 
difference  between  the  amount  which  he  had  a  right  to  charge 
for  the  carriage  and  the  amount  which  it  would  be  necessary 
to  pay  for  the  same  service  when  it  ought  to  be  performed. 

Obligation  to  receive  freight:  Ante,  §  2169. 
Refusal  to  receive  message:  See  ante,  §  2209. 

Legislation  §  3315.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
X.  Y.  Civ.  Code,  §  1855. 

§  3316.     Breach    of    carrier's    obligation    to    deliver.     The 

detriment  caused  by  the  breach  of  a  carrier's  obligation  to 
deliver  freight,  where  he  has  not  converted  it  to  his  own  use, 
is  deemed  to  be  the  value  thereof  at  the  place  and  on  the  day 
at  which  it  should  have  been  delivered,  deducting  the  freight- 
age to  which  he  would  have  been  entitled  if  he  had  completed 
the  delivery. 

Delivery  of  property  by  carrier:  See  ante,  §§  2118,  2119. 
Stoppage  in  transitu:  See  ante,  §§  3076  et  seq. 

Legislation  §  3316,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N,  Y,  Civ.  Code,  §  185G. 

§  3317.  Carrier's  delay.  The  detriment  caused  by  a  car- 
rier's delay  in  the  delivery  of  freight,  is  deemed  to  be  the 
depreciation  in  the  intrinsic  value  of  the  freight  during  the 
delay,  and  also  the  depreciation,  if  any,  in  the  market  value 
thereof,  otherwise  than  by  reason  of  a  depreciation  in  its  in- 
trinsic value,  at  the  place  Avhere  it  ought  to  have  been  de- 
livered, and  between  the  day  at  which  it  ought  to  have  been 
delivered,  and  the  day  of  its  actual  delivery. 
Carrier's  liability  for  delay:  See  ante,  §  2196. 
Legislation  §  3317.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1857. 


3320.  [New.]  Damages  Recoverable  from  Banks  on  Non- 
payment of  Checks.  No  bank  sliall  be  liable  to  a  depositor  be- 
cause of  tlie  nonpayment  through  mistake  or  error,  and  without 
malice,  of  a  check  which  .should  have  been  paid  unless  the  de- 
positor shall  allege  and  prove  actual  damage  by  reason  of  such 
nonpayment  and  in  such  event  the  liability  shall  not  exceed  the 
amount  of  damage  so  proved.  (In  effect  90  days  from  and  after' 
April   27,   1917.     Rtata    1917,   Chap.   503.)  Civ.    Code,    1917. 


797  DAMAGES  P^OR  WRONGS.  §  333-t 

§  3318.  Breach  of  warranty  of  authority.  The  detriment 
caused  by  the  breach  of  a  warranty  of  an  agent's  authority, 
is  deemed  to  be  the  amount  Avhich  could  have  been  recovered 
and  collected  from  his  principal  if  the  warranty  had  been 
complied  with,  and  the  reasonable  expenses  of  legal  proceed- 
ings taken,  in  good  faith,  to  enforce  the  act  of  the  agent 
against  his  principal. 

Warranty  of  authority  by  one  assuming  to  act  as  agent:  See  ante, 
§  2342. 

Legislation  §  3318.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  18.58. 

§  3319.     Breach  of  promise  of  marriage.     The  damages  for 

the  breach  of  a  proniisc  of  marriage  rest  in  the  sound  discre- 
tion of  the  jury. 

Legislation  §  3319.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1859. 

ARTICLE  II. 

Damages  for   Wrongs. 

§  3333.  Breach  of  obligation  other  than  contract. 

§  33'34.  Wrongful  occupation  of  real  property. 

§  3335.  Willful  holding  over. 

§  3336.  Conversion  of  personal  property. 

§  3337.  Same. 

§  3338.  Damages  of  lienor. 

§  3339.  Seduction. 

§  3340.  Injuries  to  animals. 

§  3341.  Same. 

§  3333.     Breach  of  obligation  other  than  contract.     For  the 

breach  of  an  obligation  not  arising  from  contract,  the  meas- 
ure of  damages,  except  where  otherwise  expressly  provided 
by  this  code,  is  the  amount  which  will  compensate  for  all  the 
detriment  proximately  caused  thereby,  whether  it  could  have 
been  anticipated  or  not. 

Negligent  acts  in  relation  to  fire,  treble  damages:  See  Pol.  Code, 
§  3344. 

Recorder  liable  for  treble  damages  for  neglect,  mistake,  or  miscon- 
duct:  See  Pol.  Code,  §  4140. 

Sheriff,  liability  of,  for  neglect  or  misconduct:  See  Pol.  Code,  §§  4160 
et  seq. 

Damages  for  revocation  of  arbitration:  See  Code  Civ.  Proc,  §  1290. 

Damages  for  usurpation  of  office:  See  Code  Civ.  Proc,  §  807. 

Damages,  measure  of,  where  bail  bond  in  contempt  prosecuted:  See 
Code  Civ.  Proc,  §  1220. 

Legislation  §  3333.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1860. 

§  3334.  Wrongful  occupation  of  real  property.  The  detri- 
ment caused  by  the  wrongful  occupation  of  real  property,  in 
cases  not  embraced  in  sections  three  thousand  three  hundred 


§  3337  CIVIL  CODE.  798 

and  thirty-five,  three  thousand  three  hundred  and  forty-four, 
and  three  thousand  three  hundred  and  forty-five  of  this  code, 
or  section  eleven  hundred  and  seventy-four  of  the  Code  of 
Civil  Procedure,  is  deemed  to  be  the  value  of  the  use  of  the 
property  for  the  time  of  such  occupation,  not  exceeding  five 
years  next  preceding  the  commencement  of  the  action  or  pro- 
ceeding to  enforce  the  right  to  damages,  and  the  costs,  if  any, 
of  recovering  the  possession. 

Legislation  §  3334.  Enacted  March  21,  1872;  based  on  Field's  Draff, 
N.  Y.  Civ.  Code,  §  1861. 

§  3335.  Willful  holding  over.  For  willfully  holding  over 
real  property,  by  a  person  who  entered  upon  the  same,  as 
guardian  or  trustee  for  an  infant,  or  by  right  of  an  estate 
terminable  with  any  life  or  lives,  after  the  termination  of  the 
trust  or  particular  estate,  without  the  consent  of  the  party 
immediately  entitled  after  such  termination,  the  measure  of 
damages  is  the  value  of  the  profits  received  during  such  hold- 
ing over. 

Termination  of  trustee's  estate:  Ante,  §  871. 

Legislation  §  3335.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1862. 

§  3336.  Conversion  of  personal  property.  The  detriment 
caused  by  the  Avrongful  conversion  of  personal  property  is 
presumed  to  be : 

First.  The  value  of  the  property  at  the  time  of  the  con- 
version, Avith  the  interest  from  that  time,  or,  where  the  action 
has  been  prosecuted  with  reasonable  diligence,  the  highest 
market  value  of  the  property  at  any  time  between  the  conver- 
sion and  the  verdict,  without  interest,  at  the  option  of  the 
injured  party ;  and 

Second.  A  fair  compensation  for  the  time  and  money  prop- 
erly expended  in  pursuit  of  the  property.  [Amendment  ap- 
proved 1878 ;  Code  Amdts.  1877-78,  p.  90.] 

Legislation  §  3336.     1.    Enacted    March    21,    1872    (based    on   Field's 

Draft,  N.  Y.  Civ.   Code,  §  1863),  and  then  read  as  the  amendment  of 

1877-78  (the  present  section). 

2.  Amended  by  Code  Amdts.  1873-74,  p.  266,  in  subd.  2,  omitting 
the  second  clause,  beginning  "or"  and  ending  "injured  party." 

3.  Amended  by  Code  Amdts.  1877-78,  p.  90,  in  subd.  2,  restoring  the 
clause  omitted  in  1873-74,'  the  section  now  reading  as  it  stood  in  the 
original  code. 

§  3337.  Same.  The  presumption  declared  by  the  last  sec- 
tion cannot  be  repelled,  in  favor  of  one  Avhose  possession  was 
wrongful  from  the  beginning,  by  his  subsequent  application 
of  the  property  to  the  benefit  of  the  owner,  Avithout  his  con- 
sent. 


799  DAMAGES  FOR  WRONGS.  §  3341 

Legislation  §  3337.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1864. 

§  3338.  Damages  of  lienor.  One  having  a  mere  lien  on 
personal  property,  cannot  recover  greater  damages  for  its 
conversion,  from  one  having  a  right  thereto  superior  to  his, 
after  his  lien  is  discharged,  than  the  amount  secured  by  the 
lien,  and  the  compensation  allowed  by  section  three  thousand 
three  hundred  and  thirty-six  for  loss  of  time  and  expenses. 

Damage  for  conversion  of  personalty,  generally:   Ante,  §  3336. 
Levy  on  mortgaged  chattel:   See,  as  to  duty  of  officer,  ante,  §  2969. 
Legislation  §  3338.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1865. 

§  3339.  Seduction.  The  damages  for  seduction  rest  in  the 
sound  discretion  of  the  jury. 

Seduction,  action  by  unmarried  female:  Code  Civ.  Proc,  §  374. 
Seduction,  actions  by  parent  or  guardian:  Code  Civ.  Proc,  §  375. 
Legislation  §  3339.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1866. 

§  3340.  Injuries  to  animals.  For  wrongful  injuries  to  ani- 
mals being  subjects  of  property,  committed  willfully  or  by 
gross  negligence,  in  disregard  of  humanity,  exemplary  dam- 
ages may  be  given. 

Dogs  are  property:  Pen.  Code,  §  491. 
Injury  to  dogs:  Pen.  Code,  §  597. 
Exemplary  damages,  generally:   See  ante,  §  3294. 
Legislation  §  3340.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1867. 

§  3341.  Same.  The  owner,  possessor,  or  harborer  of  any 
dog  or  other  animal,  that  shall  kill,  worry,  or  wound  any 
sheep,  angora  goat,  or  cashmere  goat,  or  poultry,  shall  be 
liable  to  the  owner  of  the  same  for  the  damages  and  costs  of 
suit,  to  be  recovered  in  any  court  of  competent  jurisdiction : 

1.  In  the  prosecution  of  actions  under  the  provisions  of  this 
chapter,  it  shall  not  be  necessary  for  the  plaintiff  to  show  that 
the  owner,  possessor,  or  harborer  of  such  dog  or  other  animal, 
had  knowledge  of  the  fact  that  such  dog  or  other  animal 
would  kill,  wound  or  worry  sheep,  goats,  or  poultry. 

2.  Any  person  on  finding  any  dog  or  dogs,  or  other  animal, 
not  on  the  premises  of  the  owner  or  possessor  of  such  dog  or 
dogs,  or  other  animal,  worrying,  wounding,  or  killing  any 
sheep,  angora  or  cashmere  goats,  may,  at  the  time  of  finding 
such  dog  or  dogs,  or  other  animal,  kill  the  same,  and  the 
owner  or  owners  thereof  shall  sustain  no  action  for  damages 
against  any  person  so  killing  such  dog  or  dogs,  or  other  ani- 
mal.    [Amendment  approved  1903;  Stats.  1903,  p.  54.] 


§  3346  CIVIL  CODE.  800 

Legislation  §  3341.  1.  Added  by  Stats.  1883,  p.  283,  and  then  read: 
"The  owner,  possessor,  or  harborer  of  any  dog  or  other  animal  that 
shall  kill,  worry,  or  wound  any  sheep,  angora  or  cashmere  goats,  shall 
be  liable  to  the  owner  of  the  same  for  the  damages  and  costs  of  suit, 
to  be  recovered  before  any  court  of  competent  jurisdiction.  1.  In  the 
prosecution  of  actions  under  the  provisions  of  this  chapter  it  shall  not 
be  necessary  for  the  plaintiff  to  show  that  the  owner,  possessor,  or 
harborer  of  such  dog  or  other  animal  had  knowledge  of  the  fact  that 
such  dog  or  other  animal  would  kill  or  wound  such  sheep  or  goats. 
2.  Any  person  on  finding  any  dog  or  dogs  not  on  the  premises  of  its 
owner  or  possessor,  worrying,  wounding,  or  killing  any  sheep,  angora 
or  cashmere  goats,  may  at  the  time  of  so  finding  said  dog  or  dogs,  kill 
the  same,  and  the  owner  or  owners  thereof  shall  sustain  no  action  for 
damages  against  any  person  so  killing  such  dog  or  dogs." 

2.  Amended  by  Stats.  1903,  p.  54. 

AETICLE  III. 

Penal  Damages. 

§  3344.     Failure   to    quit,    after   notice. 
§  3345.     Tenant  willfully  holding  over. 
§  3346.     Injuries  to  trees,  etc. 
§  3346a.  Damages  for  firing  woods. 
§  3347.     Injuries  inflicted  in  a  duel. 
§  334S.     Same. 

§  3344.  Failure  to  qiiit,  after  notice.  If  any  tenant  give 
notice  of  his  intention  to  quit  the  premises,  and  does  not  de- 
liver up  the  possession  at  the  time  specified  in  the  notice,  he 
must  pay  to  the  landlord  treble  rent  during  the  time  he  con- 
tinues in  possession  after  such  notice. 

Legislation  §  3344.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

X.  Y.  Civ.  Code,  §  1868. 

§3345.  Tenant  willfully  holding  over.  If  any  tenant,  or 
any  person  in  collusion  with  the  tenant,  holds  over  any  lands 
or  tenements  after  demand  made  and  one  month's  notice,  in- 
■writing  given,  requiring  the  possession  thereof,  such  person 
holding  over  must  pay  to  the  landlord  treble  rent  during  the 
time  he  continues  in  possession  after  such  notice. 

Damages  for  unlawful  detainer:    See  Code  Civ.    Proc,  §§  735,  1174 

et  seq. 

Legislation  §  3345.     Enacted  March  21.  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1869. 

§  3346.  Injuries  to  trees,  etc.  For  wrongful  injuries  to 
timber,  trees,  or  underwood  upon  the  land  of  another,  or  re- 
moval thereof,  the  measure  of  damages  is  three  times  such  a 
sum  as  Avould  compensate  for  the  actual  detriment,  except 
where  the  trespass  was  casual  and  involuntary,  or  committed 
under  the  belief  that  the  land  belonged  to  the  trespasser,  or 
where  the  Avood  was  taken  by  the  authority  of  highway  offi- 


801    PENAL  DAMAGES.      GENERAL  PROVISIONS  AS  TO  DAMAGES.    §  3353 

cers  for  the  purposes  of  a  highway ;  in  which  cases  the  dam- 
ages are  a  sum  equal  to  the  actual  detriment. 

Damages  for  cutting  down  and  carrying  away  trees:  See  Code  Civ. 
Proc,  §  733. 

Legislation  §  3346.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1871. 

§  3346a.  Damages  for  firing-  woods.  Every  person  negli- 
gently setting  fire  to  his  own  woods,  or  negligently  suffering 
any  fire  to  extend  beyond  his  own  land,  is  liable  in  treble 
damages  to  the  party  injured. 

Legislation  §  3346a.  1.  Addition  by  Stats.  1901,  p.  421;  unconstitu- 
tional.    See  note,  §  4,  ante. 

2.  Added  by  Stats.  1905,  p.  621;  the  code  commissioner  saying,  "The 
new  section  incorporates  into  this  code  the  principle  now  declared  in 
§  3344  of  the  Political  Code." 

§  3347.  Injuries  inflicted  in  a  duel.  If  any  person  slays  or 
permanently  disables  another  person  in  a  duel  in  this  state, 
the  slayer  must  provide  for  the  maintenance  of  the  widow  or 
w4fe  of  the  person  slain  or  permanently  disabled,  and  for  the 
minor  children,  in  such  manner  and  at  such  cost,  either  by 
aggregate  compensation  in  damages  to  each,  or  by  a  monthly, 
quarterly,  or  annual  allowance,  to  be  determined  by  the  court. 
Duels  and  challenges:  See  Pen.  Code,  §§  225-232. 
Legislation  §  3347.     Enacted  March  21,   1872;   based  on  Stats.   1855, 

p.  152. 

§  3348.  Same.  If  any  person  slays  or  permanently  dis- 
ables another  person  in  a  duel  in  this  state,  the  slayer  is  liable 
for  and  must  pay  all  debts  of  the  person  slain  or  permanently 
disabled. 

Legislation  §  3348.     Enacted  March   21,  1872;   based  on   Stats.  1855, 

p.  152. 

ARTICLE  IV. 

General   Provisions. 

§  3353.  Value,  how  estimated  in  favor  of  seller. 

§  3354.  Value,  how  estimated  in  favor  of  buyer. 

§  3355.  Propertv  of  peculiar  value. 

§  3356.  Value  of  thing  in  action. 

§  3357.  Damages  allowed  in  this  chapter,  exclusive  of  others. 

§  3358.  Limitation  of  damages. 

§  3359.  Damages  to  be  reasonable. 

§  3360.  Nominal  damages. 

§  3353.  Value,  how  estimated  in  favor  of  seller.  In  esti- 
mating damages,  the  value  of  property  to  a  seller  thereof  is 
deemed  to  be  the  price  which  he  could  have  obtained  therefor 
in  the  market  nearest  to  the  place  at  which  it  should  have 
been  accepted  by  the  buyer,  and  at  such  time  after  the  breach 

Civ.  Code — 51 


§  3358  CIVIL  CODE.  802 

of  the  contract  as  would  have  sufficed,  with  reasonable  dili- 
gence, for  the  seller  to  effect  a  resale. 

Legislation  §  3353.     Enaeted  Marcli  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1872'. 

§  3354.  Value,  how  estimated  in  favor  of  buyer.  In  esti- 
mating damages,  except  as  provided  by  sections  three  thou- 
sand three  hundred  and  fifty-five  and  three  thousand  three 
hundred  and  fifty-six,  the  value  of  property,  to  a  buyer  or 
owner  thereof,  deprived  of  its  possession,  is  deemed  to  be  the 
price  at  which  he  might  have  bought  an  equivalent  thing  in 
the  market  nearest  to  the  place  Avhere  the  property  ought  to 
have  been  put  into  his  possession,  and  at  such  time  after  the 
breach  of  duty  upon  which  his  right  to  damages  is  founded  as 
would  suffice,  with  reasonable  diligence,  for  him  to  make  such 
a  purchase. 

Legislation  §  3354.     Enaeted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1873. 

§  3355.  Property  of  peculiar  value.  Where  certain  prop- 
erty has  a  peculiar  value  to  a  person  recovering  damages  for 
deprivation  thereof,  or  injury  thereto,  that  may  be  deemed 
to  be  its  value  against  one  who  had  notice  thereof  before 
incurring  a  liability  to  damages  in  respect  thereof,  or  against 
a  Avillful  wrong-doer. 

Legislation  §  3355.     Enaeted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code.  §  1874. 

§  3356.  Value  of  thing*  in  action.  For  the  purpose  of  esti- 
mating damages,  the  value  of  an  instrument  in  writing  is 
presumed  to  be  e(iual  to  that  of  the  property  to  which  it  en- 
titles its  owner.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  26fi.] 

Legislation  §  3356.     1,  Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1875. 

2.  Amended  by  Code  Amdts.  1873-74,  p.  266,  substituting  "an  instru- 
ment in  writing"  for  "a  thing  in  action." 

§  3357.  Damages  allow^ed  in  this  chapter,  exclusive  of 
others.  The  damages  prescribed  by  this  chapter  are  exclusive 
of  exemplary  damages  and  interest,  except  where  those  are 
expressly  mentioned. 

Exemplary  damages:   Ante,  §  3294. 
Interest:   Ante,  §§  3287-3290. 

Legislation  §  3357.     Enaeted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1876. 

§  3358.  Limitation  of  damages.  Notwithstanding  the  pro- 
visions of  this  chapter,  no  person  can  recover  a  greater  amount 
in  damages  for  the  breach  of  an  obligation  than  he  could  have 


803    SPECIFIC  AND  PREVENTIVE  RELIEF.    GENERAL  PRINCIPLES.     §  336G 

gained  by  the  full  performance  thereof  on  both  sides,  except 
in  the  cases  specified  in  the  articles  on  exemplary  damages 
and  penal  damages,  and  in  sections  three  thousand  three  hun- 
dred and  nineteen,  three  thousand  three  hundred  and  thirty- 
nine,  and  tliree  thousand  three  hundred  and  forty. 

Exemplary  damages:    Ante,  §  3294. 

Penal  damages:  Ante,  §§  3344-3348. 

Legislation  §  3358.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1877. 

§  3359.  Damages  to  be  reasonable.  Damages  must,  in  all 
cases,  be  reasonable,  and  where  an  obligation  of  any  kind 
appears  to  create  a  right  to  uneonscional)le  and  grosssly  op- 
pressive damages,  contrary  to  substantial  justice,  no  more 
than  reasonable  damages  can  be  recovered. 

Liquidated  damages  and  penalty:  See  ante,  §§  1670,  1671. 
Legislation  §  3359.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1S7S. 

§  3360.  Nominal  damages.  When  a  breach  of  duty  has 
caused  no  appreciable  detriment  to  the  party  affected,  he  may 
yet  recover  nominal  damages. 

Legislation  §  3360.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1879. 

TITLE  III. 

Specific  and  Preventive  Relief. 

Chapter  I.     General  Principles.     §§  3366-3369. 

II.     Specific   Eelief.     Articles   I-VI.     §§  3375-3415. 
III.     Preventive   Eelief.     §§3420-3423. 

CHAPTER  I. 

General  Principles. 

§  3366.  Specific  relief,  etc.,  when  allowed. 

§  3367.  Specific  relief,  how  given. 

§  3368.  Preventive   relief,  'how   given. 

§  3369.  Not  to  enforce  penalty,  etc. 

§3366.  Specific  relief,  etc.,  when  allowed.  Specific  or 
preventive  relief  may  be  given  as  provided  by  the  laws  of  this 
state.      [AniondnienC  approved  1905;  States  1905,  p.  622.] 

Possession  of  real  property:  Post,  §§  3375  et  seq. 

Possession  of  personal  property:  Post,  §§  3379  et  seq. 

Specific  performance  of  obligation:  Post,  §§  3384  et  seq. 

Eevision  of  contracts:  Post,  §§  3399  et  seq. 

Rescission  of  contracts:  Ante,  §§  1688  et  seq.;  post,  §§  3406  et  seq. 

Cancellation  of  instruments:  Post,  §§  3412  et  seq. 

Injunctions:  See  post,  §§  3420  et  seq. 


§  3369  CIVIL  CODE.  804 

Legislation  §  3366.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1880),  and  then  read:  "Specific  or  preventive 
relief  may  be  given  in  the  cases  specified  in  this  title,  and  in  no 
others." 

2.  Amendment  by  Stats.  1901,  p.  421;  unconstitutional.  See  note, 
§  4,  ante. 

3.  Amended  by  Stats.  1905,  p.  622;  the  code  commissioner  saying, 
"The  purpose  [of  the  amendment]  is  to  enlarge  the  scope  of  the 
section." 

§  3367.     Specific  relief,  how  given.     Specific  relief  is  given : 

1.  By  taking  possession  of  a  thing,  and  delivering  it  to  a 
claimant ; 

2.  By  compelling  a  party  himself  to  do  that  which  ought  to 
be  done;  or, 

3.  By  declaring  and  determining  the  rights  of  parties,  other- 
wise than  by  an  award  of  damages. 

Writ  of  mandate:  See  Code  Civ.  Proc,  §§  1084-1097.  See,  also, 
Code  Civ.  Proc,  tits.  "Lien,"  "Contesting  Elections,"  "Discharge  of 
Persons  Imprisoned  on  Civil  Process,"  "Forcible  Entry  and  Detainer," 
"Proceedings   Supplementary  to  Execution,"  etc. 

For  classification  of  instances  in  which  specific  relief  is  given,  see 
post,  §§  3375  et  seq. 

Legislation  §  3367.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  ISSl. 

§  3368.  Preventive  relief,  how  given.  Preventive  relief  is 
given  by  prohibiting  a  party  from  doing  that  which  ought  not 
to  be  done. 

Injunction:   See  Code  Civ.  Proc,  §§  525-533. 

Prohibition:   See  Code  Civ.  Proc,  §§  1102-1105. 

Preventive  relief,  generally:  See  post,  §§  3420  et  seq.  While  §  3420 
says  that  "preventive  relief  is  grante<l  by  injunction,  provisional  or 
final,"  the  code  commissioners  say,  citing  that  section,  that  "the  Code 
of  Civil  Procedure  provides  other  remedies,"  and  refer  to  writs  of 
prohibition,  certiorari,  and  proceedings  for  contempt. 

Certiorari:  See  Code  Civ.  Proc,  §§  1067  et  seq. 

Contempt:    See  Code   Civ.  Proc,  §§  1209-1222. 

Legislation  §  3368.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1SS2. 

§  3369.  Not  to  enforce  penalty,  etc.  Neither  specific  nor 
preventive  relief  can  be  granted  to  enforce  a  penal  law,  except 
in  a  case  of  nuisance,  nor  to  enforce  a  penalty  or  forfeiture  in 
any  case. 

Legislation  §  3369.     Enacted  March  21.  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  18S3. 


805       SPECIFIC  RELIEF.   POSSESSION  OF  PROPERTY.     §  3380 

CHAPTER  II. 

Specific  Relief, 

Article  I.  Possession  of  Eeal  Property.     §  3375. 

II.  Possession  of  Personal  Property.     §§  3379,  3380. 

III.  Specific   Performance   of   Obligations.     §§  3384-3395. 

IV.  Eevision  of  Contracts.      §§  3399-3402. 
V.  Eescission   of   Contracts.     §§  3406-3408. 

VI.     Cancellation   of   Instruments.     §§  3412-3415. 

AETICLE  I. 

Possession  of  Real  Property. 

§  3375.     Judgment  for  possession  or  title. 

§  3375.  Judgment  for  possession  or  title.  A  person  en- 
titled to  specific  real  property,  by  reason  either  of  a  perfected 
title,  or  of  a  claim  to  title  which  ought  to  be  perfected,  may 
recover  the  same  in  the  manner  prescribed  by  the  Code  of 
Civil  Procedure,  either  by  a  judgment  for  its  possession,  to  be 
executed  by  the  sheriff,  or  by  a  judgment  requiring  the  other 
party  to  perfect  the  title,  and  to  deliver  possession  of  the  prop- 
erty. 

Actions  concerning  real  estate:  See  Code  Civ.  Proc,  §§  738-751, 
Writ  of  restitution:  See  Code  Civ.  Proc,  §  957. 
Specific  enforcement  of  contract  to  convey  realty:  See  post,  §§  3384 
et  seq. 

Legislation  §  3375,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1884. 

AETICLE  II. 
Possession  of  Personal  Property. 
§  3379,     Judgment  for  delivery, 
§  3380.     Specific  delivery. 

§  3379.  Judgment  for  delivery,  A  person  entitled  to  the 
immediate  possession  of  specific  personal  property  may  re- 
cover the  same  in  the  manner  provided  by  the  Code  of  Civil 
Procedure. 

Claim  and  delivery:   Code  Civ.  Proc,  §§  509-520. 
Breach  of  agreement  to  transfer  personalty  may  be  compensated  in 
damages:  Post,  §  3387, 

Legislation  §  3379,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y,  Civ.  Code,  §  1885. 

§  3380.  Specific  delivery.  Any  person  having  the  posses- 
sion or  control  of  a  particular  article  of  personal  property,  of 
which  he  is  not  the  owner,  may  be  compelled  specifically  to 
deliver  it  to  the  person  entitled  to  its  immediate  possession. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  266.] 
Breach  of  agreement  to  transfer  personalty:  See  post,  §  3387. 


k 


§  3385  cwiL  CODE.  806 

Legislation  §  3380.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1886),  and  differed  from  the  amendment  of 
1873—74,  the  present  section  then  being  the  principal  part  of  the  in- 
troductory paragraph,  the  section  thereafter  proceeding,  "in  either  of 
the  following  cases:  1.  When  the  thing  claimed  is  held  subject  to  an 
express  trust  in  favor  of  the  claimant;  2.  When  pecuniary  compensa- 
tion would  not  afford  adequate  relief  for  the  loss  of  the  thing  claimed; 
or,  3.  When  it  would  be  extremely  difficult  to  ascertain  the  actual  dam- 
age caused  by  its  loSs." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  260. 

AETICLE    in. 

Specific  Performance  of  Obligations. 

§  3384.  Specific  performance. 

§  3385.  Remedy  mutual.     [Repealed.] 

§  3386.  No  remedy  unless  mutual. 

§  3387.  Distinction  between  real  and  personal  property. 

§  3388.  Contract  signed  by  one  party  only,  may  be  enforced  by  other. 

§  3389.  Liquidation   of  damages  not   a  bar  to  specific   performance. 

§  3390.  What   cannot   be   specifically  enforced. 

§  3391.  What  parties  cannot  be  compelled  to  perform. 

§  33'92.  What  parties  cannot  have  specific  performance  in  their  favor. 

§  3393.  Specific     performance     not     required     when     oppressive.     [Re- 
pealed.] 

§  3394.  Agreement  to  sell  property  by  one  who  has  no  title. 

§  3395.  Relief  against  parties  claiming  under  person  bound  to  perform. 

§  3384.  Specific  performance.  Except  as  otherwise  pro- 
vided in  tliis  article,  the  si^ecific  performance  of  an  oliligation 
may  he  compelled.  [Amendment  approved  1874;  Code  Amdts. 
1873-74,  p.  266.] 

Specific  performance:  See  post,  §§  3390  and  3392. 

Specifically   enforcing  revised  contract:    See  post,  §  3402. 

Enforcement  of  contract  of  decedent:  See  Code  Civ.  Proc,  §§  1597 
et  seq. 

Legislation  §  3384.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1887),  the  amendment  of  1873-74  (the  present 
section)  then  being  the  introductory  paragraph,  and  the  subdivisions 
reading,  "1.  When  the  act  to  be  done  is  in  the  performance,  wholly 
or  partly,  of  an  express  trust;  2.  When  the  act  to  be  done  is  such  that 
pecuniary  compensation  for  its  non-performance  would  not  afford  ad- 
equate relief;  3.  When  it  would  be  extremely  difficult  to  ascertain  the 
actual  damage  caused  by  the  non-performance  of  the  act  to  be  done: 
or,  4.  When  it  has  been  expressly  agreed,  in  writing,  between  the  par- 
ties to  the  contract,  that  specific  performance  thereof  may  be  required 
■  by  either  party,  or  that  damages  shall  not  be  considered  adequate 
relief." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  206. 

§3385.  Remedy  mutual.  [Repealed  1874;  Code  Amdts. 
1873-74,  p.  267.] 

Legislation  §  3385.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  267. 


807  SPfiCIPiC  PERFORMANCE   OF   OBLIGATIONS.  §  3390 

§  3386.  No  remedy  unless  mutual.  Neither  party  to  an 
obligation  can  be  compelled  specifically  to  perform  it,  unless 
the  other  party  thereto  has  performed,  or  is  compellable 
specifically  to  perform,  everything  to  wliich  the  former  is  en- 
titled under  the  same  obligation,  either  completely  or  nearly 
so,  together  with  full  compensation  for  any  Avant  of  entire 
performance. 

Performance   by   parties   seeking   execution:     Compare    with    post, 
§  3392. 

Legislation  §  3386.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1889. 

§  3387.     Distinction  between  real  and  personal  property. 

It  is  to  be  presumed  that  the  breach  of  an  agreement  to  trans- 
fer real  property  cannot  be  adequately  relieved  by  pecuniary 
comi^ensation,  and  that  the  breach  of  an  agreement  to  transfer 
personal  property  can  be  thus  relieved. 

Legislation  §  3387.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1890. 

§  3388.  Contract  signed  by  one  party  only,  may  be  enforced 
by  other.  A  party  who  has  signed  a  written  contract  may  be 
compelled  specifically  to  perform  it,  though  the  other  party 
has  not  signed  it,  if  the  latter  has  performed,  or  offers  to  per- 
form it  on  his  part,  and  the  case  is  otherwise  proper  for  en- 
forcing specific  performance. 

Legislation  §  3388.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1891. 

§  3389.  Liquidation  of  damages  not  a  bar  to  specific  per- 
formance. A  contract  otherwise  proper  to  be  specifically  en- 
forced, may  be  thus  enforced,  though  a  penalty  is  imposed,  or 
the  damages  are  liquidated  for  its  breach,  and  the  party  in 
default  is  willing  to  pay  the  same. 

Legislation  §  3389.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1892. 

§  3390.  What  cannot  be  specifically  enforced.  The  follow- 
ing obligations  cannot  be  specifically  enforced: 

1.  An  obligation  to  render  personal  service; 

2.  An  ol)ligation  to  employ  another  in  personal  service ; 

3.  An  agreement  to  submit  a  controversy  to  arbitration ; 

4.  An  agreement  to  perform  an  act  which  the  party  has  not 
power  lawfully  to  perform  when  required  to  do  so ; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife 
of  the  contracting  party,  or  of  any  other  third  person ;  or, 

6.  An  agreement,  the  terms  of  Avhich  are  not  sufficiently  cer- 
tain to  make  the  precise  act  which  is  to  be  done  clearly  ascer- 
tainable. 


§  3396  CIVIL  CODE.  80S 

Legislation  §  3390.     Enacted  Mareli  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1893. 

§  3391.     What   parties    cannot   be,  compelled   to   perform. 

Specific  performance  cannot  be  enforced  against  a  party  to  a 
contract  in  any  of  the  following  cases  : 

1.  If  he  has  not  received  an  adequate  consideration  for  the 
contract ; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable ; 

3.  If  his  assent  was  obtained  by  the  misrepresentation,  con- 
cealment, circumvention,  or  unfair  practices  of  any  party  to 
whom  performance  would  become  due  under  the  contract,  or 
by  any  promise  of  such  party  which  has  not  been  substantially 
fulfilled ;  or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake, 
misapprehension,  or  surprise,  except  that  where  the  contract 
provides  for  compensation  in  case  of  mistake,  a  mistake  within 
the  scope  of  such  provision  may  be  compensated  for,  and  the 
contract  specifically  enforced  in  other  respects,  if  proper  to 
be  so  enforced. 

Legislation  §  3391.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1894. 

§  3392.  What  parties  cannot  have  specific  performance  in 
their  favor.  Specific  performance  cannot  be  enforced  in  favor 
of  a  party  who  has  not  fully  and  fairly  performed  all  the  con- 
ditions precedent  on  his  part  to  the  obligation  of  the  other 
party,  except  where  his  failure  to  perform  is  only  partial,  and 
either  entirely  immaterial,  or  capable  of  being  fully  com- 
pensated, in  which  case  specific  performance  may  be  com- 
pelled, upon  full  comi^ensation  being  made  for  the  default. 

Legislation  §  3392.     Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1895. 

§3393.     Specific   performance  not  required  when   oppres- 
sive.     [Repealed  1874;  Code  Amdts.  1873-74,  p.  267.] 
Legislation  §  3393.     1.  Enacted  March  21,  1872. 
2.  Eepealed  by  Code  Amdts.  1873-74,  p.  2G7. 

§  3394.     Agreement  to  sell  property  by  one  who  has  no  title. 

An  agreement  for  the  sale  of  property  cannot  be  specifically 
enforced  in  favor  of  a  seller  who  cannot  give  to  the  buyer  a 
title  free  from  reasonable  doubt. 

Legislation  §  3394.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1897. 

§  3395.  Relief  against  parties  claiming  under  person  bound 
to  perform.  Whenever  an  obligation  in  respect  to  real  prop- 
erty would  be  specifically  enforced  against  a  particular  per- 


809  REVISION    OF    CONTRACTS.  §  3402 

son,  it  may  be  in  like  manner  enforced  against  any  other  per- 
son claiming  under  him  by  a  title  created  subsequently  to  the 
obligation,  except  a  purchaser  or  encumbrancer  in  good  faith 
and  for  value,  and  except,  also,  that  any  sucli  person  may 
exonerate  himself  by  conveying  all  his  estate  to  the  person 
entitled  to  enforce  the  obligation. 

Legislation  §  3395.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1898. 

ARTICLE  IV. 

Revision  of  Contracts. 

§  3399.  When  contract  may  be  revised. 

§  3400.  Presumption  as  to  intent  of  parties. 

§  3401.  Principles   of   revision. 

§  3402.  Enforcement  of  revised  contract. 

§  3399.  When  contract  may  be  revised.  When,  through 
fraud  or  a  mutual  mistake  of  the  parties,  or  a  mistake  of  one 
party,  which  the  other  at  the  time  knew  or  suspected,  a  writ- 
ten contract  does  not  truly  express  the  intention  of  the  par- 
ties, it  may  be  revised  on  the  application  of  a  party  aggrieved, 
so  as  to  express  that  intention,  so  far  as  it  can  be  done  with- 
out prejudice  to  rights  acquired  by  third  persons,  in  good 
faith  and  for  value. 

Revised  to  express  intention:  Post,  §  3401. 

Legislation  §  3399.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1899. 

§  3400.  Presumption  as  to  intent  of  parties.  For  the  pur- 
pose of  revising  a  contract,  it  must  be  presumed  that  all  the 
parties  thereto  intended  to  make  an  equitable  and  conscien- 
tious agreement. 

Legislation  §  3400.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1900. 

§  3401.  Principles  of  revision.  In  revising  a  Avritten  in- 
strument, the  court  may  inquire  what  the  instrument  was 
intended  to  mean,  and  what  were  intended  to  be  its  legal  con- 
sequences, and  is  not  confined  to  the  inquiry  what  the  language 
of  the  instrument  was  intended  to  be. 

Legislation  §  3401.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1901. 

§  3402.  Enforcement  of  revised  contract.  A  contract  may 
be  first  revised  and  then  specifically  enforced. 

Legislation  §  3402.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1902. 

2.  Amendment  by  Stats.  1901,  p.  422;  unconstitutional.  See  note, 
§  4,  ante. 


§  3412  ,  CIVIL  CODE.  810 

ARTICLE   V. 

Rescission  of  Contracts. 

§  3406.     When  rescission  may  be  adjudged. 

§   3407.     Rescission  for  mistake. 

§  3408.     Court  may  require  party  rescinding  to  do  equity. 

§  3406.  When  rescission  may  be  adjudged.  The  rescission 
of  a  written  contract  may  be  adjudged,  on  the  application  of 
a  party  aggrieved: 

1.  In  any  of  the  cases  mentioned  in  section  sixteen  hundred 
and  eighty-nine ;  or, 

2.  AVhere  the  contract  is  unlawful,  for  causes  not  apparent 
upon  its  face,  and  the  parties  Avere  not  equally  in  fault ;  or, 

3.  When  the  public  interest  will  be  prejudiced  by  permit- 
ting it  to  stand. 

Rescission  of  contracts  "by  party  thereto:   Ante,  §  1689. 

Rescission  against  consent,  how  effected:   Ante,  §  1691. 

Cancellation  of  instruments:  See  post.  §§  3412  et  seq. 

Rescission,  how  effected:  See  ante,  §  1691. 

Legislation  §  3406.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code.  §  1903. 

2.  Amendment  by  Stats.  1901,  p.  422;  unconstitutional.  See  note. 
§  4,  ante. 

§  3407.     Rescission  for  mistake.     Eescission  cannot  be  ad- 
judged for  mere  mistake,  unless  the  party  against  whom  it  is 
adjudged  can  be  restored  to  substantially  the  same  position 
as  if  the  contract  had  not  been  made. 
Placing  party  in  statu  quo:  Ante,  §  1691. 

Legislation  §  3407.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1904. 

§  3408.     Court  may  require  party  rescinding'  to  do  equity. 

On  adjudging  the  rescission  of  a  contract,  the  court  may  re- 
quire the  party  to  Avhom  such  relief  is^  granted  to  make  any 
compensation  to  the  other  which  justice  may  require. 

Legislation  §  3408.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1905. 

ARTICLE  VI. 

Cancellation  of  Instruments. 

§  3412.  When  cancellation  may  be  ordered. 

§  3413.  Instrument  obviously  void. 

§  3414,  Cancellation  in  part. 

§  3415.  Reissuance,   etc..   of  lost   private   documents   or  instruments. 

§  3412.  When  cancellation  may  be  ordered.  A  written  in- 
strument, in  respect  to  which  there  is  a  reasonable  apprehen- 
sion that  if  left  outstanding  it  may  cause  serious  injury  to  a 
person  against  whom   it  is  void  or  voidable,  may,  upon  his 


811     CANCELLATION  OF  INSTRUMENTS.      PREVENTIVE  RELIEF.      §  3420 

application,  be  so  adjudged,  and  ordered  to  be  delivered  up  or 
canceled. 

Rescission  of  contracts:  See  ante,  §§  1688  et  seq.,  3406  et  seq. 

Removing  cloud  on  title:  See  Code  Civ.  Proc,  §  738. 

Cancellation  and  alteration  of  instruments  by  parties  thereto:   See 

ante,  §§  1697  et  seq. 

Legislation  §  3412.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1906. 

2.  Amendment  by  Stats.  1901,  p.  422;  unconstitutional.  See  note, 
§  4,  ante. 

§  3413.  Instrument  obviously  void.  An  instrument,  the 
invalidity  of  which  is  ai^parent  upon  its  face,  or  upon  the  face 
of  another  instrument  which  is  necessary  to  the  use  of  the 
former  in  evidence,  is  not  to  be  deemed  capable  of  causing 
injury,  within  the  provisions  of  the  last  section. 

Legislation  §  3413.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1907. 

§  3414.  Cancellation  in  part.  Where  an  instrument  is  evi- 
dence of  different  rights  or  obligations,  it  may  be  canceled  in 
part,  and  allowed  to  stand  for  the  residue. 

Legislation  §  3414.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1908. 

§  3415.  Reissuance,  etc.,  of  lost  private  documents  or  instru- 
ments. An  action  may  be  maintained  by  any  person  inter- 
ested in  any  private  document  or  instrument  in  writing,  which 
has  been  lost,  destroyed  or  damaged  by  conflagration  or  other 
public  calamity,  to  prove,  estal)1ish,  compel  the  reissuance,  re- 
execution,  and  reacknowledgment  of  such  document  or  instru- 
ment. If  such  document  or  'instrument  be  a  negotiable  in- 
strument, the  court  must  compel  the  person  in  whose  favor  it 
is  draAvn  to  give  a  bond  executed  by  himself  and  two  sufficient 
sureties  to  indemnify  the  person  reissuing,  re-executing,  or 
reacknowledging  the  same  against  any  lawful  claim  thereon. 
Legislation  §  3415.     Added  by  Stats.  Extra  Sess.  1906,  p.  86. 

CHAPTER  III. 

Preventive  Relief. 

§  3420.  Preventive   relief,   how  granted. 

§  3421.  Provisional  injunctions. 

§  3422.  Injunction,  when  allowed. 

§  3423.  Injunction,  when  not  allowed. 

§  3420.     Preventive  relief,  how  granted.     Preventive  relief 
is  granted  by  injunction,  provisional  or  final. 
Proceedings  in  other  courts;  Post,  §  3423. 

Mortgage.     Injunction   to  restrain  party  in  possession  from  waste 
during  foreclosure  suit:  Code  Civ.  Proc,  §  745. 
Enjoining  nuisance:  See  Code  Civ.  Proc,  §  731. 

Legislation  §  3420.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  y.  Civ.  Code,  §  1909. 


J  3423  CIVIL  CODE.  -  812 

§  3421.  Provisional  injunctions.  Provisional  injunctions 
are  regulated  by  the  Code  of  Civil  Procedure. 

Provisional  injunctions:  See  Code  Civ.  Proc,  §§  525-533. 
Legislation  §  3421.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1910. 

§  3422.  Injunction,  when  allowed.  Except  where  otherwise 
provided  by  this  title,  a  final  injunction  may  be  granted  to 
prevent  the  breach  of  an  obligation  existing  in  favor  of  the 
applicant : 

1.  Where  pecuniary  compensation  would  not  afford  ade- 
quate relief; 

2.  Where  it  would  be  extremely  difficult  to  ascertain  the 
amount  of  compensation  which  would  afford  adequate  relief; 

3.  Where  the  restraint  is  necessary  to  prevent  a  multiplicity 
of  judicial  proceedings ;  or, 

4.  Where  the  obligation  arises  from  a  trust. 

Legislation  §  3422.  Enacted  March  21,  1872;  based  on  Field's  Draft. 
N.  Y.  Civ.  Code,  §  1911. 

§  3423.  Injunction,  when  not  allowed.  An  injunction  can- 
not be  granted : 

First.  To  stay  a  judicial  proceeding  pending  at  the  com- 
mencement of  the  action  in  which  the  injunction  is  demanded, 
unless  such  restraint  is  necessary  to  prevent  a  multiplicity  of 
such  proceedings. 

Second.  To  stay  proceedings  in  a  court  of  the  United 
States. 

Third.  To  stay  proceedings  in  another  state  upon  a  judg- 
ment of  a  court  of  that  state. 

Fourth.  To  prevent  the  execution  of  a  public  statute,  by 
officers  of  the  law,  for  the  public  benefit. 

Fifth.  To  prevent  the  breach  of  a  contract,  the  perform- 
ance of  which  would  not  be  specifically  enforced. 

Sixth.  To  prevent  the  exercise  of  a  public  or  private  office, 
in  a  lawful  manner,  by  the  person  in  possession. 

Seventh.  To  prevent  a  legislative  act  by  a  municipal  cor- 
poration. [Amendment  approved  1874 ;  Code  Amdts.  1873-74, 
p.  267.] 

Legislation  §  3423.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1912),  the  introductory  paragraph  and  subds. 
1,  2,  3,  4,  and  5  reading  as  at  present,  the  section  thereafter  reading. 
"6.  To  prevent  an  injury  to  the  person,  character,  or  personal  relations 
of  the  applicant,  not  amounting  to  a  nuisance;  except  that  in  an  action 
for  divorce,  an  injunction  may  be  granted  to  prevent  interference  with 
a  wife  or  child;  7.  To  prevent  the  exercise  of  a  public  or  private  office, 
in  a  lawful  manner,  by  the  person  in  possession;  S.  To  prevent  a  legis- 
lative act  by  a  municipal  corporation;  or  9.  Where  relief,  equally  effi- 
cacious, can  be  obtained  by  any  other  usual  mode  of  proceeding,  except 
in  case  of  breach  of  trust." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  267. 


3-X23.  Injunction;  when  not  allowed.  An  injunction  can  not 
be  granted; 

First.  To  stay  a  judicial  proceeding  pending  at  tlie  commence- 
ment of  the  action  in  which  the  injunction  is  demanded,  unless 
such  restraint  is  necessary  to  prevent  a  Multiplicity  of  such  pro- 
ceedings. 

Second.    To  stay  proceedings  in  a  court  of  the  United  States. 

Third.  To  stay  proceedings  in  another  state  upon  a  judgment  of 
a  court  of  that  state. 

Fourtli.  To  prevent  the  execution  of  a  public  statute,  by  offlcers 
of  the  law,  for  the  public  benefit. 

Fifth.  To  prevent  the  breach  of  a  contract,  [other  than  a  con- 
tract in  writing  for  the  rendition  or  furnishing  of  personal  services 
from  one  to  another  where  the  minimum  compensation  for  such 
service  is  at  the  rate  of  not  less  than  six  thousand  dollars  per 
annum  and  where  the  promised  servivce  is  of  a  special,  unique, 
unusual,  extraordinary  or  intellectual  character  which  gives  it 
peculiar  value  the  loss  of  which  can  not  be  reasonably  or  ade- 
quately compensated  in  damages  in  an  action  at  law,]  the  per- 
formance of  which  would  not  be  specifically  enforced. 

Sixth.  To  prevent  the  exercise  of  a  public  or  private  office,  in  a 
lawful  mannei-,  by  the  person  in  possession. 

Seventh.  To  prevent  a  legislative  act  by  a  municipal  corpora- 
tion. (In  effect  90  days  from  and  after  April  22,  1919.  Stats.  1919, 
226.)  '  Civil  Code,  1919. 


813       DEBTOR  AND  CREDITOR.      GENERAL  PRINCIPLES  AS  TO.       §  3432 


PAET  II. 

SPECIAL  EELATIONS  OF  DEBTOR  AND 
CREDITOR. 

Title  I.     General  Principles.     §§  3429-3433. 

II.     Fraudulent  Instruments  and  Transfers.    §§  3439- 
3442. 

III.     Assignments  for  the  Benefit  of  Creditors.  §§  3449- 
3473. 

TITLE  I. 
General  Principles. 

§  3429.  Who  is  a   debtor. 

§  3430.  Who  ia  a  creditor. 

§  3431.  Contracts  of  debtor  are  valid. 

§  3432.  Payments  in  preference. 

§  3433.  Eelative  rights  of  different  creditors. 

§  3429.     Who  is  a  debtor.     A  debtor,  within  the  meaning  of 

this  title,  is  one  who,  by  reason  of  an  existing  obligation,  is  or 

may  become  liable  to  pay  money  to  another,  whether  such 

liability  is  certain  or  contingent. 

Legislation  §  3429.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1913. 

§  3430.  Who  is  a  creditor.  A  creditor,  within  the  meaning 
of  this  title,  is  one  in  whose  favor  an  obligation  exists,  by 
reason  of  which  he  is,  or  may  become,  entitled  to  the  payment 
of  money. 

Legislation  §  3430.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1914. 

§  3431.  Contracts  of  debtor  are  valid.  In  the  absence  of 
fraud,  every  contract  of  a  debtor  is  valid  against  all  his  cred- 
itors, existing  or  subsequent,  who  have  not  acquired  a  lien 
on  the  property  affected  by  such  contract. 

Legislation  §  3431.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1915. 

§  3432.  Payments  in  preference.  A  debtor  may  pay  one 
creditor  in  preference  to  another,  or  may  give  to  one  creditor 
security  for  the  payment  of  his  demand  in  preference  to  an- 
other. 

Preferring  creditor:    Post,  §  3457,  subd.   1. 

Legislation  §  3432.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1916. 


§  3440  CIVIL  CODE.  814  - 

§  3433.  Relative  rights  of  different  creditors.  Where  a 
creditor  is  entitled  to  resort  to  each  of  several  funds  for  the 
satisfaction  of  his  claim,  and  another  person  has  an  interest  in, 
or  is  entitled  as  a  creditor  to  resort  to  some,  but  not  all  of 
them,  the  latter  may  require  the  former  to  seek  satisfaction 
from  those  funds  to  which  the  latter  has  no  such  claim,  so  far 
as  it  can  be  done  without  impairing  the  right  of  the  former 
to  complete  satisfaction,  and  without  doing  injustice  to  third 
persons. 

Marshaling  of  assets:  See  ante,  §  2899. 

Legislation  §  3433.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1917. 


TITLE  II. 
Fraudulent  Instruments  and  Transfers. 

§  3439.  Transfers,  etc.,  ■with  intent  to   defraud  creditors. 

§  3440.  Certain  transfers  presumed  fraudulent. 

§  8441.  Creditor's  right  must  be  judicially  ascertained. 

§  3442.  Question  of  fraud,  how  determined. 

§  3439.     Transfers,   etc.,  v^ith  intent  to  defraud  creditors. 

Every  transfer  of  property  or  cliarge  thereon  made,  every 
obligation  incurred,  and  every  judicial  proceeding  taken,  with 
intent  to  delay  or  defraud  any  creditor  or  other  person  of  his 
demands,  is  void  against  all  creditors  of  the  debtor,  and  their 
successors  in  interest,  and  against  any  person  upon  whom  the 
estate  of *the  debtor  devolves  in  trust  for  the  benefit  of  others 
than  the  debtor. 

Arrest:  See  Code  Civ.  Proc,  §  479. 

Fraudulent  conveyance:   See  Pen.  Code,  §§  154,  531. 

Transfers  without  consideration:  See  post,  §  3442. 

Legislation  §  3439.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.   Y.  Civ.  Code,  §  1918;  Fraudulent   Conveyance  and  Contract  Act  of 
1850,  Stats.  1850,  p.  266,  §  20. 

§  3440.  Certain  transfers  presumed  fraudulent.  Every 
transfer  of  personal  property,  otlier  than  a  thing  in  action, 
or  a  ship  or  cargo  at  sea  or  in  a  foreign  port,  and  every  lien 
thereon,  other  than  a  mortgage,  when  allowed  by  law,  and  a 
contract  of  bottomry  or  respondentia,  is  conclusively  pre- 
sumed if  made  by  a  person  having  at  the  time  the  possession 
or  control  of  the  property,  and  not  accompanied  by  an  im- 
mediate delivery,  and  followed  by  an  actual  and  continued 
change  of  possession  of  the  things  transferred,  to  be  fraud- 
ulent, and  therefore  void,  against  those  who  are  his  creditors 
while  he  remains  in  possession,  and  the  successors  in  interest 
of  such  creditors,  and  against  any  persons  on  whom  his  estate 


terms,  and  place  of  said  sale,  the  names  and  addressres  of  the 
vendor  and  auctioneer,  and  a  general  statement  of  the  character 
of  the  [merchandise  or  property]  intended  to  be  sold;  but  such 
sale  shall  in  no  event  occur  within  [seven]  days  of  the  date  of 
recordation  of  said  notice;  provided,  further,  that  the  provisions 
of  this  section  shall  not  apply  or  extend  to  any  stale,  [transfer, 
assignment  of  mortgage]  made  under  the  direction  or  order  of 
a  court  of  competent  jurisdiction  or  by  any  executor,  adminis- 
trator, guardian,  receiver,  or  other  officer  or  person  acting  in 
the  regular  and  proper  discharge  of  official  duty,  or  in  the  dis- 
chai-ge  of  any  trust  imposed  upon  him  by  law,  nor  to  any 
transfer  or  assignment,  [statutory  or  otherwise,]  made  for  the 
benefit  of  creditoi's  generally,  nor  to  any  sale,  [transfer,  assign- 
ment or  mortgage]  of  any  property  exempt  from  execution. 
(In  effect  90  days  from  and  after  April  27,  1917.  Stats.  1917, 
Chap.    171.)  Civ.   Code,    1917. 


34:40.  Certain  Transfers  Presumed  Fraudulent.  E^-ery  trans- 
fer of  personal  property,  other  than  a  thing  in  action,  or  a 
.ship  or  cargo  at  sea  or  in  a  foreign  port,  and  every  lien  thereon, 
other  than  a  mortgage,  when  allowed  by  law,  and  a  contract 
of  bottomry  or  respondentia,  is  conclusively  presumed  if  made 
by  a  person  having'  at  the  time  the  possession  or  control  of  the 
property,  and  not  accompanied  by  an  immediate  delivery,  and 
followed  by  an  actual  and  continued  change  of  possession  of 
the  things  transferred,  to  be  fraudulent,  and  therefore  void, 
against  those  who  are  his  creditors  while  he  remains  in  posses- 
sion, and  the  successors  in  interest  of  such  creditors,  and 
against  any  persons  on  whom  his  estate  devolves  in  trust  for 
the  benefit  of  others  than  hiriiself,  and  against  purchasers  or 
encumbrances  in  good  faith  subsequent  to  the  transfer;  provided, 
however,  that  the .  provisions  of  this  section  shall  not  apply  to 
the  transfers  of  wines  in  the  wineries  or  wine  cellars  of  the 
makers  or  owners  thereof,  or  other  persons  having  possession, 
care,  and  control  of  the  same,  and  the  pipes,  casks,  and  tanks 
in  which  the  said  wines  are  contained,  which  transfers  shall  be 
made  in  writing,  and  certified  and  verified  in  the  same  form 
as  provided  for  chattel  mortgages,  and  which  shall  be  recorded 
in  the  book  of  miscellaneous  records  in  the  office  of  the  county 
recorder  of  the  countj'  in  which  the  same  are  situated;  provided, 
also.  Chat  the  sale,  transfer,  or  assignment  of  a  stock  in  trade 
Tor  of  such  a  quantity  of  a  stock  in  trade  as  to  be  substantially 
a  whole)  in  bulk,  or  in  any  manner  otherwise  than  in  the 
ordinary  course  of  trade  and  in  the  regular  and  usual  practice 
and  method  of  business  of  the  vendor,  transferrer,  or  assignor, 
[and  the  sale,  transfer,  assignment  or  mortgage  of  the  fixtures 
or  store  equipment  of  a  merchant,]  will  be  conclusively  pre- 
sumed to  be  fraudulent  and  void  as  against  the  existing  creditors 
of  the  vendor,  [transferrer,  assignor  or  mortgagor,]  unless  at 
least  [seven]  days  before  the  consummation  of  such  sale, 
[transfer,  assignment  or  mortgage]  the  vendor,  [transferrer,  as- 
signor or  mortgagor,]  or  the  intended  vendee,  [transferee,  as- 
signee, or  mortgagee,]  shall  record  in  the  office  of  the  coimty 
recorder  in  the  county  or  counties  in  which  the  said  stock  in 
trade,  [fixtures  or  equipment  are]  situated  a  notice  of  said 
intended  sale,  [transfer,  assignment  or  mortgage.]  stating  the 
name  and  address  of  the  intended  vendor,  [transferrer,  assignor 
or  mortgagor,]  and  the  name  and  address  of  the  intendoil 
vendee,  [transferee,  assignee  or  mortgagee,]  and  a  general  state- 
ment of  the  cliaiacter  of  the  [merchandise  or  property]  in- 
tended to  be  sold,  [assigned,  transferred  or  mortgaged,]  and  the 
date  when  and  the  place  where  the  purchase  price  [or  con- 
sideration,] if  any  there  be,  is  to  be  paid;  provided,  nevertheless, 
that  if  such  intended  sale  is  to  be  at  public  auction  the  notice 
above    required    to    be    recorded    shall    state    that    fa'Ct,    the    time 


:t 


815  FRAUDULENT  INSTRUMENTS  AND  TRANSFERS.  §  3440 

devolves  in  trust  for  the  benefit  of  others  than  himself,  and 
against  purchasers  or  encumbrancers  in  good  faith  subseciuent 
to  the  transfer;  provided,  hoAvever,  that  the  provisions  of  this 
section  shall  not  apply  to  the  transfers  of  wines  in  the  wineries 
or  wine-cellars  of  the  makers  or  owners  thereof,  or  other  per- 
sons ha,ving  possession,  care,  and  control  of  the  same,  and  the 
pipes,  casks,  and  tanks  in  which  the  said  wines  are  contained, 
which  transfers  shall  be  made  in  writing,  and  certified  and 
verified  in  the  same  form  as  provided  for  chattel  mortgages  and 
which  shall  be  recorded  in  the  book  of  miscellaneous  records  ip 
the  office  of  the  county  recorder  of  the  county  in  which  the  same 
are  situated ;  provided,  also,  that  the  sale,  transfer,  or  assign- 
ment of  a  stock  in  trade  (or  of  such  a  quantity  of  a  stock  in 
trade  as  to  be  substantially  a  whole)  in  bulk,  or  in  any  manner 
otherwise  than  in  the  ordinary  course  of  trade  and  in  the 
regular  and  usual  practice  and  method  of  business  of  the 
vendor,  transferrer,  or  assignor,  Avill  be  conclusively  presumed 
to  be  fraudulent  and  void  as  against  the  existing  creditors  of 
the  vendor,  transferrer,  or  assignor,  unless  at  least  five  days 
before  the  consummation  of  such  sale,  transfer,  or  assignment, 
the  vendor,  transferrer,  or  assignor,  or  the  intended  vendee, 
transferee,  or  assignee  shall  record  in  the  office  of  the  county  re- 
corder in  the  county  or  counties  in  which  the  said  stock  in  trade 
is  situated,  a  notice  of  said  intended  sale,  transfer,  or  assign- 
ment, stating  the  name  and  address  of  the  intended  vendor, 
transferrer  or  assignor  and  the  name  and  address  of  the  intended 
vendee,  transferee,  or  assignee,  and  a  general  statement  of  the 
character  of  the  property  or  merchandise  intended  to  be  sold, 
assigned,  or  transferred,  and  the  date  when,  and  the  place 
where,  the  purchase  price,  if  any  there  be,  is  to  be  paid ;  pro- 
vided, nevertheless,  that  if  such  intended  sale  is  to  be  at  public 
auction  the  notice  above  required  to  be  recorded  shall  state 
that  fact,  the  time,  terms,  and  place  of  said  sale,  the  names 
and  addresses  of  the  vendor  and  auctioneer,  and  a  general 
statement  of  the  character  of  the  property  or  merchandise  in- 
tended to  be  sold ;  but  such  sale  shall  in  no  event  occur  within 
five  days  of  the  date  of  recordation  of  said  notice;  provided 
further,  that  the  provisions  of  this  section  shall  not  apply  or 
extend  to  any  sale,  transfer  or  assignment  made  under  the 
direction  or  order  of  a  court  of  competent  jurisdiction,  or  by 
any  executor,  administrator,  guardian,  receiver,  or  other 
officer  or  person  acting  in  the  regular  and  proper  discharge 
of  official  duty,  or  in  the  discharge  of  any  trust  imposed  upon 
him  by  law,  nor  to  any  transfer  or  assignment  made  for  the 
benefit  of  creditors  generally,  nor  to  any  sale,  transfer  or  as- 


§  3'142  CIVIL  CODE.  816 

signment  of  any  property  exempt  from  execution.  [Amend- 
ment approved  1903 ;  Stats.  1903,  p.  111.] 

Chattel  mortgage.  Change  of  possession  not  necessary;  it  must  be 
recorded:  Ante,  §  2959. 

Chattel  mortgage,  when  void  as  to  creditors  and  purchasers:  Ante, 
§  2957. 

Bond  by  grantee  on  suit  to  set  aside  fraudulent  conveyance:  See  Code 
Civ.  Proc,  §§  676-68Uio. 

Recovery  by  executor  of  property  fraudulently  conveyed  by  dece- 
dent: See  Code  Civ.  Proc,  §§  1589-1591. 

Legislation  §  3440.  1.  Enacted  March  21,  1872  (based  on  Field's 
.Draft,  N.  Y.  Civ.  Code,  §  1919),  the  section  then  containing  no  provisos, 
and  ending  with  the  words  "subsequent  to  the  transfer." 

2.  Amended  by  Stats.  1895,  p.  47,  adding  the  first  proviso,  which 
read  as  at  present,  except  that  it  did  not  have  the  words  "and  acknowl- 
edged" after  "and  certified." 

3.  Amended  by  Stats.  1903,  p.  Ill,  adding  three  provisos  at  end  of 
section. 

§3441.     Creditor's  right  must  be  judicially  ascertained.    A 

creditor  can  avoid  tlie  act  or  obligation  of  his  debtor  for  fraud 
only  where  the  fraud  obstructs  the  enforcement,  by  legal  pro- 
cess, of  his  right  to  take  the  property  affected  by  the  transfer 
or  obligation. 

Legislation  §  3441.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1922. 

§3442.  Question  of  fraud,  how^  determined.  In  all  cases 
arising  under  section  twelve  hundred  and  twenty-seven,  or 
under  the  provisions  of  this  title,  except  as  otherwise  provided 
in  section  thirty-four  hundred  and  forty,  the  question  of 
fraudulent  intent  is  one  of  fact  and  not  of  law ;  nor  can  any 
transfer  or  charge  be  adjudged  fraudulent  solely  on  the 
ground  that  it  was  not  made  for  a  valuable  consideration; 
provided,  however,  that  any  transfer  or  encumbrance  of  prop- 
erty made  or  given  voluntarily,  or  without  a  valuable  con- 
sideration, by  a  party  while  insolvent  or  in  contemplation  of 
insolvency,  shall  be  fraudulent,  and  void  as  to  existing  cred- 
itors.     [Amendment  approved  1895;  Stats.  1895,  p.  154.] 

Voluntary  conveyance:  See  ante,  §  1040. 

Actual  fraud  a  question  of  fact:   See  ante,  §  1574. 

Legislation  §  3442.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1923. 

2.  Amended  by  Stats.  1895,  p.  154,  adding  the  proviso. 

3.  Amendment  by  Stats.  1901,  p.  422;  unconstitutional.  See  note, 
§  4,  ante. 


817  ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS.  §  3449 

TITLE  III. 

Assignments  for  the  Benefit  of  Creditors. 

§  3449.  When  debtor  may  execute  assignment. 

§  3450.  Insolvency,  what. 

§  3451.  Certain  transfers  not  affected. 

§  3452.  What  debts  may  be  secured. 

§  3453.  What  preferences   may   be   given.     [Repealed.] 

§  3454.  Preference  must   be  absolute.     [Repealed.] 

§  3455.  Certain  rights  not  affected  by  preferences  in  assignment.  [Re- 
pealed.] 

§  3456.  Joint  and  separate  debts.     [Repealed.] 

§  3457.  Assignment,  when  void. 

§  3458.  Assignment  to  be  in  writing. 

§  3459.  Compliance  with  provisions  of  last  section  necessary  to  validity 
of  assignment. 

§  3460.  Assignee  takes,  subject  to  rights  of  third  parties. 

§  3461.  inventory  required. 

§  3462.  Affidavit  of  assignor  to  be  filed  with  inventory. 

§  3463.  Recording  assignment  and  filing  inventory. 

§  3464.  Same. 

§  3465.  Assignment,  when  void. 

§  3466.  Assignment  of  real  property. 

§  3467.  Bond  of  assignees. 

§  3468.  Conditions  of  disposal  and  conversion. 

§  3469.  Accounting  of  assignee. 

§  3470.  Property  exempt. 

§  3471.  Commissions   of   assignees. 

§  3472.  Assignees  protected  for  acts  done  in  good  faith. 

§  3473.  Assent  of  creditor  necessary  to  modification  of  assignment. 

§  3449.  When  debtor  may  execute  assignment.  An  insol- 
vent debtor  may  in  good  faith  execute  an  assignment  of  prop- 
erty in  trust  for  the  satisfaction  of  his  creditors,  in  conform- 
ity to  the  provisions  of  this  chapter;  subject,  however,  to  the 
provisions  of  this  code  relative  to  trusts  and  fraudulent  trans- 
fers, and  to  the  restrictions  imposed  by  law  upon  assignments 
by  special  partnerships,  by  corporations,  or  by  other  specific 
classes  or  persons.  Every  such  assignment  shall  contain  a 
list  of  the  names  of  the  creditors  of  the  assignor,  and  their 
places  of  residence  and  amounts  of  their  respective  demands, 
and  the  amounts  and  nature  of  any  security  therefor,  and 
shall,  subject  to  the  other  provisions  of  this  section,  be  made 
to  the  sheriff  of  the  county,  or  city  and  county,  wherein  the 
assignor  resides,  if  the  assignor  resides  within  this  state ;  or 
in  case  the  assignor  resides  out  of  this  state,  then  to  the  sheriff 
of  the  county,  or  city  and  county,  wherein  the  property  as- 
signed, or  some  of  it,  is  situated ;  but  when  the  assignor  resides 
out  of  the  state,  an  assignment  made  as  herein  provided  may, 
by  its  terms,  transfer  any  property  of  the  assignor  in  this  state. 

Civ.  Code — 52 


§  3449  CIVIL  CODE.  818 

The  sheriff  shall  fortliAvith  take  possession  of  all  the  property 
so  assigned  to  him,  and  keep  the  same  till  delivered  by  him,  as 
hereinafter  provided.  When  the  assignment  has  been  made,  as 
herein  provided,  the  sheriff  shall  immediately,  by  mail,  notify 
the  creditors  named  in  the  assignment,  at  their  places  of  resi- 
dence as  given  therein,  to  meet  at  his  oifice  on  a  day  and  hour 
to  be  appointed  by  him,  of  not  less  than  eight  or  more  than  ten 
days  from  the  date  of  the  delivery  of  the  assignment  to  him, 
for  the  purpose  of  electing  one  or  more  assignees,  as  they  may 
determine,  in  the  place  and  stead  of  the  said  sheriff  in  the 
premises,  and  shall  also  publish  a  notice  of  such  meeting,  and 
the  purpose  thereof,  at  least  once  before  such  meeting,  in  some 
newspaper  published  in  his  county,  or  city  and  county.  The 
notice  so  to  be  mailed  shall  also  contain  a  statement  of  the 
amount  of  the  demand  of  the  creditor,  and  the  amount  and 
nature  of  any  security  therefor,  as  set  forth  in  the  assignment ; 
and  if  any  creditor  shall  not  find  the  amount  of  his  claim  to 
be  correctly  so  stated,  he  may  file  with  said  sheriff,  at  or 
before  such  meeting,  a  statement,  under  oath,  of  his  demand, 
and  such  statement  shall,  for  the  purpose  of  voting,  as  herein- 
after provided,  be  accepted  by  said  sheriff  as  correct;  and 
when  no  such  statement  is  filed,  the  statement  of  amount  as 
set  forth  in  the  assignment  shall  be  accepted  by  the  sheriff  as 
correct.  No  creditor  having  a  mortgage  or  pledge  of  real 
or  personal  property  of  the  debtor,  or  lien  thereon,  for  securing 
the  pajanent  of  a  debt  owing  to  him  from  the  debtor,  shall  be 
allowed  to  vote  any  part  of  his  claim  at  such  meeting  of  cred- 
itors, unless  he  shall  have  first  conveyed,  released,  or  de- 
livered up  his  said  security  to  said  sheriff,  for  the  benefit  of  all 
creditors  of  said  assignor.  At  such  meeting  the  sheriff  shall 
preside,  and  a  majority  in  amount  of  demands  present  or 
represented  by  proxy  shall  control  all  questions  and  decisions. 
The  creditors  may  adjourn  such  meeting  from  time  to  time, 
and  may  vote  on  all  questions  either  in  person  or  by  proxy 
signed  and  acknowledged  before  any  officer  authorized  to  take 
acknowledgments,  and  filed  with  the  sheriff.  At  such  a  meet- 
ing, or  any  adjournment  thereof,  the  creditors  may  elect  one 
or  more  assignees  from  their  own  number,  in  the  place  and 
stead  of  the  sheriff,  and  the  person  or  persons  so  elected  shall 
afterwards  be  the  assignee  or  assignees  under  the  provisions 
of  this  title ;  and  the  sheriff,  by  transfer  in  writing,  acknowl- 
edged as  required  by  section  three  thousand  four  hundred 
and  fifty-eight,  shall  at  once  assign  to  such  elected  assignee 
or  assignees,  upon  the  trusts  in  this  title  provided,  all  the  prop- 
erty so  assigned  to  him,  and  deliver  possession  thereof.  All 
recitals  in  such  assignment  by  said  sheriff  of  notices  of  such 


819  ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS.  §  3451 

meeting,  and  the  holding  thereof,  and  of  the  due  election  of 
such  assignee  or  assignees,  shall  be  prima  facie  proof  of  the 
facts  recited.  The  sheriff  shall,  before  the  delivery  of  such 
assignment,  be  paid  the  expenses  incurred  by  him,  and  fees  in 
such  amount  as  would  by  law  be  collectable  if  the  property  as- 
signed had  been  levied  upon  and  safely  kept  under  attachment. 
Thereupon,  and  after  the  record  of  such  last-named  assign- 
ment, as  in  this  title  provided,  such  elected  assignee  or  as- 
signees shall  take,  and  hold,  and  dispose  of  all  such  property 
and  its  proceeds,  upon  the  trusts  and  conditions  and  for  the 
purposes  in  this  title  provided.  [Amendment  approved  1895 ; 
Stats.  1895,  p.  82.] 

Partner  cannot  assign:  See  ante,  §  2430,  subd.  1. 

Legislation  §  3449.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1924),  and  then  read:  "An  insolvent  debtor 
may,  in  good  faith,  execute  an  assignment  of  property  to  one  or  more 
assignees,  in  trust  for  the  satisfaction  of  his  creditors,  in  conformity 
to  the  provisions  of  this  chapter;  subject,  however,  to  the  provisions 
of  this  code  relative  to  trusts  and  to  fraudulent  transfers,  and  to  the 
restrictions  imposed  by  law  upon  assignments  by  special  partnerships, 
by  corporations,  or  by  other  specific  classes  or  persons." 

2.  Amended  by  Stats.  1889,  p.  80,  and  differed  from  the  amendment 
of  1895  (the  present  section),  except  for  the  changes  then  made;  q.  v., 
infra. 

3.  Amended  by  Stats.  1895,  p.  82,  (1)  in  sentence  beginning  "Every 
such  assignment,"  adding,  after  "their  respective  demands,"  the  words 
"and  the  amounts  and  nature  of  any  security  therefor";  (2)  in  sen- 
tence beginning  "The  sheriff  shall,"  adding  "the"  before  "property"; 
(3)  in  sentence  beginning  "The  notice,"  (a)  adding  after  "demand  of 
the  creditor,"  the  words  "and  the  amount  and  nature  of  any  security 
therefor,"  and  (b)  changing  "such  amount"  to  "the  amount  of  his 
claim";  (4)  adding  the  sentence  beginning  "No  creditor  having"  and 
ending  "said  assignor";  (5)  in  sentence  beginning  "At  such,"  adding 
the  article  "a"  after  these  words. 

§  3450.     Insolvency,  what.     A  debtor  is  insolvent,  within  the 
meaning  of  this  title,  when  he  is  unable  to  pay  his  debts  from 
his  own  means,  as  they  become  due. 
Insolvency  defined:  See  ante,  §  3077.  . 

Legislation  §  3450.  Euacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1925. 

§  3451.  Certain  transfers  not  affected.  The  provisions  of 
this  title  do  not  prevent  a  person  residing  in  another  state  or 
country  from  making  there,  in  good  faith,  and  without  intent 
to  evade  the  laws  of  this  state,  a  transfer  of  property  situated 
within  it;  but  such  person  cannot  make  a  general  assignment 
of  property  situated  in  this  state  for  the  satisfaction  of  all 
his  creditors,  except  as  in  this  title  provided;  nor  do  the  pro- 
visions of  this  title  affect  the  power  of  a  person,  although  in- 
solvent, and  whether  residing  within  or  without  this  state,  to 


§  3455  CIVIL  CODE.  820 

transfer  property  in  this  state,  in  good  faith  to  a  particular 
creditor,  or  creditors,  or  to  some  other  person  or  persons  in 
trust  for  such  particular  creditor  or  creditors  for  the  purpose 
of  paying  or  securing  the  whole  or  part  of  a  debt  owing  to 
sucii  creditor  or  creditors,  whether  in  his  or  their  own  right 
or  otherwise.  [Auiendment  approved  1905;  Stats.  19U5, 
p.  622.] 

Legislation  §  3451.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  -N.  Y.  Civ.  Code,  §  1926),  and  tiien  read:  "The  provisions  of  this 
title  do  not  prevent  a  person  residing  in  another  state  or  country  from 
making  there,  in  good  faith  and  without  intent  to  evade  the  laws  of 
this  state,  a  transfer  of  property  situated  within  it;  nor  do  they  affect 
the  power  of  a  person,  although  insolvent  and  within  this  state,  to 
transfer  property  to  a  particular  creditor  for  the  purpose  of  paying 
or  securing  the  whole  or  a  part  of  a  debt  owing  to  such  creditor, 
whether  in  his  own  right  or  otherwise." 

2.  Amended  by  Wtats.  1889,  p.  82,  the  section  then  reading  the  same 
as  the  amendment  of  191)5,  down  to  the  words  "in  good  faith,"  in  final 
clause;  thereafter  reading,  "to  a  particular  creditor  for  the  purpose  of 
paying  or  securing  the  whole  or  a  part  of  a  debt  owing  to  such  credi- 
tor, wnether  in  his  own  right  or  otherwise." 

3.  Amendment  by  Stats.  1901,  p.  i22;  unconstitutional.  See  note, 
§  4,  ante. 

4.  Amended  by  Stats.  1905,  p.  622;  the  code  commissioner  saying, 
"The  change  consists  in  the  insertion  of  the  words  'or  creditors  or  to 
some  other  person  or  persons  in  trust  for  such  particular  creditor  or 
creditors'  after  'creditor.'  [Cf.  the  latter  part  of  amendment  of  1SS9, 
quoted  supra.]  The  rule  stated  in  the  section  as  amended  by  the  addi- 
tion of  the  clause  above  quoted  is  the  rule  heretofore  enforced  in  this 
state  (Lawrence  v.  JSIeft',  41  Cal.  566;  Hendley  v.  Pfister,  39  Cal.  283; 
Priest  V.  Brown,  lUO  Cal.  626);  but  some  doubt  has  been  cast  upon  the 
subject  by  the  later  case  of  Sabachi  v.  Chase,  1U8  Cal.  81." 

§3452.  What  debts  may  be  secured.  An  assignment  for 
the  benefit  of  creditors  may  provide  for  any  subsisting  liability 
of  the  assignor  which  he  might  lawfully  pay,  whether  absolute 
or  contingent. 

Legislation  §  3452.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1927. 

§  3453.  What  preferences  may  be  given.  [Repealed  1874 ; 
Code  Amdts.  1873-74,  p.  267.] 

Legislation  §  3453.     1.  Enacted   March    21,    1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  267. 

§  3454.     Preference    must    be    absolute.     [Repealed    1874 ; 

Code  Amdts.  1873-74,  p.  267.] 

Legislation  §  3454.     1.  Enacted  March  21,  1872, 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  267. 

§  3455.  Certain  rights  not  affected  by  preferences  in  as- 
signment.     [Repealed  1874;  Code  Amdts.  1873-74,  p.  267.] 


821  ASSIGNMENTS  FOE  BENEFIT  OF  CREDITORS,  §  3458 

Legislation  §  3455.     1.  Enacted  March  21,  1872. 
2.  Bepealed  by  Code  Amdts.  1873-74,  p.  267. 

§  3456.     Joint  and  separate  debts.     [Repealed  1874 ;  Code 

Amdts.  1873-74,  p.  267.] 

Legislation  §  3456.     1.  Enacted  March  21,  1872. 
2.  Repealed  by  Code  Amdts.  1873-74,  p.  267. 

§  3457.  Assig'nment,  when  void.  An  assignment  for  the 
benefit  of  creditors  is  void  against  any  creditor  of  the  assignor 
not  assenting  thereto,  in  the  following  cases : 

First.  If  it  give  a  preference  of  one  debt  or  class  of  debts 
over  another. 

Second.  If  it  tend  to  coerce  any  creditor  to  release  or  com- 
promise his  demand. 

Third.  If  it  proA^de  for  the  payment  of  any  claim  known 
to  the  assignor  to  be  false  or  fraudulent ;  or  for  the  payment  of 
more  upon  any  claim  than  is  known  to  be  justly  due  from  the 
assignor. 

Fourth.  If  it  reserve  any  interest  in  the  assigned  property, 
or  in  any  part  thereof,  to  the  assignor,  or  for  his  benefit,  before 
all  his  existing  debts  are  paid. 

Fifth.  If  it  confer  upon  the  assignee  any  power  which,  if 
exercised,  might  prevent  or  delay  the  immediate  conversion 
of  the  assigned  property  to  the  purposes  of  the  trust. 

Sixth.  If  it  exempt  him  from  liability  for  neglect  of  duty  or 
misconduct.  [Amendment  approved  1874 ;  Code  Amdts.  1873- 
74,  p.  267.] 

Preferences:  See  ante,  §  34.32. 
Preferences  by  special  partnership:  Ante,  §  2496. 

Legislation  §  3457.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1932),  and  then  read:  "An  assignment  for 
the  benefit  of  creditors  is  void  against  any  creditor  of  the  assignor  not 
assenting  thereto,  in  the  following  cases:  1.  If  it  gives  an  unlawful 
preference  of  one  debt  or  class  of  debts  over  another;  2.  If  it  gives  a 
preference  dependent  upon  any  condition  or  contingency,  or  with  any 
power  of  revocation  reserved;  3.  If  it  tends  to  coerce  any  creditor  to 
release  or  compromise  his  demand;  4.  If  it  provides  for  the  payment 
of  any  claim  known  to  the  assignor  to  be  false  or  fraudulent;  or  for 
the  payment  of  more  upon  any  claim  than  is  justly  due  from  the  as- 
signor; 5.  If  it  reserves  any  interest  in  the  assigned  property,  or  in 
any  part  thereof,  to  the  assignor  or  for  his  benefit,  before  all  his  exist- 
ing debts  are  paid;  6.  If  it  confers  upon  the  assignee  any  power  which, 
if  exercised,  might  prevent  or  delay  the  immediate  conversion  of  the 
assigned  property  to  the  purposes  of  the  trust;  7.  If  it  exempts  him 
from  liability  for  neglect  of  duty  or  misconduct;  or,  8.  If  it  violates 
section  3456  of  this  code." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  267. 

§3458.  Assignment  to  be  in  writing'.  An  assignment  for 
the  benefit  of  creditors  must  be  in  writing,  subscribed  by  the 
assignor,  or  by  his  agent  thereto  authorized  in  writing,  and 


§  3461  CIVIL  CODE.  822 

the  transfer  by  the  sheriff  must  also  be  in  writing,  subscribed 
by  the  sheriff  in  his  official  capacity.  Both  such  assignment 
and  such  transfer  must  be  acknowledged,  or  proved  and  cer- 
tified, in  the  mode  prescribed  by  the  chapter  on  recording 
transfers  of  real  property,  and  be  recorded  as  required  by 
sections  thirty-four  hundred  and  sixty-three  and  thirty-four 
hundred  and  sixty-four;  but  recording  in  one  county  con- 
stitutes a  compliance  with  the  folloAving  section.  [Amend- 
ment approved  1889;  Stats.  1889,  p.  82.] 

Legislation  §  3458.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code.  §1933),  and  then  read:  "An  assignment  for 
the  benefit  of  creditors  must  be  in  writing,  subscribed  by  the  as.signor, 
or  by  his  agent  thereto  authorized  by  writing.  It  must  be  acknowl- 
edged, or  proved  and  certified,  in  the  mode  prescribed  by  the  chapter 
on  recording  transfers  of  real  property,  and  recorded  as  required  by 
sections  3463  and  3464;  but  recording  in  one  county  constitutes  a  com- 
pliance with  the  following  section." 

2.  Amended  by  Stats.  1889,  p.  82. 

§  3459.  Compliance  with  provisions  of  last  section  neces- 
sary to  validity  of  assignment.  Unless  the  provisions  of  the 
last  section  are  complied  with,  an  assignment  for  the  benefit 
of  creditors  is  void  against  every  creditor  of  the  assignor  not 
assenting  thereto. 

Legislation  §  3459.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1934. 

§  3460.     Assignee  takes,  subject  to  rig-hts  of  third  parties. 

An  assignee  for  the  benefit  of  creditors  is  not  to  be  regarded 
as  a  purchaser  for  value,  and  has  no  greater  rights  than  his 
assignor  had,  in  respect  to  things  in  action  transferred  by  the 
assignment. 

Legislation  §  3460.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code.  §  1935. 

§  3461.  Inventory  required.  Within  twenty  days  after  an 
assignment  is  made  for  the  benefit  of  creditors,  the  assignor 
must  make  and  file,  in  the  manner  prescribed  by  section  three 
thousand  four  hundred  and  sixty-three,  a  full  and  true  in- 
ventory, showing : 

1.  All  the  creditors  of  the  assignor ; 

2.  The  place  of  residence  of  each  creditor,  if  known  to  the 
assignor ;  or  if  not  knoAvn,  that  fact  must  be  stated ; 

3.  The  sum  owing  to  each  creditor  and  the  nature  of  each 
debt  or  liability,  Avhether  arising  on  written  security,  account, 
or  otherwise ; 

4.  The  true  consideration  of  the  liability  in  each  case,  and 
the  place  where  it  arose; 


823  ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS.  §  3463 

5.  Every  existing  judgmoiit,  mortgage,  or  other  security  for 
the  payment  of  any  debt  or  liabilit.y  of  the  assignor; 

6.  All  property  of  the  assignor  at  the  date  of  the  assignment, 
Avhich  is  exempt  by  law  from  execution ;  and, 

7.  All  of  the  assignor's  property  at  the  date  of  the  assign- 
ment, both  real  and  personal,  of  every  kind,  not  so  exempt, 
and  the  encumbrances  existing  thereon,  and  all  vouchers  and 
securities  relating-  thereto,  and  the  value  of  such  property 
according  to  the  best  knowledge  of  the  assignor. 

Legislation  §  3461.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1936. 

§  3462.     Affidavit  of  assignor  to  be  filed  with  inventory.     An 

affidavit  must  be  made  by  every  assignor  executing  an  assign- 
ment for  the  benefit  of  creditors,  to  be  annexed  to  and  filed 
with  the  inventory  mentioned  in  the  last  section,  to  the  effect 
that  the  same  is  in  all  respects  just  and  true  according  to  the 
best  of  such  assignor's  knoAvledge  and  belief.  If  the  assignor 
neglects  or  refuses  to  make  and  file  such  inventory  and  affi- 
davit Avithin  said  twenty  days,  the  assignment  shall  not,  for 
that  reason,  be  affected  in  any  way,  but  in  that  event  the 
assignee  or  assignees  elected  by  the  creditors  shall  within 
twenty  days  thereafter  make  and  file  in  the  office  of  the  county 
recorder  where  the  assignment  is  first  recorded,  a  verified  in- 
ventory of  all  assets  received  by  them ;  and  such  assignee  or 
assignees  may  at  any  time,  or  from  time  to  time,  after  the 
transfer  to  them  by  the  sheriff,  by  petition  to  the  superior 
court  of  the  county  or  city  and  county  where  the  assignment 
is  first  recorded,  cause  the  assignor,  by  order  or  citation  to 
appear  before  said  court,  or  a  commissioner  or  referee  to  be 
appointed  by  it,  at  a  time  and  place  within  the  county,  or  city- 
and  county,  to  be  designated  in  the  order  or  citation,  to  be 
examined  touching  the  matters  mentioned  in  section  three 
thousand  four  hundred  and  sixty-one,  and  any  other  matters 
relative  to  the  assignment,  and  to  have  with  him  all  books  of 
account,  vouchers,  and  papers  relating  to  the  assigned  prop- 
erty ;  and  such  court  may  by  its  order  require  the  surrender 
to  such  assignee  or  assignees  of  such  books,  vouchers,  and 
papers,  to  be  by  them  retained  until  their  trust  is  fully  com- 
pleted and  performed.  [Amendment  approved  1889 ;  Stats. 
1889,  p.  82.] 

Legislation  §  3462.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1937),  the  section  then  being  the  first  sen- 
tence of  the  amendment  of  18S9,  and  having  the  word  "person"  instead 
of  "assignor"  in  first  line. 

2.  Amended  by  Stats.  1889,  p.  82. 

§  3163.     Recording'   assignment   and   filing-   inventory.     An 

assignment  for  the  benefit  of  creditors  must  be  recorded,  and 


§  3466  CIVIL  CODE.  824 

the  inventory  required  by  section  three  thousand  four  hun- 
dred and  sixty-one  filed  with  the  county  recorder  of  the  county 
in  which  the  assignor  resided  at  the  date  of  the  assignment; 
or,  if  he  did  not  then  reside  in  this  state,  with  the  recorder  of 
the  county  in  which  his  principal  place  of  business  was  then 
situated ;  or,  if  he  had  not  then  a  residence  or  place  of  busi- 
ness in  this  state,  with  the  recorder  of  the  county  in  which  the 
principal  part  of  the  assigned  property  was  then  situated. 

Legislation  §  3463.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1938. 

§  3464.  Same.  If  an  assignment  for  the  benefit  of  cred- 
itors is  executed  by  more  than  one  assignor,  it  may  be  recorded, 
and  a  copy  of  the  inventory  required  by  section  three  thousand 
four  hundred  and  sixty-one  may  be  filed  with  the  recorder  of 
the  county  in  which  any  of  the  assignors  resided  at  its  date,  or 
in  which  any  of  them,  not  then  residing  in  this  state,  had  then 
a  place  of  business. 

Legislation  §  3464.  Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1939. 

§  3465.  Assignment,  vi^hen  void.  An  assignment  for  the 
benefit  of  creditors  is  void  against  creditors  of  the  assignor 
and  against  purchasers  and  encumbrancers  in  good  faith  and 
for  value  unless  it  is  recorded  as  provided  in  this  title,  and 
unless  either  the  inventory  required  by  section  three  thou- 
sand four  hundred  and  sixty-one,  or  the  inventory  required 
of  the  assignee  or  assignees  by  section  three  thousand  four 
hundred  and  sixty-two  is  filed  in  the  manner  provided  in  this 
title  and  within  the  time  designated.  [Amendment  approved 
1889;  Stats.  1889,  p.  83.] 

Legislation  §  3465.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1940,  modified),  and  then  read:  "An  assign- 
ment for  the  benefit  of  creditors  is  void  against  creditors  of  the  as- 
signor, and  against  i:iurchasers  and  encumbrancers  in  good  faith  and 
for  value,  unless  it  is  recorded,  and  unless  the  inventory  required  by 
section  3461  is  not  filed,  pursuant  to  section  3463,  within  twenty  days 
after  the  date  of  the  assignment." 

2.  Amended  by  Code  Amdts.  1877-78,  p.  90,  omitting  the  word  "not"' 
before  "filed." 

3.  Amended  by  Stats.  1889,  p.  83. 

§  3466.     Assignment  of  real  property.     Where  an   assign- 
ment for  the  benefit  of  creditors  embraces  real  property,  it  is 
subject  to  the  provisions  of  article  four  of  the  chapter  on 
recording  transfers,  as  well  as  to  those  of  this  title. 
Recording  transfers:   Ante,  §§  1158-1218. 

Legislation  §  3466.  Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  1941. 


825  ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS.  §  3468 

§  3467.  Bond  of  assignees.  No  bond  shall  be  given  by  the 
sheriff,  but  he  shall  be  liable  on  his  official  bond  for  the  care 
and  custody  of  the  property  while  in  his  possession.  Within 
forty  days  after  date  of  the  transfer  by  the  sheriff,  the  assignee 
must  enter  into  a  bond  to  the  people  of  this  state  in  such 
amount  as  may  be  fixed  by  a  judge  of  the  superior  court  of  the 
county,  or  city  and  county,  in  which  an  inventory  in  accord- 
ance with  the  provisions  of  this  title  is  filed  with  sufficient 
sureties  to  be  approved  by  such  judge,  and  conditioned  for  the 
faithful  discharge  of  the  trust  and  the  due  accounting  for  all 
moneys  received  by  the  assignee,  which  bond  must  be  filed  in  the 
same  office  with  the  inventory ;  and  any  assignee  failing  to  comply 
with  the  provisions  of  this  section  may  be  removed  by  the 
above-named  superior  court  on  petition  of  the  assignor  or  any 
creditor,  and  his  successor  appointed  by  such  court.  [Amend- 
ment approved  1889;  Stats.  1889,  p.  83.] 

Legislation  §  3467.  1,  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1942),  and  then  read:  "Within  thirty  days 
after  the  date  of  an  assignment  for  the  benefit  of  creditors,  the  as- 
signee must  enter  into  a  bond  to  the  people  of  this  state,  in  such 
amount  as  may  be  fixed  by  the  county  judge  of  the  county  in  which 
the  original  inventory  is  filed,  with  sufficient  sureties,  to  be  approved 
by  such  judge,  and  conditioned  for  the  faithful  discharge  of  the  trust, 
and  the  due  accounting  for  all  moneys  received  by  the  assignee,  which 
bond  must  be  filed  in  the  same  office  with  the  original  inventory." 

2.  Amended  by  Stats.  lB83,  p.  2,  changing  "the  county  judge"  to  "a 
judge  of  a  superior  court." 

3.  Amended  by  Stats.  1889,  p.  S3. 

§  3468.  Conditions  of  disposal  and  conversion.  Until  a 
verified  inventory  has  been  made  and  filed,  either  by  the  as- 
signor or  assignee,  as  required  by  the  provisions  of  this  title, 
and  the  assignee  has  given  the  bond  required  by  the  last  sec- 
tion, such  assignee  has  no  authority  to  dispose  of  the  property 
of  the  estate,  or  any  part  of  it  (except  in  the  case  of  perishable 
property,  which  in  his  discretion  he  may  dispose  of  at  any 
time,  and  receive  the  proceeds  of  sale  thereof)  ;  nor  has  he 
power  to  convert  the  property,  or  the  proceeds  of  any  sale  of 
perishable  property,  to  the  purposes  of  the  trust.  Within  ten 
days  after  the  filing  of  his  bond,  the  assignee  must  commence 
the  publication  (and  such  "publication  shall  continue  at  least 
once  a  week  for  four  weeks),  in  some  newspaper  published  in 
the  county,  or  city  and  county,  where  the  inventory  is  filed,  of 
a  notice  to  creditors  of  the  assignor,  stating  the  fact  and  date 
of  the  assignment,  and  requiring  all  persons  having  claims 
against  the  assignor  to  exhibit  them,  with  the  necessary 
vouchers,  and  verified  by  the  oath  of  the  creditor,  to  the  as- 
signee, at  his  place  of  residence  or  busi-ness,  to  be  specified  in 
the  notice;  and  he  shall  also,  within  ten  days  after  the  first 


§  3468  CIVIL  CODE.  826 

publication  of  said  notice,  mail  a  copy  of  sucli  notice  to  each 
creditor  whose  name  is  given  in  the  instrument  of  assignment, 
at  the  address  therein  given.  After  such  notice  is  given,  a 
copy  thereof,  Avith  affidavit  of  due  publication  and  mailing, 
must  be  filed  with  the  county  recorder  with  whom  the  in- 
ventory has  been  filed,  which  affidavit  shall  be  prima  facie 
evidence  of  the  facts  stated  therein.  At  any  time,  or  from 
time  to  time,  after  the  expiration  of  thirty  days  from  the  first 
publication  of  said  notice  (provided,  the  same  shall  also  have 
been  mailed  as  in  this  section  provided),  the  assignee  may, 
in  his  discretion,  declare  and  pay  dividends  to  the  creditors 
whose  claims  have  been  presented  and  allowed.  No  dividend 
already  declared  shall  be  disturbed  by  reason  of  claims  being 
subsequently  presented  and  allowed ;  but  the  creditor  present- 
ing such  claim  shall  be  entitled  to  a  dividend  equal  to  the  per 
cent  already  declared  and  paid,  before  any  further  dividend 
is  made ;  provided,  however,  that  there  be  assets  sufficient  for 
that  purpose ;  and  provided,  that  the  failure  to  present  such 
claim  shall  not  have  resulted  from  his  own  neglect,  and  he 
shall  attach  to  such  claim  a  statement,  under  oath,  showing 
fully  why  the  same  was  not  before  presented.  AVhen  a  cred- 
itor has  a  mortgage  or  pledge  of  real  or  personal  property  of 
the  debtor,  or  a  lien  thereon,  for  securing  the  payment  of  a 
debt  owing  to  him  from  the  debtor,  and  shall  not  have  con- 
veyed, released,  or  delivered  up  such  security  to  the  sheriff, 
as  provided  for  by  section  three  thousand  four  hundred  and 
forty-nine  of  this  code,  he  shall  be  admitted  as  a  creditor  only 
for  the  balance  of  the  debt  after  deducting  the  value  of  such 
mortgage,  pledge,  or  lien,  to  be  ascertained  by  agreement  be- 
tween him  and  the  assignee,  or  by  a  sale  thereof,  to  be  made 
in  such  manner  as  the  superior  court  of  the  county  in  which 
the  assignment  is  made  shall  direct;  or  the  creditor  may  re- 
lease or  convey  his  claim  to  the  assignee  upon  such  property, 
and  be  admitted  to  prove  his  whole  debt.  If  the  value  of  the 
propert}^  exceeds  the  sum  for  which  it  is  so  held  as  security, 
the  assignee  may  release  to  the  creditor  the  debtor's  right  of 
redemption  thereon  on  receiving  such  excess ;  or  he  may  sell 
the  property,  subject  to  the  claim  of  the  creditor  thereon;  and 
in  either  case  the  assignee  and  creditor,  respectively,  shall 
execute  all  deeds  and  writings  necessary  or  proper  to  con- 
summate the  transaction.  If  the  property  is  not  sold  or 
released,  and  delivered  up,  the  creditor  shall  not  be  allowed 
to  prove  any  part  of  his  debt.  [Amendment  approved  1895 ; 
Stats.  1895,  p.  84.] 

Legislation  §  3468.     r.    Enacted    March    21,    1872    (based    on   Meld's 
Draft,  N.  Y.  Civ.  Code,  §  1943),  and  then  read:   "Until  the  inveutoiN 


827  ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS.  §  3472 

and  affidavit  required  by  sections  3461  and  3462  have  been  made  and 
filed,  and  the  assignee  has  given  a  bond  as  required  by  the  last  sec- 
tion, the  assignee  for  the  benefit  of  creditors  has  no  authority  to  dis- 
pose of  the  estate  or  convert  it  to  the  purposes  of  the  trust." 

2.  Amended  by  Stats.  1889,  p.  S3,  and  then  read  the  same  as  the 
amendment  of  1895  (the  present  section)  down  to  the  sentence  begin- 
ning "When  a  creditor  has  a  mortgage." 

3.  Amended  by  Stats.  1895,  p.  84,  adding  the  last  three  sentences. 

§  3469.  Accounting'  of  assignee.  After  six  months  from 
the  date  of  an  assignment  for  tlie  benefit  of  creditors,  the  as- 
signee may  be  required,  on  the  petition  of  any  creditor,  to 
account  before  the  superior  court  of  the  county  where  the 
accompanying  inventory  was  filed  in  the  manner  prescribed  by 
the  insolvent  laws  of  this  state.  [Amendment  approved  1883 ; 
Stats.  1883,  p.  3.] 

Legislation  §  3469.  1.  Enacted  March  21,  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1944. 

2.  Amended  by  Stats.  1883,  p.  3,  substituting  "superior  court"  for 
"county  judge." 

§  3470.  Property  exempt.  Property  exempt  from  execu- 
tion, and  insurance  upon  the  life  of  the  assignor,  do  not  pass  to 
the  assignee  by  a  general  assignment  for  the  benefit  of  cred- 
itors, unless  the  instrument  specially  mentions  them,  and  de- 
clares an  intention  that  they  should  pass  thereby. 

Legislation  §  3470.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1945. 

§  3471.  Commissions  of  assignees.  The  elected  assignee  or 
assignees  for  the  benefit  of  creditors  shall  be  entitled  to  the 
same  commissions  on  assignments  heretofore  and  hereafter 
made  as  are  allowed  by  law  to  the  assignees  in  insolvency,  and 
the  assignment  cannot  grant  more.  Such  assignee  or  assignees 
shall  also  be  entitled  to  all  necessary  expenses  in  the  manage- 
ment of  their  trust.  [Amendment  approved  1889;  Stats.  1889, 
p.  84.] 

Legislation  §  3471.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1946),  and  then  read:  "In  the  absence  of  any 
provision  in  the  assignment  to  the  contrary,  an  assignee  for  the  bene- 
fit of  creditors  is  entitled  to  the  same  commissions  as  are  allowed  by 
law  to  executors  and  guardians;  but  the  assignment  cannot  grant  more, 
and  may  restrict  the  commissions  to  a  less  amount,  or  deny  them 
altogether." 

2.  Amended  by  Stats.  1889,  p.  84. 

§  3472.     Assignees  protected  for  acts  done  in  good  faith. 

An  assignee  for  the  benefit  of  ci'oditors  is  not  to  be  held  liable 
for  his  acts,  done  in  good  faith,  in  the  execution  of  the  trust, 
merely  for  the  reason  that  the  assignment  is  afterward  ad- 
judged void. 


§  3473  CIVIL  CODE.  '    828 

Legislation  §  3472.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1947. 

§  3473.  Assent  of  creditor  necessary  to  modification  of  as- 
signment. An  assignment  for  the  benefit  of  creditors  "which 
has  been  executed  and  recorded  so  as  to  transfer  the  property 
to  the  sheriff,  or  a  transfer  by  the  sheriff  to  the  elected  assignee 
or  assignees  which  has  been  executed  and  recorded,  cannot 
afterwards  be  modified  or  canceled  by  the  parties  without  the 
consent  of  the  assignor  and  of  every  creditor  affected  thereby. 
[Amendment  approved  1889;  Stats.  1889,  p.  84.] 

Legislation  §  3473.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1948),  and  then  read:  "An  assignment  for 
the  benefit  of  creditors,  which  has  been  executed  and  recorded  so  as 
to  transfer  the  property  to  the  assignee,  cannot  afterwards  be  canceled 
or  modified  by  the  parties  thereto,  without  the  consent  of  every  credi- 
tor affected  thereby." 

2.  Amended  by  Stats.  1889,  p.  84. 


829  NUISANCE.      GENERAL   PRINCIPLES.  §  3480 

PART  III. 

NUISANCE. 

Title  I.     General  Principles.     §§  3479-3484. 
II.     Public  Nuisances.     §§  3490-3495. 
III.     Private  Nuisances.    §§  3501-3503. 

TITLE  I. 
General  Principles. 

§  3479.  Nuisance,  what. 

§  3480.  Public  nuisance. 

§  3481.  Private  nuisance. 

§  3482.  What  is  not  deemed  a  nuisance. 

§  3483.  Successive  owners. 

§  3484.  Abatement  does  not  preclude  action. 

§  3479.  Nuisance,  what.  Anything  which  is  injurious  to 
health,  or  is  indecent  or  offensive  to  the  senses,  or  an  obstruc- 
tion to  the  free  use  of  property,  so  as  to  interfere  with  the  com- 
fortable enjoyment  of  life  or  property,  or  unlawfully  obstructs 
the  free  passage  or  use,  in  the  customary  manner,  of  any 
navigable  lake,  or  river,  bay,  stream,  canal,  or  basin,  or  any 
public  park,  square,  street,  or  highway,  is  a  nuisance. 
[Amendment  approved  1874;  Code  Amdts.  1873-74,  p.  268.] 

Nuisances,  what  are,  and  remedies  for:  See  Code  Civ.  Proc,  §731; 
Pen.  Code,  §§  370,  371,  372. 

Artesian  well,  not  capped  so  as  to  prevent  waste,  is:  See  act  of 

March   9,    1878    (Stats.    1877-78,   p.    195);    also    act    of   March   6,   1907 
(Stats.    1907,  p.  122). 

Legislation  §  3479.  1.  Enacted  March  21,  1872  (based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1949),  and  then  read:  "A  nuisance  consists 
in  unlawfully  doing  an  act,  or  omitting  to  perforjn  a  duty,  which  act 
or  omission  either:  1.  Annoys,  injures,  or  endangers  the  comfort,  re- 
pose, health,  or  safety  of  others;  or,  2.  Offends  decency;  or,  3.  Unlaw- 
fully interferes  with,  obstructs,  or  tends  to  obstruct,  or  renders  dan- 
gerous for  passage,  any  lake,  or  navigable  river,  bay,  stream,  canal, 
or  basin,  or  any  public  park,  square,  street,  or  highway;  or,  4.  In  any 
way  renders  other  persons  insecure  in  life,  or  in  the  use  of  property." 

2.  Amended  by  Code  Amdts.  1873-74,  p.  268. 

3.  Amendment  by  Stats.  1901,  p.  423;  unconstitutional.  See  note, 
§  4,  ante. 

§  3480.  Public  nuisance.  A  public  nuisance  is  one  which 
affects  at  the  same  time  an  entire  community  or  neighborhood, 
or  any  considerable  number  of  persons,  although  the  extent  of 


§  34:90  CIVIL  CODE.  830 

the  annoyance  or  damage  inflicted  upon  individuals  may  be 
unequal.  [Amendment  approved  1874;  Code  Amdts.  1873-74, 
p.  268.] 

AlDating  public  nuisance:  Post,  §§  3494,  3495. 
Public  nuisance  not  legalized  by  lapse  of  time:  Post,  §  3490. 
District  attorney  may  abate  public  nuisance:  See  Pol.  Code,  §  4156. 
Legislation  §  3480.     1.    Enacted    March    21,   1872    (based    on   Field's 
Draft,  N.  Y.  Civ.  Code,  §  1950),  and  then  read:  "A  public  nuisance  is 
one  which  affects  equally  the  rights  of  an  entire  community  or  neigh- 
borhood, although  the  extent  of  the  damage  may  be  unequal." 
2.  Amended  by  Code  Amdts.  1873-74,  p.  268. " 

§  3481.  Private  nuisance.  Every  nuisance  not  included  in 
the  definition  of  the  last  section  is  private. 

Legislation  §  3481.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1951. 

§  3482.  What  is  not  deemed  a  nuisance.  Nothing  which  is 
done  or  maintained  under  the  express  authority  of  a  statute 
can  be  deemed  a  nuisance. 

Legislation  §  3482.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1952. 

§  3483.  Successive  ow^ners.  Every  successive  owner  of 
property  who  neglects  to  abate  a  continuing  nuisance  upon,  or 
in  the  use  of,  such  property,  created  by  a  former  OAvner,  is 
liable  therefor  in  the  same  manner  as  the  one  who  first 
created  it. 

Nuisances,  what  are,  and  actions  for:   See  Code  Civ.  Proc  §  731. 
Legislation  §  3483.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1953. 

§  3484.     Abatement  does  not  preclude  action.     The  abate- 
ment of  a  iniisance  does  not  prejudice  the  right  of  any  person 
to  recover  damages  for  its  past  existence. 
Nuisance:  Pen.  Code,  §§  370-374. 

Legislation  §  3484.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1954. 

TITLE  II. 
Public  Nuisances. 

§  3490.  Lapse  of  time  does  not  legalize. 

§  3491.  Remedies  agninst  public  nuisance. 

§  3492.  Remedy  regulated,  how. 

§  3493.  Remedies  for  public  nuisance. 

§  3494.  How  abated. 

§  3495.  Same. 

§  3490.  Lapse  of  time  does  not  legalize.  No  lapse  of  time 
can  legalize  a  public  nuisance,  amounting  to  an  actual  obstruc- 
tion  of  public  right. 


831  PUBLIC    NUISANCES.  §  3495 

Public  nuisance,  defined:   See  ante,  §  3480. 

Legislation  §  3490.  Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1955. 

§  3491.  Remedies  against  public  nuisance.  The  remedies 
against  a  public  nuisance  are : 

1.  Indictment  or  information ;  "         : 

2.  A  civil  action ;   or, 

3.  Abatement.  [Amendment  approved  1880 ;  Code  Amdts. 
1880,  p.  1.] 

Liability  for  maintaining  or  permitting  a  public  nuisance:  See  Pen. 
Code,  §  373a. 

Power  of  board  of  health  to  abate,  in  San  Francisco:  See  Pol.  Code, 
§  3028. 

Legislation  §  3491.  1.  Enacted  March  21.  1872;  based  on  Field's 
Draft,  N.  Y.  Civ.  Code,  §  1956. 

2.  Amended  by  Code  Amdts.  1880,  p.  1,  in  subd.  1,  adding  "or  in- 
formation." 

§  3492.     Remedy  regulated,   how.     The  remedy  by  indict- 
ment or  information  is  regulated  by  the  Penal  Code.      [Amend- 
ment approved  1880;  Code  Amdts!  1880,  p.  1.] 
Punishment  for  nuisance:  Pen.  Code,  §§  370-374. 
Legislation  §  3492.     1.    Enacted   March    21,    1872;    based    on   Field's 
Draft,  N.  Y.  Civ.  Code,  §  1957. 

2.  Amended  by  Code  Amdts.  1880,  p.  1,  adding  "or  information." 

§  3493.  Remedies  for  public  nuisance.  A  private  person 
may  maintain  an  action  for  a  public  nuisance,  if  it  is  specially 
injurious  to  himself,  but  not  otherwise. 

Legislation  §  3493.     Enacted  March  21,  1872;  based  on  Field's  Draft. 

N.  Y.  Civ.  Code,  §  1958. 

§  3494.  How  abated.  A  public  nuisance  may  be  abated  by 
any  pul)]ic  body  or  ofticer  authorized  thereto  by  law. 

District  attorney  may  abate  public  nuisance:  See  Pol.  Code,  §  4156. 
Legislation  §  3494.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1959. 

§  3495.  Same,  Any  person  may  abate  a  public  nuisance 
which  is  specially  injurious  to  him  by  removing,  or,  if  neces- 
sary, destroying  the  thing  which  constitutes  the  same,  without 
committing  a  breach  of  the  peace,  or  doing  unnecessary  injury. 
Legislation  §  3495.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

]Sr.  Y.  Civ.  Code,  §  1960. 


§  3503  civjL  CODE.  832 

TITLE  III. 
Private  Nuisances. 

§  3501.     Eemedies  for  private  nuisance. 
§  3502.     Abatement,  when  allowed. 
§  3503.     When  notice  is  required. 

§  3501.     Remedies    for    private    nuisance.     The     remedies 

against  a  private  nuisance  are : 

1.  A  civil  action;  or, 

2.  Abatement. 

Legislation  §  3501.     Enacted  March  21.  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1961. 

§  3502,     Abatement,  when  allowed.     A  person  injured  by  a 

private  nuisance  may  abate  it  by  removing,  or,  if  necessary, 

destroying  the  thing  which  constitutes  the  nuisance,  without 

committing  a  breach  of  the  peace,  or  doing  unnecessary  injury. 

District  attorney  may  abate  public  nuisance:  See  Pol.  Code,  §  4156. 

Legislation  §  3502.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1962. 

§  3503.  When  notice  is  required.  Where  a  private  nuisance 
results  from  a  mere  omission  of  the  wrong-doer,  and  cannot  be 
abated  without  entering  upon  his  land,  reasonable  notice  must 
be  given  to  him  before  entering  to  abate  it. 

Legislation  §  3503.     1.    Enacted    March    21,    1872;    based    on    Field's 
Draft,  N.  Y.  Civ.  Code,  §  1963. 

2.  Amendment  by   Stats.   1901,   p.   423;   unconstitutional.     See   note, 
■  §  4,  ante. 


833  MAXIMS  OF  JURISPRUDENCE.  §  3517 

PART  IV. 
MAXIMS  OF  •JURISPRUDENCE. 

§3509.     The  maxims  of  jurisprudence  hereinafter  set  forth 

are  intended  not  to  qualify  any  of  the  foregoing  provisions  of 

this  code,  but  to  aid  in  their  just  application. 

Legislation  §  3509.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1964. 

§  3510.  When  the  reason  of  a  rule  ceases,  so  should  the  rule 
itself. 

Legislation  §  3510.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1965. 

§3511.  Where  the  reason  is  the  same,  the  rule  should  he 
the  same. 

Legislation  §  3511.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1966. 

§  3512.  One  must  not  change  his  purpose  to  the  injury  of 
another. 

Legislation  §  3512.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1967. 

§3513.  Anv  one  may  wai^^e  the  advantfisre  of  a  law  in- 
tended solely  for  his  benefit.  But  a  law  established  for  a  pub- 
lic reason  cannot  be  contravened  by  a  private  agreement. 

Legislation  §  3513.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1968. 

§  3514.  One  must  so  use  his  own  rights  as  not  to  infringe 
upon  the  rights  of  another. 

Legislation  §  3514.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1969. 

§3515.     He  Avho  consents  to  an  act  is  not  wronged  by  it. 

Legislation  §  3515.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1970. 

§  3516.  Acquiescence  in  error  takes  away  the  right  of  ob- 
jecting to  it. 

Legislation  §  3516.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1971. 

§3517.     No  one  can  take  advantage  of  his  own  wrong. 

Legislation  §  3517.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1972, 
Civ,  Code — 53 


3528 


CIVIL   CODE.  83-i 


§  3518.     He  who  has  fraudulently  dispossessed  himself  of  a 

thing  may  be  treated  as  if  he  still  had  possession. 

Legislation  §  3518.     Enacted  March  21,  1872;  based  on  Field's  Draft 
N.  Y.  Civ.  Code,  §  1973. 

§  3519.     He  who  can  and  does  not  forbid  that  Avhich  is  done 
on  his  behalf,  is  deemed  to  have  bidden  it. 


N, 


Legislation  §  3519.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
.  Y.  Civ.  Code,  §  1974. 


§  3520.     No  one  should  suffer  by  the  act  of  another. 

Legislation  §  3520.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1975. 

§  3521.     He  who  takes  the  benefit  must  bear  the  burden. 

One  assumes  obligations  by  accepting  benefits:  See  ante,  §  1589. 

Legislation  §  3521.     Enacted  March  21,  1872;  based  on  Field's  Draft,     S 
N.  Y.  Civ.  Code,  §  1976. 

§  3522.     One  who  grants  a  thing  is  presumed  to  grant  also 
whatever  is  essential  to  its  use. 

Legislation  §  3522.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1977. 

§  3523.     For  every  wrong  there  is  a  remedy. 

Legislation  §  3523.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1978.  ^ 

§  3524.     Between   those   who   are   equally   in   the   right,    or 
equally  in  the  wrong,  the  law  does  not  interpose. 

Legislation  §  3524.     Enacted  March  21,  1872;  based  on  Field's  Draft,      I 
N.  Y.  Civ.  Code,  §  1979.  1 

§  3525.     Between  rights  otherwise  equal,  the  earliest  is  pre- 
ferred. 

Legislation  §  3525.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  19S0. 

§  3526.     No  man  is  responsible  for  tliat  which  no  man  can 
control. 

Legislation  §  3526.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1981. 

§  3527.     The  law  helps  the  vigilant,  before  those  who  sleep 
on  their  rights. 

Legislation  §  3527.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1982. 

§  3528.     The  law  respects  form  less  than  substance. 

Legislation  §  3528.     Enacted  March  21,  1872;  based  on  Field's  Draft^ 
N.  Y.  Civ.  Code,  §  1983. 


835  MAXIMS  OF  JURISPRUDENCE.  §  3540 

§  3529.  That  which  ought  to  have  been  done  is  to  be  re- 
garded as  done,  in  favor  of  him  to  whom,  and  against  him 
from  whom,  performance  is  due. 

Legislation  §  3529.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1984. 

§  3530.  That  which  does  not  appear  to  exist  is  to  be  re- 
garded as  if  it  did  not  exist. 

Legislation  §  3530.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1985. 

§  3531.     The  law  never  requires  impossibilities. 

Legislation  §  3531.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1986. 

§  3532.     The  law  neither  does  nor  requires  idle  acts. 

Legislation  §  3532.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1987. 

§  3533.     The  law  disregards  trifles. 

Legislation  §  3533.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1988. 

§  3534.  Particular  expressions  qualify  those  which  are  gen- 
eral. 

Legislation  §  3534.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1989. 

§  3535.     Contemporaneous  exposition  is  in  general  the  best. 
Legislation  §  3535.     Enacted  March  21,  1872;  b&sed  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1990. 

§  3536.     The  greater  contains  the  less. 

Legislation  §  3536.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1991. 

§  3537.     Superfluity  does  not  vitiate. 

Legislation  §  3537.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1992. 

§  3538.     That  is  certain  which  can  be  made  certain. 

Legislation  §  3538.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1993. 

§  3539.     Time  does  not  confirm  a  void  act. 

Legislation  §  3539.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
X.  Y.  Civ.  Code,  §  1994. 

§  3540.  The  incident  follows  the  principal,  and  not  the 
prineipnl  tlie  incident. 

Appurtenances:  See  ante,  §  476. 
What  passes:  See  ante,  §§  1084,  1104. 

Legislation  §  3540.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1995. 


§  3543  CIVIL  CODE.  836 

§  3541.  An  interpretation  which  gives  effect  is  preferred  to 
one  Avhich  makes  void. 

Legislation  §  3541.,     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1996. 

§  3542.     Interpretation  must  be  reasonable. 

Legislation  §  3542.     Enacted  March  21,  1872;  based  on  Field's  Draft, 
N.  Y.  Civ.  Code,  §  1997. 

§  3543.  Where  one  of  two  innocent  persons  must  suffer  by 
the  act  of  a  third,  he,  by  whose  negligence  it  happened,  must 
be  the  sufferer. 

Legislation  §  3543.     Enacted  March  21,  1872;  based  on  Field's  Draft, 

N.  Y.  Civ.  Code,  §  1998. 

Approved  March  21,  1872. 

NEWTON  BOOTH,  Governor. 


APPENDIX. 

(837) 


ACKNOWLEDGMENTS.  839 

APPENDIX.      * 
ACKNOWLEDGMENTS. 

An  Act  to  legalize  certain  acknowledgments. 

[Approved  March  2,  1891;  Stats.  1891,  p.  20.     Superseded  by  Stats.  1897, 
p.  29,    to    the   same    effect.] 

These  acts  validated  acknowledgments  taken  before  the  years  1891 
and  1897,  respectively. 

Defective  acknowledgments.  See  ante,  §  1207,  curing  defective  ac- 
knowledgments executed  before  January  1,  1913. 

An  Act  to  legalize  acknowledgments  of  certificates  in  writing 
required  hy  section  two  of  an  act  entitled  "An  Act  to  pro- 
vide for  the  formation  of  chambers  of  commerce,  hoards  of 
trade,  meclianic  institutes,  and  other  kindred  protective  as- 
sociations," approved  March  3],  1866,  heretofore  made  or 
taken,  and  to  legalize  all  certificates  heretofore  made,  signed, 
and  acknowledged,  and  filed  under  section  two  of  said  act. 

[Approved  March  10,  188.5;  Stats.  1885,  p.  55.] 

Acknowledgments  legalized. 

Section.  1.  All  acknoAvledgments  heretofore  made  or  taken 
to  the  certificate  in  writing  required  by  section  two  of  an  act 
entitled  "An  Act  to  provide  for  the  formation  of  chambers 
of  commerce,  boards  of  trade,  mechanic  institutes,  and  other 
kindred  protective  associations,"  approved  March  thirty-first, 
eighteen  hundred  and  sixty-six,  whether  proven  by  a  Avitness 
or  otherwise,  and  all  certificates  in  writing  heretofore  made, 
signed,  and  acknowledged,  and  filed  under  section  two  of  said 
act,  though  said  certificates  and  acknowledgments  be  defective 
or  irregular,  are  hereby  legalized  and  made  valid. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 


840  APPENDIX. 


ANIMALS. 

An  Act  to  prevent  combinations  to  obstruct  the  sale  of  live-stock 

in  the  state  of  California. 

[Approved  February  27,  1893;  Stats.  1893,  p.  30.] 

§  1.  Combinations  to  prevent  buying  live-stock  prohibited. 

§  2.  Corporation  prohibited. 

§  3.  By-laws  of  corporations. 

§  4.  Trusts,   combinations,   or   conspiracies. 

§  5.  Selling  live-stock  at  anj-  market. 

§  6.  Punishment. 

Combinations  to  prevent  buying*  live-stock  prohibited. 

Section  1.  It  shall  be  unlawful  for  any  two  or  more  per- 
sons, or  corporations,  to  combine  or  agree  together  to  do  any 
act  which  Avill,  in  any  respect,  prevent  any  person  from  buy- 
ing live-stock  at  any  place  in  this  state  from  any  person  hav- 
ing the  same  for  sale,  either  for  himself  or  as  the  represen- 
tative or  agent  of  the  owner  of  the  same. 

Corporation  prohibited. 

Sec.  2.  It  shall  be  unlawful  for  any  corporation  organized 
under  the  laws  of  this  state,  or  any  board  of  directors  or 
trustees,  or  stockholders,  or  agents,  or  officers  of  any  corpora- 
tion, to  have,  pass,  or  enforce  any  rule,  by-law,  or  regulation, 
whereby  any  officer,  stockholder,  member,  shareholder,  agent, 
servant  thereof,  or  any  other  person  in  any  Avay  interested  in 
or  connected  with  such  corporation,  shall  in  any  respect  be 
prohibited,  prevented,  or  enjoined  from  buying  live-stock 
from  any  other  person  having  such  live-stock  for  sale,  either 
as  owner  thereof,  or  as  the  agent,  representative,  or  assistant 
of  such  owner,  in  any  market  in  this  state  where  live-stock  is 
brought  to  be  sold. 

By-laws  of  corporations. 

Sec.  3.  Every  rule,  regulation,  or  by-law  of  any  corpora- 
tion doing  business  in  this  state,  which  has  for  its  purpose,  or 
which,  directly  or  indirectly,  tends  to  prevent  its  members  or 
stockholders  from  freely  purchasing  live-stock  from  any  per- 
son laAvfully  having  the  same  for  sale,  upon  any  live-stock 
market  of  this  state,  are  hereby  declared  to  be  contrary  to  the 
public  policy  of  this  state,  and  unlawful  and  void;  and  any 
person  or  persons  who  shall  attempt,  directly  or  indirectly, 
to  enforce  any  such  rule,  regulation,  or  by-law,  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  in  addition  to  the  penalties 
prescribed  by  this  act,  shall  be  personally  liable  for  all  dam- 
ages which  may  arise  from  the  enforcement  of  such  rule,  regu- 
lation, or  by-law,  to  any  person  damaged  thereby. 


ANIMALS.  841 

Trusts,  combinations,  or  conspiracies. 

See.  4.  No  trusts,  eom])inatioiis,  or  conspiracies  shall  he 
organized  or  exist  in  this  state,  to  prevent  any  person  or  per- 
sons, or  corporation,  from  selling  live-stock  on  commission, 
for  such  an  amount  of  commission  as  any  person  engaged  in 
the  business  may  see  fit  to  charge ;  and  all  rules,  regulations, 
by-laws,  or  agreements  of  any  corporation,  association,  society, 
or  combination  of  persons,  whereby  any  such  corporation, 
society,  association,  or  combination  of  individuals  are  required 
to  charge  not  less  than  a  given  sum  for  commissions,  or 
whereby  any  person  or  commission  merchant  is,  in  any  respect, 
restrained  from  charging  less  than  a  certain  fixed  sum  for  his 
services  as  such  commission  merchant  in  the  sale  of  live-stock, 
are  hereby  declared  to  be  contrary  to  the  public  policy  of  this 
state,  and  unlawful.  And  any  person  who  shall  enter  into  any 
such  trust,  combination,  or  conspiracy,  or  who  shall  enforce 
or  aid,  abet,  assist,  or  encourage  the  enforcement  of  any  such 
rule,  regulation,  by-law,  or  agreement,  shall  be  liable  to  the 
penalties  prescribed  by  this  act,  and  also  shall  be  personally 
liable  to  any  person,  individual,  society,  or  corporation  who 
may  be  injured  in  his  property  or  business  thereby,  to  the  full 
extent  of  the  injury  resulting  therefrom. 

Selling-  live-stock  at  any  market. 

Sec.  5.  "Whoever  shall,  directly  or  indirectly,  be  a  party  to 
any  combination,  conspiracy,  or  association,  which  attempts, 
directly  or  indirectly,  to  prevent  any  other  person  from  freely 
selling  live-stock  at  any  market  in  this  state  for  such  persons 
as  see  fit  to  engage  his  services,  or  shall  endeavor  to  compel, 
directly  or  indirectly,  any  person  to  charge  not  less  than  a 
fixed  minimum  sum  for  services  in  the  sale  of  live-stock,  or 
shall,  in  any  way.  hinder  or  prevent  another  from  lawfully 
selling  live-stock  for  another,  for  such  rate  of  commission  as 
may  be  agreed  upon  by  the  OAvner  of  the  live-stock  and  the 
commission  merchant,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  suffer  the  penalties  prescribed  by  this  act,  and 
shall  be  personally  liable  to  any  one  aggrieved  thereby,  for  the 
full  amount  of  any  damage  sustained  by  such  person. 

Punishment. 

Sec.  6.  Any  one  who  shall  violate  the  provisions  of  this  act 
shall  be  punished  by  a  fine  in  any  sum  not  less  than  five  hun- 
dred dollars,  and  not  more  than  five  thousand  dollars,  or  by 
imprisonment  in  the  county  jail  not  exceeding  one  year,  or  by 
either  or  both,  in  the  discretion  of  the  court,  and  shall  be 
liable,  in  civil  action,  to  any  person  aggrieved,  in  such  dam- 


842  APPENDIX. 

ages  as  he  or  she  may  have  sustained  by  the  violation  of  this 
act. 

■    Sec.  7.     This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

BANKING. 

An  act  to  defime  and  regidate  tlie  business  of  hanki7ig. 

[1.  Approved  March  1,  1909;  Stats.  1909,  p.  87.  2.  Amended  February  6, 
1911;  Stats.  1911,  p.  7.  3.  Amended  April  21,  1911;  Stats.  1911, 
p.  958.  4.  Amended  April  21,  1911;  Stats.  1911,  p.  1003.  5.  Amended 
April  21,  1911;  Stats.  1911,  p.  1008.  6.  Amended  December  18,  1911; 
Stats.  Ex.  Sess.  1911,  p.  3.  7.  Amended  December  24,  1911;  Stats. 
Ex.  Sess.  1911,  p.  115.  8.  Amended  May  6,  1913;  Stats.  1913,  p.  136. 
9.  Amended  May  31,  1913;  Stats.  1913,  p.  335.  10.  Amended  April 
28,  1915;  Stats.  1915,  p.  297.  11.  Amended  June  3,  1915;  Stats. 
1915,  p.  1104.  12.  Amended  June  3,  1915;  Stats.  1915,  p.  1138. 
13.  Amended  June  3,  1915.     Stats.  1915,  p.  1139.] 

Article  I.  General  Provisions,  §§  1-57. 

II.  Savings  Banks,  §§  60-69. 

III.  Commercial  Banks,  §§  80-85. 

IV.  Trust  Companies,  §§  90-107. 

V.  State  Banking  Department,  §§  120-147. 

ARTICLE  I. 

GENERAL   PROVISIONS. 

§    1.     Title  of  act. 

§    2.     "Bank"   defined.     Monej'   in   escrow.     Classification. 

§    3.     Corporations,  how  formed. 

§    4.     Savings  bank,  meaning  of  term. 

§    5.     Commercial  bank. 

§    6.     Trust  company  defined. 

§    7.     Foreign  corporations,  requirements  of. 

§    8.     Copy  of  articles  of  incorporation.     Affidavit. 

§    9.     Branch  offices.     Savings  lianks  in  schools. 

§  10.  Qualifications  of  bank  directors.  Banks  organized  without  capital 
stock. 

§  11.     Meetings.     Oaths.     Agents  of  foreign  corporations. 

§  12.  Unlawful  naming  or  description  of  business  as  bank  or  trust  com- 
pany.    Exception  in  case  of  building  and  loan  associations. 

§  12a.  Prerequisites  to  advertising  as  banks  not  applicable  to  building 
and  loan  associations. 

§  12b.  Not  applicable  to  life  insurance  companies. 

§  12c.  Foreign  corporations  may  lend  money  in  state. 

§  13.  Express  comjianies,  etc.,  may  issue  letters  of  credit.  License  and 
fee. 

§  14.     Advertising  statements,  to  contain  what. 

§  15.     Unclaimed  deposits  and  proceedings  in  case  of. 

§  16.  Deposits  by  married  women  and  infants.  Joint  deposits.  With- 
drawal of  deposits  of  deceased  persons  over  one  thousand  dollars. 

§  17.     Stockholders,  list  of  to  be  accessible. 

§  18.     Partnership,  list  of.     Repealed. 

§  19.     Capital;   deposit  liabilities.     Of  savings  banks. 


§  2  BANKING.  843 

§  20.  Eeserves  of  commercial  banks.  Eequired  capital  and  surplus  of 
depositary.     Eestoration  of  total  reserves. 

§  21.  Dividends.  Surplus  fund.  Charging  loss  to  surplus.  Depositors' 
prior  claim. 

§  21a.  Preferences.     Public  moneys.     Overdraft.     Bad  debt. 

§  22.  Commercial  savings  and  trust  combinations. 

§  23.  Consent  to  doing  departmental  business.     Capital  stock. 

§  24.  Certificate   for   each    department   required.     Fee. 

"§  SS.  Department  money  reserve.  Deposits,  transfer  of  to  other  depart- 
ments. 

§  26.  Books  of  account  to  be  kept  separate. 

§  27.  Depositors,  security  for. 

§  28.  Signs  must  show  kind  of  bank.     Branches. 

§  29.  Non-stock  corporations  heretofore  created. 

§  30.  Safe  deposits. 

§  31.  Sale  of  business.  Conditions  of  sale  slated.  Eights  of  creditors. 
Publication   of  notices. 

§  31a.  Consolidation  of  banks.     Procedure. 

§  32.  Trust  funds. 

§  33.  Officers  not  to  borrow  funds.     Eepealed. 

§  34.  Capital  stock,  purchase  of. 

§  35.  Officer  not  to  sell  notes  to  bank. 

§  36.  Bonds,  purchase  of. 

§  37.  Investment  in  capital  stock  of  corporations. 

§  38.  Penal  liabilities  of  directors  and  employees. 

§  39.  Officer  may  not  overdraw  account. 

§  40.  Stockholders'  liability,  waiver  of. 

§  41.  Officer  or  employee  not  to  purchase  obligation  at  discount. 

§  42.  Officer  or  employee  not  to  purchase  assets  at  discount. 

§  43.  Designating  depositaries. 

§  44.  Loans  on  bank  stock. 

§  45.  Interest  unpaid. 

§  46.  Investments  or  loans  in  one  bond  issue. 

§  47.  Loans  on  realty. 

§  48.  National  banks,  examination  of. 

§  49.  Unlawful  for  commercial  banks  to  advertise  as  savings  banks. 

§  50.  Posting  of  certificate. 

§  51.  Deposits  by  order  of  court. 

§  52.  Certified  cheeks. 

§  53.  Par  value  of  capital  stock. 

§  54.  Sale  of  real  estate  held  by. 

§  55.  Eeceiving  deposits  not  creation  of  debt.  Eeal  and  personal  estate 
defined. 

§  56.  National  reserve  association. 

§  57.  Loans  secured  by  a  first  lien  on  real  estate. 

Title  of  act. 

Section  1.  This  act  shall  be  known  as  the  "bank  act,"  and 
shall  be  applicable  to  all  corporations  specified  in  the  next 
section  and  to  such  other  persons,  associations,  copartnerships 
or  corporations  who  shall,  by  violating  any  of  its  provisions, 
become  subject  to  the  penalties  provided  therein.  [Amend- 
ment approved  June  3,  1915;  Stats.  1915,  p.  1104.  Also 
amended  May  6,  1913;  Stats.  1913,  p.  137.] 

"Bank"  defined.     Money  in  escrow.     Classification. 

Sec.  2.  The  word  "bank,"  as  used  in  this  act  shall  be  con- 
strued to  mean  any  incorporated  banking  institution  which 


844  APPENDIX.  §  5 

shall  have  been  incorporated  to  conduct  the  business  of  receiv- 
ing money  on  deposit,  or  transacting  a  trust  business  as  here- 
inafter defined.  The  soliciting,  receiving,  or  accepting  of 
money  or  its  equivalent  on  deposit  as  a  regular  business  shall 
be  deemed  to  be  doing  a  commercial  or  savings  bank  business 
whether  such  deposit  is  made  subject  to  check  or  is  evidenced 
by  a  certificate  of  deposit,  a  pass  book,  a  note,  a  receipt  or- 
other  writing ;  provided,  that  nothing  herein  shall  apply  to  or 
include  money  or  its  equivalent  left  in  escrow  or  left  with  an 
agent,  pending  investment  in  real  estate  or  securities  for  or 
on  account  of  his  principal.  It  shall  be  unlawful  for  any  cor- 
poration, partnership,  firm,  or  individual  to  engage  in  or  trans- 
act a  banking  business. within  this  state  except  by  means  of  a 
corporation  duly  organized  for  such  purpose.  Banks  are  di- 
vided into  the  following  classes : 

(a)  Sa\nngs  banks ; 

(b)  Commercial  banks;  and 

(c)  Trust  companies.  [Amendment  approved  Mav  6,  1913; 
Stats.  1913,  p.  137.] 

Corporations,  how  formed. 

Sec.  3.  Corporations  may  be  organized  by  any  number  of 
natural  persons,  not  less  in  any  case  than  three,  under  the  laAvs 
of  this  state  to  conduct,  as  provided  in  this  act,  and  not  other- 
wise, am-  one  or  more  or  all  of  the  businesses  mentioned  in 
divisions  (a),  (5),  and  (c)  of  section  two,  of  this  act.  [Amend- 
ment approved  June  3,  1915:  Stats.  1915,  p.  1105.  Also 
amended  May  6,  1913:  Stats.  1913,  p.  137.] 

Savings  bank,  meaning  of  term. 

Sec.  4.  The  term  "savings  bank,"  when  used  in  this  act, 
means  a  bank  organized  for  the  purpose  of  accumulating  and 
loaning  the  funds  of  its  members,  stockholders,  and  depositors, 
and  Avhich  may  loan  and  invest  the  funds  thereof,  receive  de- 
posits of  money;  loan,  invest,  and  collect  the  same  with  in- 
terest ;  and  may  repay  depositors  with  or  without  interest, 
and  having  power  to  invest  said  funds  in  such  property,  se- 
curities, and  obligations  as  may  be  prescribed  by  this  act ;  and 
to  declare  and  pay  dividends  on  its  general  deposits,  and  a 
stipulated  rate  of  interest  on  deposits  made  for  a  stated  period 
or  upon  special  terms. 

Commercial  bank. 

Sec.  5.  The  term  "commercial  bank,"  when  used  in  this  act. 
means  any  bank  authorized  by  law  to  receive  deposits  of 
money,  deal  in  commercial  paper,  or  to  make  loans  thereon, 
and  to  lend  money  on  real  or  personal  property,  and  to  dis- 
count bills,  notes,  or  other  commercial  paper,  and  to  buy  and 


I 


§  7  BANKING.  845 

sell  securities,  gold  and  silver  bullion,  or  foreign  coins  or  bills 
of  exchange. 

"Trust  company"  defined. 

Sec.  6.  The  term  "trust  company,"  when  used  in  this  act, 
means  any  corporation  which  is  incorporated  under  the  laws 
of  this  state  for  the  purpose  •  of  conducting  the  business  of 
acting  as  executor,  administrator,  guardian  of  estates,  as- 
signee, receiver,  depositary  or  trustee  under  appointment  of 
any  court  or  by  authority  of  any  law  of  this  state,  or  as  trustee 
for  any  purpose  permitted  by  law.  [Amendment  approved 
May  6,  1913;  Stats.  1913,  p.  137.] 

Foreign  corporations,  requirements  of. 

Sec.  7.  No  foreign  corporation  shall  transact  a  banking 
business  in  this  state  without  first  complying  with  all  the  re- 
quirements of  the  laws  of  this  state  relative  to  banks  as  defined 
in  this  act,  and  without  having  assigned  to  its  business  in  this 
state  the  amount  of  paid-up  capital  and  surplus  required  by 
this  act  for  the  transaction  of  such  business  within  this  state. 
No  foreign  banking  corporation  shall  transact  business  in  this 
state  until  such  corporation  has  made  the  assignment  of 
capital  required  by  this  section  and  has  received  a  certificate 
from  the  state  superintendent  of  banks.  Any  foreign  bank- 
ing corporation  transacting  business  in  this  state  shall  become 
subject  to  the  supervision  of  the  state  superintendent  of 
banks.  Every  foreign  banking  corporation,  including  those 
which  were  on  January  second,  nineteen  hundred  thirteen, 
transacting  business  in  this  state,  which  receives  any  deposits 
or  transacts  any  other  banking  business  or  transacts  its  busi- 
ness in  such  a  manner  as  might  lead  the  public  to  believe  that 
its  business  is  that  of  a  bank,  shall  conduct  all  its  business  in 
accordance  with  the  statutes  governing  incorporated  banking 
institutions  organized  under  the  laws  of  this  state.  The  capi- 
tal of  any  such  foreign  banking  corporation  assigned  to  its 
business  in  this  state  and  all  funds  and  deposits  of  money  re- 
ceived by  any  such  corporation  in  this  state  or  for  or  in  con- 
nection with  its  business  in  this  state  and  all  accounts  and 
transactions  of  said  business  transacted  by  any  such  foreign 
corporation  in  this  state  shall  be  kept  separate  and  apart  from 
the  general  business,  assets  and  accounts  of  such  foreign  cor- 
poration in  the  same  manner  as  if  the  business  of  such  foreign 
corporation  conducted  within  this  state  was  that  of  a  separate 
and  independent  corporation  organized  under  the  laws  of  this 
state  for  the  purpose  of  doing  a  banking  business  and  all  of 
the  provisions  of  this  act  affecting  investments,  loans  of 
money,  receiving  deposits,  and  conducting  business  in  any 
respect  shall  be  deemed  to  apply  to  such  assigned  capital, 


846  APPENDIX.  §  7 

investments,  loans,  deposits,  assets,  funds,  and  business  in  the 
same  manner  as  if  such  assigned  capital,  investments,  loans,  de- 
posits, assets,  funds  and  business  were  that  of  such  separate 
and  independent  corporation ;  provided,  that  loans  may  be 
made  by  any  such  foreign  corporation  based  on  its  entire 
paid-up  capital  and  surplus  in  case  such  foreign  corporation 
shall  have  assigned  to  its  business  in  this  state. a  paid-up 
capital  and  surplus  as  above  provided  equal  to  20  per  centum 
of  the  deposit  liability  of  such  branch  agency  or  office  to  resi- 
dents of  this  state.  Such  funds  and  investments  or  loans 
thereof  shall  be  appropriated  solelj'  to  the  security  and  pay- 
ment of  such  deposits,  and  shall  not  be  mingled  with  the  in- 
vestments of  the  capital  stock  or  other  money  or  propeHy 
belonging  to  such  corporation  or  be  liable  for  the  debts  or  obli- 
gations thereof.  All  income  received  from  the  investment  of 
said  funds  over  and  above  such  funds  as  may  be  paid  to  de- 
positors as  interest  or  shall  be  carried  to  the  surplus  fund,  as 
provided  in  section  twenty-one  of  this  act,  shall  accrue  as 
profits  to  the  corporation  and  may  be  transferred  to  its  gen- 
eral funds.  No  such  foreign  corporation  shall  transact  any 
banking  business  in  this  state  until  it  has  executed  and  filed 
with  the  superintendent  of  banks  a  written  instrument  ap- 
pointing such  superintendent  or  his  successor  in  office,  its  true 
and  lawful  attorney,  upon  whom  all  process  issued  by  au- 
thority of  or  under  any  law  of  this  state  may  be  served,  with 
the  same  effect  as  if  such  corporation  was  formed  under  the 
laws  of  this  state  and  had  been  lawfully  served  with  process 
therein.  Such  service  upon  such  attorney  shall  be  deemed 
personal  service  on  such  corporation.  The  superintendent  of 
banks  shall  forthwith  forward  by  mail,  postage  prepaid,  a 
copy  of  every  process  served  upon  him  under  the  provisions 
of  this  section,  addressed  to  the  manager  or  agent  of  such 
corporation,  at  its  principal  place  of  business  in  this  state. 
For  each  copy  of  process,  the  superintendent  of  banks  shall 
collect  the  sum  of  two  dollars,  which  shall  be  paid  by  the 
plaintiff  or  moving  party  at  the  time  of  the  service,  to  be  re- 
covered by  him  as  a  part  of  his  taxable  costs  if  he  succeed  in 
the  suit  or  proceeding.  No  foreign  corporation  shall  have  or 
exercise  in  this  state  the  power  to  receive  deposits  of  trust 
moneys,  securities,  or  other  personal  property  from  any  per- 
son or  corporation  or  any  of  the  powers  specified  in  section  six 
of  this  act,  nor  have  or  maintain  an  office  in  this  state  for  the 
transaction  of,  or  transact,  directly  or  indirectly,  any  such 
or  similar  business,  except  that  a  trust  company  incorporated 
in  another  state  may  be  appointed  and  may  accept  appoint- 
ment and  may  act  in  this  state  as  executor  of  or  trustee  under 
the  last    will  and    testament  of  any    deceased    person,  upon 


§  8  BANKING.  847 

giving  the  bond  required  in  such  case  of  individuals  unless 
waived  by  the  last  will  and  testament  making  such  appoint- 
ment and  by  taking  and  subscribing  an  oath  for  faithful  per- 
formance of  such  trust  by  the  president^  vice-president,  secre- 
tary, manager  or  trust  officer  of  said  corporation;  provided, 
that  similar  corporations  organized  under  the  laws  of  this 
state  are  permitted  by  law  to  act  as  such  executor  or  trustee 
in  the  state  where  such  foreign  corporation  was  organized ; 
and  provided,  further,  that  such  superintendent  of  banks,  for 
the  time  being,  shall  be  the  attorney  of  such  foreign  corpora- 
tion qualifying  or  acting  in  this  state  as  such  executor  or 
trustee,  upon  w^hom  process  against  such  foreign  corporation 
may  be  served  in  any  action  or  legal  proceeding  against  such 
executor  or  trustee,  affecting  or  relating  to  the  estate  or  prop- 
erty represented  or  held  by  such  executor  or  trustee,  or  any 
act  or  default  of  such  foreign  corporation  in  reference  to  such 
estate  or  property,  and  it  shall  be  the  duty  of  any  such  foreign 
corporation  so  qualifying  or  acting  to  file  in  the  office  of  said 
superintendent  of  banks  a  copy  of  its  articles  of  incorporation, 
or  of  the  statute  chartering  such  corporation,  certified  by  its 
secretary  under  its  corporate  seal,  together  with  the  postoffice 
address  of  its  home  office,  and  a  duly  executed  appointment  of 
said  superintendent  of  banks  as  its  attorney  to  accept  service 
of  process  as  above  provided,  and  said  superintendent  of 
banks,  when  any  such  process  is  served  upon  him,  shall  at 
once  mail  the  papers  so  served  to  the  home  office  of  such  cor- 
poration; and  provided,  further,  that  no  foreign  corporation 
having  authority  to  act  as  executor  of  or  trustee  under  the 
last  will  and  testament  of  any  deceased  person  shall  establish 
or  maintain,  directly  or  indirectly,  any  branch  office  or  agency 
in  this  state,  or  shall  in  any  way  solicit,  directly  or  indirectly, 
any  business  as  executor  or  trustee  therein,  and  that  for  any 
violation  of  this  proviso,  the  court  havings  jurisdiction  of  such 
executor  or  trustee  in  said  proceeding  may  in  its  discretion, 
revoke  the  right  of  such  foreign  corporation  thereafter  to  act 
as  executor  or  trustee  therein ;  provided,  that  nothing  in  this 
act  shall  limit  or  affect  the  right  of  any  foreign  corporation 
doing  a  banking  business  in  this  state,  to  lend  within  this 
state,  moneys  of  such  corporation  which  do  not  form  a  part 
of  the  moneys,  deposits  or  assets  of  such  corporation  assigned 
or  belonging  to  its  business  in  this  state.  [Amendment  ap- 
proved May  6,  1913;  Stats.  1913,  p.  137.] 

Copy  of  articles  of  incorporation.     Affidavit. 

Sec.  8.  Every  corporation,  at  the  time  it  applies  for  a  cer- 
tificate of  authority  to  do  a  banking  business,  must  file  with 
the  superintendent  of  banks  a  certified  copy  of  its  articles  of 


848  APPENDIX.  §  9 

incorporation,  or  of  the  statute  chartering  such  coi^poration,  a 
certified  copy  of  its  by-laws,  and  also  a  certified  copy  of  all 
instruments  amending  or  altering  such  articles  of  incorpora- 
tion or  charter  or  by-laAvs.  Thereafter  a  certified  copy  of  each 
amendment  or  certificate  shall  likewise  be  so  filed  before  such 
instrument  takes  effect.  There  must  also  be  filed  in  the  office  of 
the  superintendent  of  banks  before  he  shall  issue  his  certificate 
a  certified  copy  of  the  affidavit  required  by  section  two  hun- 
dred ninety  a  of  the  Civil  Code.  Each  certification  required 
by  the  provisions  of  this  section  other  than  that  of  by-laws 
must  be  by  the  secretarv  of  state.  [Amendment  approved 
May  6,  1913 ;  Stats.  1913,  p.  140.] 

Branch  offices.    Fee.     Savings  banks  in  schools.     Penalty. 

Sec.  9.  No  bank  in  this  state,  or  any  officer  or  director 
thereof,  shall  hereafter  open  or  keep  an  office  other  than  its 
principal  place  of  business,  without  first  having  obtained  the 
written  approval  of  the  superintendent  of  banks  to  the  open- 
ing of  such  branch  office,  Avhich  written  approval  may  be 
given  or  withheld  in  his  discretion,  and  shall  not  be  given  by 
him  until  he  has  ascertained  to  his  satisfaction  that  the  public 
convenience  and  advantage  will  be  promoted  by  the  opening 
of  such  branch  office ;  provided,  that  no  bank  or  any  officer  or 
director  thereof,  shall  open  or  maintain  any  such  branch  office 
unless  the  capital  of  such  bank,  actually  paid  in,  in  cash,  shall 
exceed  the  amount  required  by  this  act  by  the  sum  of  twent}- 
five  thousand  dollars  for  each  branch  office  opened  and  main- 
tained. Every  bank,  before  it  opens  a  branch  office,  shall  ob- 
tain the  certificate  of  authority  of  the  superintendent  of  banks 
for  the  opening  of  each  of  said  branch  offices.  The  applicant 
shall  pay  for  such  certificate  a  fee  of  fifty  dollars ;  provided, 
however,  that,  in  order  to  encourage  saving  among  the  chil- 
dren of  the  schools,  of  this  state,  a  bank  may,  with  the  written 
consent  of  and  under  regulations  approved  by  the  superinten- 
dent of  banks  and,  in  the  case  of  public  schools,  by  the  board 
of  education  or  board  of  school  trustees  of  the  city  or  district 
in  which  the  school  is  situated,  arrange  for  the  collection  of 
savings  from  the  school  children  by  the  principal  or  teachers 
of  such  schools  or  by  collectors.  The  principal,  teacher  or 
person  authorized  by  the  bank  to  make  collections  from  the 
school  children  shall  be  deemed  to  be  the  agent  of  the  bank 
and  the  bank  shall  be  liable  to  the  pupil  for  all  deposits  made 
with  such  principal,  teacher  or  other  person,  the  same  as  if  the'^ 
deposits  were  made  by  the  pupil  directly  Avith  the  bank. 
Every  bank  and  every  such  officer  or  director  violating  the 
provisions  of  this  section  shall  forfeit  to  the  people  of  the  state 
the  sum  of  one  hundred  dollars  for  every  day  during  which 


§  11  BANKING.  849 

any  branch  office  hereafter  opened  shall  be  maintained  with- 
out such  written  approval.  [Amendment  approved  Mav  6, 
1913;  Stats.  1913,  p.  140.] 

Qualifications  of  bank  directors.     Banks   organized  without 
capital  stock. 

Sec.  10.  No  person  shall  be  eligible  for  election  as  director 
of  a  bank  having  a  capital  stock  unless  he  is  a  stockholder  of 
the  bank,  owning,  in  his  own  right,  shares  thereof  of  the  par 
value  of  at  least  five  hundred  dollars ;  and  every  person 
elected  to  be  director  who,  after  such  election,  shall  cease  to  be 
the  owner  in  his  own  right  of  the  amount  of  such  stock  afore- 
said, or  shall  hypothecate  or  in  any  w^ay  pledge  such  stock  as 
security  for  any  loan  or  debt  shall  immediately  notify  the 
superintendent  of  banks  in  writing  of  such  sale  or  hypotheca- 
tion and  such  director  may  be  removed  from  the  office  of 
director  by  the  superintendent  of  banks;  provided,  hoAvever, 
that  any  executor  or  executrix,  administrator  or  administra- 
trix holding  shares  of  a  bank  of  the  par  value  of  five  hundred 
dollars,  in  his  or  her  representative  capacity  shall  be  eligible 
for  election  as  a  director  thereof.  If  a  bank  be  organized 
without  capital  stock,  no  person  shall  be  eligible  as  a  director 
thereof  unless  he  is  both  a  member  and  a  depositor  of  such 
bank.  [Amendment  approved  June  3,  1915 ;  Stats.  1915, 
p.  1138.     Also  amended  May  6,  1913 ;  Stats.  1913,  p.  141.] 

Meetings.     Oath  of  director.     Agents  of  foreign  corporations. 

Sec.  11.  The  board  of  directors  of  a  bank  organized  under 
the  laws  of  this  state  must  hold  a  meeting  in  its  banking 
premises  at  least  once  a  month.  Each  such  director,  when 
appointed  or  elected,  shall  take  an  oath  that  he  Avill,  as  far  as 
the  duty  devolves  on  him,  diligently  and  honestly  administer 
the  affairs  of  such  bank,  and  w411  not  knowingly  violate  or 
willfully  permit  to  be  violated  any  of  the  provisions  of  law 
applicable  to  such  bank,  and  that  he  is  the  owner  in  good  faith 
and  in  his  own  right  of  shares  of  stock  of  the  par  value  re- 
quired by  section  ten  of  this  act,  subscribed  by  him  or  standing 
in  his  name  on  the  books  of  the  bank,  and  that  the  same  to  an 
amount  equal  to  the  par  value  of  at  least  five  hundred  dollars, 
are  not  hypothecated  or  in  any  way  pledged  as  security  for 
any  loan  or  debt.  Such  oath  shall  be  subscribed  by  the  di- 
rector making  it,  certified  by  the  officer  before  whom  it  is 
taken,  and  immediately  transmitted  to  the  superintendent  of 
banks  and  filed  and  preserved  in  his  office ;  provided,  the 
managers  or  agents  residing  in  this  state,  of  a  foreign  cor- 
poration transacting  any  banking  business  in  this  state,  shall 
take  an  oath  that  they  will,  as  far  as  the  duty  devolves  on 

Civ.  Code — 54 


850  APPENDIX.  §  12 

them,  diligently  and  honestly  administer  the  affairs  of  such 
bank,  and  will  not  knowingly  violate  or  willfully  permit  to  be 
violated  any  of  the  provisions  of  law  applicable  to  such  bank. 
Such  oath  shall  be  subscribed  by  the  managers  or  agents 
taking  it,  certified  by  the  officer  before  Avhom  it  is  taken,  and 
immediately  transmitted  to  the  superintendent  of  banks  and 
filed  and  preserved  in  his  of^ce.  [Amendment  approved  June 
3,  1915;  Stats.  1915,  p.  1105.  Also  amended  April  21,  1911; 
Stats.  1911,  p.  1008  and  May  6,  1913;  Stats.  1913,  p.  141.] 

Unlawful  naming'  or  description  of  business  as  bank  or  trust 
company.  Exception  in  case  of  building  and  loan  associa- 
tions. 

Sec.  12.  No  person,  firm,  company,  copartnership  or  -cor- 
poration, either  domestic  or  foreign,  not  subject  to  the  super- 
vision of  the  superintendent  of  banks,  and  not  required,  by 
the  provisions  of  this  act,  to  report  to  him,  and  which  has  not 
received  a  certificate  to  do  a  banking  business  from  the  super- 
intendent of  banks,  shall  advertise  that  he  or  it  is  receiving  or 
accepting  money  or  savings,  and  issuing  notes  or  certificates 
of  deposit  therefor,  or  shall  make  use  of  anj_^  office  sign,  at  the 
place  where  such  business  is  transacted,  haying  thereon  any 
artificial  or  corporate  name,  or  other  Avords  indicating  that 
such  place  or  office  is  the  place  or  office  of  a  bank  or  trust 
company,  or  that  deposits  are  received  there  or  payments 
made  on  check,  or  any  other  form  of  banking  business  trans- 
acted, nor  shall  any  such  person  or  persons,  firm,  company, 
copartnership  or  corporation,  domestic  or  foreign,  make  use 
of  or  circulate  any  letterheads,  billheads,  blank  notes,  blank 
receipts,  certificates  or  circulars,  or  any  written  or  printed, 
or  partly  Avritten  and  partly  printed,  paper,  whatever,  having 
thereon  any  artificial  or  corporate  name  or  other  word  or 
words  indicating  that  such  business  is  the  business  of  a  bank, 
savings  bank  or  trust  company;  nor  shall  any  such  person, 
firm,  company,  copartnership  or  corporation,  or  any  agent  of 
a  foreign  corporation  not  having  an  established  place  of  busi^ 
ness  in  this  state,  solicit  or  receive  deposits  or  transact  busi- 
ness in  the  way  or  manner  of  a  bank,  savings  bank  or  trust 
company,  or  in  such  a  way  or  maimer  as  to  lead  the  public  to  -] 
believe  that  its  business  is  that  of  a  bank,  savings  bank  or 
trust  company.  Nor  shall  any  person,  'firm,  company,  copart- 
nership or  corporation,  domestic  or  foreign,  not  subject  to  the 
supervision  of  the  superintendent  of  banks,  and  not  required 
by  the  provisions  of  this  act  to  report  to  him,  and  which  has 
not  received  from  the  superintendent  of  banks  a  certificate  to 
do  a  banking  business,  hereafter  transact  business  under  any. 
name  or  title  which  contains  the  Avord  "bank,"  or  "banker," 


§  12a  BANKIKG.  851 

or  "banking,"  or  "savings  bank,"  or  "savings"  or  "trust"  or 
"trustee"  or  "trust  company" ;  provided,  that  this  section  shall 
not  apply  to  the  corporate  name  of  any  building  and  loan  as- 
sociation now  or  heretofore  doing  business  in  this  state;  and 
provided,  further,  that  any  such  association  having  in  its  cor- 
porate name  words  not  clearly  indicating  the  nature  of  its 
business  shall,  on  all  signs,  letterheads  and  advertising  matter, 
state  "This  is  a  building  and  loan  association"  or  words  to 
that  effect;  and  provided,- further,  that  any  building  and  loan 
association  may  borrow  money,  issue  investment  certificates  or 
evidences  of  indebtedness,  stating  the  rate  of  interest  and 
terms  and  conditions  of  repayment,  and  do  such  other  business 
as  may  be  authorized  by  the  laAvs  of  the  state  relating  to  build- 
ing and  loan  associations ;  and  provided,  further,  that  no  such 
association  shall  advertise  or  hold  itself  out  to  the  public  as  a 
savings  bank.  Any  person,  firm,  company,  copartnership  or 
corporation,  domestic  or  foreign,  violating  any  provision  of 
this  section  shall  forfeit  to  the  state  one  hundred  dollars  a  day 
for  every  day  or  part  thereof  during  which  such  violation  con- 
tinues. Upon  action  brought  by  the  superintendent  of  banks 
the  court  may  issue  an  injunction  restraining  any  such  person, 
firm,  company,  copartnership  or  corporation  from  further 
using  such  words  in  violation  of  the  provisions  of  this  section 
or  from  further  transacting  business  in  such  a  Avay  or  manner 
as  to  lead  the  public  to  believe  that  its  business  is  that  of  a 
bank,  savings  bank  or  trust  company  during  the  pendency  of 
such  action  and  for  all  time  and  maj  make  such  other  order 
or  decree  as  equity  and  justice  may  require.  [Amendment 
approved  May  6,  1913 ;  Stats.  1913,  p.  141.  Also  amended 
December  24,  1911;  Stats.  1911,  Ex.  Sess.,  p.  115.] 

Prerequisites  to  advertising  as  bank.  Not  applicable  to  build- 
ing and  loan  associations. 
Sec.  12a.  Every  person,  firm,  company,  copartnership  or 
corporation,  domestic  or  foreign,  advertising  that  he  or  it  is 
receiving  or  accepting  money  or  savings,  and  issuing  notes  or 
certificates  of  deposit  therefor  or  advertising  that  he  or  it  is 
transacting  the  business  of  a  bank,  savings  bank  or  trust  com- 
pany, or  making  use  of  any  office  sign  at  the  place  where  such 
business  is  transacted,  having  thereon  any  artificial  or  cor- 
porate name,  or  other  words  indicating  that  such  place  or 
office  is  the  place  or  office  of  a  bank  or  trust  company,  or  that 
deposits  are  received  there  or  payments  made  on  check,  or 
that  interest  is  paid  on  deposits,  or  that  certificates  of  deposit, 
•either  with  or  without  interest  are  being  issued,  or  that  any 
other  form  of  banking  business  is  transacted,  and  every  person, 
firm,    company,    copartnership    or    corporation,    domestic    or 


852  .vppENDix.  §  12a 

foreign,  making  use  of  or  eircnlating  any  letterheads,  bill- 
heads, blank  notes,  blank  receipts,  certificates  or  circulars,  or 
any  written  or  printed,  or  partly  written  and  partly  printed. 
paper,  v/hatever,  having  thereon  any  artificial  or  corporate 
name,  or  advertising  that  such  business  is  the  business  of  a 
bank,  savings  bank  or  trust  company,  must  have  the  proper 
capital  stock  paid  in  and  set  aside  for  the  purpose  of  trans- 
acting such  business,  and  must  have  received  from  the  super- 
intendent of  banks,  as  provided  for  in  this  act,  a  certificate 
to  do  a  banking  business.  Any  person,  firm,  company,  copart- 
nership or  corporation,  domestic  or  foreign,  violating  any  pro- 
vision of  this  section  shall  forfeit  to  the  state  one  hundred 
dollars  a  day  for  every  day  or  part  thereof  during  which  such 
violation  continues.  Upan  action  brought  by  the  superin- 
tendent of  banks  the  court  may  issue  an  injunction  restraining 
any  such  person,  firm,  company,  copartnership  or  corporation 
from  further  violating  any  provision  of  this  section,  and  may 
make  such  further  order  or  decree  as  equity  and  justice  may 
require.  Every  person,  firm,  company,  copartnership  or  cor- 
poration doing  an3'  of  the  things  or  transacting  any  of  the 
business  defined  in  this  section,  must  transact  such  business 
according  to  the  provisions  of  the  bank  act,  and  the  superin- 
tendent of  banks  or  his  deputy  or  examiners  shall  have  au- 
thority to  examine  the  accounts,  books  and  papers  of  every 
such  person,  firm,  company,  copartnership  or  corporation, 
domestic  or  foreign,  in  order  to  ascertain  whether  such  person, 
firm,  company,  copartnership  or  corporation  has  violated  or 
is  violating  any  provisions  of  this  section;  provided,  that  this 
section  shall  not  apply  to  the  corporate  name  of  any  building 
and  loan  association  noAv  or  heretofore  doing  business  in  this 
state ;  and  provided,  further,  that  any  such  association  having 
in  its  corporate  name  Avords  not  clearly  indicating  the  nature 
of  its  business  shall,  on  all  signs,  letterheads  and  advertising 
matter,  state :  "This  is  a  building  and  loan  association"  or 
words  to  that  effect;  and  provided,  further,  that  any  building 
and  loan  association  may  borrow  money,  issue  investment  cer- 
tificates or  evidences  of  indebtedness,  stating  the  rate  of 
interest  and  terms  and  conditions  of  repayment,  and  do  such 
other  business  as  may  be  authorized  by  the  laws  of  the  state 
relating  to  building  and  Joan  associations;  and  provided, 
further,  that  no  such  association  shall  advertise  or  hold  itself 
out  to  the  public  as  a  savings  baiilv.  [Amendment  approved 
May  6,  1913;  Stats.  1913,  p.  143.  This  section  was  added  to 
the  act  April  21,  1911 ;  Stats.  1911,  p.  1008,  and  was  amended 
December  24,  1911;  Stats.  Ex.  Sess.  1911,  p.  116.] 


§  14  BANKING.  853 

Not  applicable  to  life  insurance  companies. 

Sec.  12b.  Nothing  in  this  act  shall  be  constrvied  or  held  to 
apply  to  any  corporation  organized  under  the  laM^s  of  any 
other  state  which  is  authorized  by  its  charter  or  articles  of 
incorporation  to  transact  the  business  of  life  insurance  and 
also  to  be  known  as  and  to  transact  business  as  a  trust  com- 
pany and  which  shall  have  complied  with  the  laws  of  this 
state  affecting  the  transaction  in  this  state  of  the  business 
of  life  insurance  by  a  foreign  corporation  and  which  shall 
have  heretofore  engaged  in  such  business  of  life  insurance 
in  this  state,  in  such  manner  as  to  forbid  or  prevent  its  mak- 
ing use  of  its  corporate  title  in  its  life  insurance  business  in 
this  state  in  any  such  Avay  and  to  any  such  extent  as  it  might 
have  made  use  of  the  same  if  this  act  had  not  been  passed. 
[New  section,  approved  May  6,  1913;  Stats.  1913,  p.  144.] 

Foreign  corporations  may  lend  money  in  state. 

See.  12c.  Any  corporation  organized  under  the  laws  of  any 
country  or  state  other  than  this  state  which  has  complied  with 
all  of  the  laws  of  this  state  pertaining  to  foreign  corporations 
and  is  not  engaged  in  the  business  of  banking  or  receiving 
money  on  deposit  in  this  state  may  lend  money  in  this  state 
and,  for  that  purpose,  may  maintain  offices  in  this  state,  and 
sue  and  be  sued  in  this  state  under  its  proper  corporate  name, 
notwithstanding  any  prohibitions  contained  in  this  act  as  to 
the  use  of  any  Avords  in  the  name,  signs  or  advertising  matter 
of  corporations  not  under  the  supervision  of  the  superinten- 
dent of  banks.  [New  section,  approved  May  6,  1913;  Stats. 
1913,  p.  144.] 

Express  companies,  etc.,  may  issue  letters  of  credit.     License 
and  fee. 

Sec.  13.  Nothing  in  this  act  contained  shall  be  deemed  to 
prohibit  any  person  or  co-partnership  or  corporation  or  any 
telegraph  company,  express  company  or  other  common  carrier 
from  engaging  in  the  business  of  buying  or  selling  exchange 
or  of  issuing  letters  of  credit ;  providing,  such  person,  co-part- 
nership, corporation,  company  or  common  carrier  shall  have 
received  a  license  from  the  superintendent  of  banks  to  engage 
in  such  business.  Such  license  may  be  issued  upon  application 
and  the  payment  of  a  fee  of  fifty  dollars  and  may  be  refused 
or  revoked  by  the  superintendent  of  banks  at  his  discretion. 
[New  section,  approved  June  3,  1915 ;  Stats.  1915,  p.  1105. 
Original  section  13  relating  to  unincorporated  banks  was  re- 
pealed May  6,  1913;  Stats.  1913,  p.  144.] 

Advertising  statements,  to  contain,  what. 

Sec.  14.  No  bank,  or  officer  thereof,  shall  advertise  in  any 
manner,  or  publish  any  statement  of  the  capital  authorized  or 


854  APPENDIX.  §  15 

subscribed,  unless  it  or  he  advertise  and  publish  in  connection 
therewith,  the  amount  of  capital  actually  paid  up.  No  bank 
shall  publish  a  statement  of  its  resources  or  liabilities  in  con- 
nection with  those  of  any  other  bank,  unless  such  statement 
shall  show  the  resources  and  liabilities  of  each  bank  sepa- 
rately ;  nor  shall  surplus  and  undivided  profits  be  advertised 
as  an  aggregate.  [Amendment  approved  May  6,  1913.  Stats. 
1913,  p.  144.] 

Unclaimed  deposits,  and  proceedings  in  case  of. 

Sec.  15.  All  amounts  of  money  heretofore  or  hereafter 
deposited  with  any  bank  to  the  credit  of  depositors  who  have 
not  made  a  deposit  on  said  account  or  withdrawn  any  part 
thereof  or  the  interest  and  which  shall  have  remained  un- 
claimed for  more  than  twenty  years  after  the  date  of  such  de- 
posit, or  withdrawal  of  any  part  of  principal  or  interest,  and 
where  neither  the  depositor  or  any  claimant  has  filed  any 
notice  with  such  bank  showing  his  or  her  present  residence, 
shall,  with  the  increase  and  proceeds  thereof,  be  deposited 
with  the  state  treasurer  after  judgment  in  the  manner  pro- 
vided in  the  Code  of  Civil  Procedure.  At  the  time  of  issuing 
the  summons  in  the  action  provided  for  in  section  1273  of  tho 
Code  of  Civil  Procedure,  the  clerk  shall  also  issue  a  notice 
signed  by  him,  giving  the  title  and  number  of  said  action, 
and  referring  to  the  complaint  therein,  and  directed  to  all 
persons,  other  than  those  named  as  defendants  therein,  claim- 
ing any  interest  in  any  deposit  mentioned  in  said  complaint, 
and  requiring  them  to  appear  within  sixty  days  after  the  first 
publication  of  such  summons,  and  shoAv  cause,  if  any  they 
have,  why  the  moneys  involved  in  said  action  should  not  be 
deposited  with  the  state  treasurer  as  in  said  section  provided, 
and  notifying  them  that  if  they  do  not  so  appear  and  show 
cause,  the  state  Avill  apply  to  the  court  for  the  relief  demanded 
in  the  complaint.  A  copy  of  said  notice  shall  be  attached  to 
and  published  Avith  the  copy  of  said  summons  required  to  be 
published  by  said  section,  and  at  the  end  of  the  copy  of  such 
notice  so  published  there  shall  be  a  statement  of  the  date  of 
the  first  publication  of  said  summons  and  notice.  Any  person 
interested  may  appear  in  said  action  and  become  a  party 
thereto.  Upon  the  completion  of  the  publication  of  the  sum- 
mons and  notice,  and  the  service  of  the  summons  on  the  de- 
fendant bank,  or  banks,  as  in  said  section  1273  of  the  Code 
of  Civil  Procedure  provided,  the  court  shall  have  full  and 
complete  jurisdiction  over  the  state,  and  the  said  deposits  and  of 
the  person  of  everyone  having  or  claiming  any  interest  in  the 
said  deposits,  or  any  of  tlfem,  and  shall  have  full  and  com- 
plete jurisdiction  to  hear  and  determine  the  issues  therein,  and 


§  15  .  BANKING.  855 

render  the  appropriate  judgment  thereon.  The  president  or 
managing  officer  of  every  bank  must,  within  fifteen  days  after 
the  first  day  of  January  of  every  year,  return  to  the  superin- 
tendent of  banks  and  to  the  state  controller  a  sworn  statement 
showing  the  names  of  depositors  known  to  be  dead,  or  who 
have  not  made  further  deposits,  or  withdrawn  any  moneys 
during  the  preceding  twenty  years.  Such  statement  shall 
show  in  detail  the  following  matters,  viz. : 

First — The  name  and  last  known  place  of  residence  or  post 
office  address  of  the  person  making  such  deposit ; 

Second — The  amount  and  date  of  such  deposit  and  whether 
the  same  are  in  moneys  or  securities,  and  if  the  latter,  the 
nature  of  the  same ; 

Third — The  interest  due  on  such  deposit,  if  any,  and  the 
amount  thereof; 

Fourth — The  sum  total  of  such  deposit,  together  with  the 
interest  added  thereto  due  from  such  bank  on  account  of  such 
deposit  or  deposits  and  the  interest  thereon  to  such  depositor, 
but  nothing  contained  herein  shall  require  any  corporation  or 
person  renting  lock  boxes  or  safes  in  vaults  for  storage  pur- 
poses to  open  or  report  concerning  property  stored  therein. 
Such  reports  itemized  as  aforesaid  shall  be  signed  by  the  per- 
son making  the  same  and  shall  be  sworn  to  before  a  person 
competent  to  administer  oaths  as  a  full,  complete  and  truthful 
statement  of  each  of  the  items  therein  contained. 

The  president  or  managing  officer  of  every  bank  must, 
within  fifteen  days  after  the  first  day  of  January  of  every 
odd  numbered  year,  return  to  the  superintendent  of  banks  a 
sworn  statement  showing  the  names  of  depositors  known  to  be 
dead,  or  who  have  not  made  further  deposits,  or  withdrawn 
any  moneys  during  the  preceding  ten  years.  Such  statements 
shall  show  the  amount  of  the  account,  the  depositor's  last 
known  place  of  residence  or  post  office  address,  and  the  fact  of 
death,  if  known  to  such  president  or  managing  officer.  Such 
president  or  managing  officer  must  give  notice  of  these  de- 
posits in  one  or  more  newspapers  published  in  or  nearest  to 
the  town  or  city  where  such  bank  has  its  principal  place  of 
business,  at  least  once  a  week  for  four  consecutive  weeks,  the 
cost  of  such  publication  to  be  paid  pro  rata  out  of  such  un- 
claimed deposits.  This  section  does  not  apply  to  any  de- 
posit made  by  or  in  the  name  of  "a  person  known  to  the  presi- 
dent or  managing  officer  to  be  living.  The  superintendent  of 
banks  must  incorporate  in  his  subsequent  report  such  returns 
made  to  him  as  provided  in  this  section.  If  any  president  or 
managing  officer  of  any  bank  neglects  or  refuses  to  make  the 
sworn  statements  required   by  this  section  such  bank  shall 


856  APPENDIX.  §  16 

forfeit  to  the  State  of  California  the  sum  of  one  hundred  dol- 
lars a  day  for  each  day  such  default  shall  continue.  Any 
president  or  raanajafinj;  officer  of  any  hank  who  violates  anv  of 
the  provisions  of  this  section  shall  forfeit  to  the  State  of  Cali- 
fornia the  sum  of  one  hundred  dollars  a  day  for  each  and  every 
day  such  violation  shall  continue.  For  the  purposes  of  this 
section  all  deposits  received  by  any  bank  under  the  provision 
of  section  thirty-one  or  section  thirty-one  a  of  this  act  shall  be 
deemed  to  have  been  deposited  with  such  bank  at  the  time  the 
deposit  was  made  Avith  the  bank  from  Avhieh  the  deposit  was 
transferred ;  provided,  that  any  bank  which  shall  make  any 
deposit  Avith  the  state  treasurer  in  conformity  with  the  pro- 
visions of  this  section  shall  not  thereafter  be  liable  to  any 
person  for  the  same  and  any  action  Avhich  may  be  brought  by 
any  person  ag^ainst  any  bank  for  moneys  so  deposited  A\dth 
the  state  treasurer  shall  be  defended  by  the  attorney  general 
without  cost  to  such  bank.  [Amendment  approA^ed  June  3, 
1915 ;  Stats.  1915,  p.  1106.  Also  amended  May  6,  1913 ;  Stats. 
1913,  p.  145.] 

Deposits  of  married  women  and  infants.  Joint  deposits. 
WithdraAval  of  deposits  of  deceased  persons  over  one 
thousand  dollars. 

Sec.  16.  When  any  deposit  AA'ith  a  bank  shall  be  made  by  or 
in  the  name  of  any  married  AA'oman  or  minor,  the  same  shall 
be  held  for  the  exclusive  right  and  benefit  of  such  depositor, 
and  free  from  the  control  or  lien  of  all  other  persons,  except 
creditors,  and  shall  be  paid,  together  with  the  dividends,  if 
any,  and  interest,  if  any,  thereon  to  the  person  in  AA'hose  name 
deposits  shall  haA^e  been  made,  and  the  receipt  or  acquittance 
of  such  minor  shall  be  a  A'alid  and  sufficient  release  and  dis- 
charge for  such  deposit,  or  any  part  thereof,  to  the  bank. 
When  any  deposit  AA-ith  a  bank  shall  be  made  by  any  person  in 
trust  for  another,  and  no  other  or  further  notice  of  the  exist- 
ence and  terms  of  a  legal  and  A^alid  trust  shall  have  been  given 
in  AA-riting  to  such  bank,  in  the  event  of  the  death  of  the 
trustee,  the  same  or  any  part  thereof,  together  AA'ith  the  diA'i- 
dends  or  interest,  if  any,  thereon,  may  be  paid  to  the  person 
for  AA'hom  the  deposit  AA-as  made.  When  a  deposit  AA'ith  a  bank 
shall  be  made  by  any  nerson  in  tlie  names  of  such  depositor 
and  another  person  or  persons,  and  in  form  to  be  paid  to  either 
or  the  surAavor  or  survivors  of  them,  such  deposit  thereuj)on 
and  any  additions  thereto  made  by  either  of  such  persons  upon 
the  making  thereof,  shall  become  the  property  of  such  person 
as  joint  tenants,  and  the  same,  together  A\dth  all  interest 
thereon,  shall  be  held  for  the  exclusiA'c  use  of  the  persons  so 
named,  and  may  be  paid  to  either  during  the  lifetime  of  all 


I  16.  BANKING.  857 

or  any  or  to  the  survivor  or  survivors  after  the  death  of  one 
or  more  of  them,  and  such  payments  and  the  receipt  or  acquit- 
tance of  the  one  to  whom  such  payment  is  made  shall  be  valid 
and  sufficient  release  and  discharge  to  said  bank  for  all  pay- 
ments made  on  account  of  such  deposit. 

The  surviving  husl)and  or  wife,  or  the  guardian  of  the  estate 
of  any  insane  or  incompetent  husband  or  wife  of  any  deceased 
person,  or,  if  no  husband  or  wife  is  living,  then  the  children 
or  the  guardian  of  the  estates  of  any  minor  or  insane  or  incom- 
petent children  of  said  decedent,  or,  if  no  children  are  living, 
then  the  father  or  mother  or  guardian  of  the  estate  of  any 
insane  or  incompetent  father  or  mother  of  such  decedent,  and 
if  neither  the  father  nor  mother  is  living,  then  the  brothers  and 
sisters  or  the  guardian  of  the  estates  of  any  minor  or  insane 
or  incompetent  brothers  and  sisters  of  such  decedent,  may, 
without  procuring  letters  of  administration,  collect  of  any 
bank  any  sum  which  said  deceased  may  have  left  on  deposit 
in  such  bank  at  the  time  of  his  or  her  death ;  provided,  such 
deposit  shall  not  exceed  the  sum  of  one  thousand  dollars. 
Any  bank,  upon  receiving  an  affidavit  stating  that  said  deposi- 
tor is  dead,  and  that  affiant  is  the  surviving  husband  or  Avifc 
or  the  guardian  of  the  estate  of  an  insane  or  incompetent  sur- 
viving husband  or  wife,  as  the  case  may  be,  of  said  decedent, 
or  stating  that  decedent  left  no  husband  or  wife,  and  that  affi- 
ant is,  or  affiants  are,  the  children,  or  the  guardians  of  the 
estates  of  the  minor,  insane  or  incompetent  children,  as  the 
case  may  be,  of  said  decedent,  or  stating  that  decedent  left 
neither  husband,  wife  nor  children,  and  that  affiant  is  the 
father  or  mother,  or  the  guardian  of  the  estate  of  the  insane 
or  incompetent  father  or  mother,  as  the  case  may  be,  of  said 
decedent,  or  stating  that  the  decedent  left  neither  husband, 
wife,  children,  father  nor  mother,  and  that  affiants  are  the 
brothers  and  sisters  or  the  guardians  of  the  estates  of  the 
minor,  insane  or  incompetent  brothers  and  sisters,  as  the  case 
may  be,  of  said  decedent,  and  that  the  whole  amount  that 
decedent  left  on  deposit  in  any  and  all  banks  of  deposit  of  this 
state,  does  not  exceed  the  sum  of  one  thousand  dollars,  may 
pay  to  said  affiant  or  affiants,  any  deposit  of  said  decedent,  if 
the  same  does  not  exceed  the  sum  of  one  thousand  dollars,  and 
the  receipt  of  such  affiant  is  sufficient  acquittance  therefor ; 
provided,  however,  that  whenever  the  affidavit  herein  men- 
tioned is  made  by  any  guardian  it  shall  be  accompanied  by  a 
certified  copy  of  the  letters  of  guardianship  issued  to  such 
guardian  attached  to  a  certificate  of  the  clerk  of  the  court 
having  appointed  such  guardian  to  the  efl'ect  that  the  said 
letters  of  guardianship  have  not  been  revoked.  [Amendment 
approved  June  3,  1915;  Stats.  1915,  p.  1139.     Also  amended 


858  APPENDIX,  §  19 

April  21,  1911 ;  Stats.  1911,  p.  1003 ;  May  31,  1913 ;  Stats.  1913, 
p.  335.] 

Stockholders,  list  of  to  be  accessible. 

Sec.  17.  Every  bank  novN'  in  existence  or  hereafter  organized 
shall  keep  in  its  offices,  in  a  place  accessible  to  the  stockhold- 
ers, depositors,  and  creditors  thereof,  and  for  their  use,  a  book 
containing  a  list  of  stockholders  in  such  corporation,  and  the 
number' of  shares  of  stock  held  by  each;  and  every  such  bank 
shall  keep  posted  in  its  office,  in  a  conspicuous  place,  acces- 
sible to  the  public  generally,  a  notice  signed  by  the  president 
or  secretary,  showing: 

1.  The  names  of  the  directors  of  such  bank. 

2.  The  number  and  the  par  value  of  the  shares  of  stock  held 
by  each  director. 

The  entries  on  such  book  and  such  notice  shall  be  made  and 
posted  within  twenty-four  hours  after  any  transfer  of  stock, 
and  shall  be  prima  facie  evidence  against  each  director  and 
stockholder  of  the  number  of  shares  of  stock  held  by  each. 

Partnership,  list  of. 

Sec.  18.      [Repealed  May  6,  1913;  Stats.  1913,  p.  146.] 

Capital;  deposit  liabilities.     Of  savings  banks. 

Sec.  19.  The  aggregate  of  paid-up  capital  together  with 
the  surplus,  of  every  commercial  bank,  must  equal  ten  per 
centum  of  its  deposit  liabilities;  such  deposit  liabilities  shall 
not  be  increased  Avhen  such  proportion  of  paid-up  capital  and 
surplus  is  wanting,  and  in  no  event  shall  said  paid-up  capital 
be  less  than  the  minimum  paid-up  capital  provided  by  this 
act ;  provided,  however,  that  the  aggregate  of  paid-up  capital 
and  surplus  of  every  savings  bank  having  a  capital  stock,  and 
the  reserve  fund  of  every  savings  bank  without  a  capital  stock, 
must  equal  the  following  percentages  of  its  deposit  liabilities : 

(a)  Ten  per  centum  of  any  amount  up  to  and  including 
two  million  dollars. 

(b)  Seven  and  one-half  per  centum  of  any  amount  in  excess 
of  two  million  dollars  up  to  and  including  five  million  dollars. 

(c)  Five  per  centum  of  any  amount  in  excess  of  five  million 
dollars  up  to  and  including  fifteen  million  dollars. 

(d)  Two  and  one-half  per  centum  of  any  amount  in  excess 
of  fifteen  million  dollars  up  to  and  including  forty  million 
dollars. 

(e)  One  per  centum  of  any  amount  in  excess  of  forty  million 
dollars. 

The  deposits  shall  not  be  increased  if  such  proportion  of 
paid-up  capital  and  surplus  or  reserve  fund  to  deposit  liabili- 
ties is  not  maintained.  [Amendment  approved  May  6,  1913 ; 
Stats.  1913,  p.  146.] 


§  20  BANKING.  859 

Reserves  of  commercial  banks.     Required  capital  and  surplus 
of  depositary.     Restoration  of  total  reserves. 

Sec.  20.  Every  commercial  bank  shall  maintain  total  re- 
serves against  its  aggregate  deposits,  exclusive  of  state,  county 
and  municipal  deposits  for  the  re-payment  of  Avhich  bonds 
have  been  deposited  as  security,  as  follows : 

1.  Eighteen  per  centum  of  such  deposits  if  such  bank  has 
its  principal  place  of  business  in  a  city  having  a  population 
of  one  hundred  thousand  or  over. 

2.  Fifteen  per  centum  of  such  deposits,  if  such  bank  is  lo- 
cated in  a  city  having  a  population  of  fifty  thousand  or  over 
and  less  than  one  hundred  thousand. 

3.  Twelve  per  centum  of  such  deposits  if  such  bank  is  lo- 
cated elsewhere  in  the  state. 

At  least  one-third  of  the  total  reserves  shall  be  maintained 
as  reserves  on  hand  and  shall  consist  of  gold  coin,  gold  bullion. 
United  States  gold  certificates  or  United  States  notes ;  in  addi- 
tion thereto,  at  least  one-sixth  of  the  total  reserves  shall  be 
maintained  as  reserves  on  hand  and  shall  consist  of  gold  coin, 
gold  bullion,  United  States  gold  certificates.  United  States 
notes  or  any  form  of  currency  authorized  by  the  laws  of  the 
United  States,  and  the  remainder  of  the  total  reserves  required 
by  the  provisions  of  this  section  shall  be  maintained  as  reserves 
on  deposit  or  as  reserves  on  hand;  such  reserves  on  hand  to 
consist  of  gold  coin,  gold  bullion,  United  States  gold  certifi- 
cates, United  States  notes  or  any  form  of  currency  authorized 
by  the  laws  of  the  United  States.- 

If  any  bank  shall  have  become  a  member  of  a  federal  reserve 
bank,  it  may  maintain  as  reserves  on  deposit  with  such  federal 
reserve  bank  such  portion  of  its  total  reserves  as  shall  be  re- 
quired of  members  of  such  federal  reserve  bank. 

If  any  bank  shall  not  maintain  the  total  reserves  required 
the  superintendent  of  banks  may  impose  a  penalty  upon  it, 
based  upon  the  length  of  time  such  encroachment  upon  its  total 
reserves  amounting  to,  one  per  centum  or  more  of  its  aggregate 
deposits  shall  continue,  at  the  following  rates : 

1.  At  the  rate  of  six  per  centum  per  annum  upon  any  such 
encroachment  not  exceeding  two  per  centum  of  such  deposits. 

2.  At  the  rate  of  eight  per  centum-  per  annum  upon  any 
additional  encroachment  in  excess  of  two  and  not  exceeding 
three  per  centum  of  such  deposits. 

3.  At  the  rate  of  ten  per  centum  per  annum  upon  any  addi- 
tional encroachment  in  excess  of  three  and  not  exceeding  four 
per  centum  of  such  deposits. 

4.  At  the  rate  of  twelve  per  centum  per  annum  upon  apy 
additional  encroachment  in  excess  of  four  per  centum  of  such 
deposits. 


860  APPENDIX.  §  20 

The  superintendent  of  banks  shall,  in  his  discretion,  upon 
the  nomination  of  any  bank,  designate  a  depositary  or  deposi- 
taries for  the  reserves  on  deposit  of  such  bank  provided  for  by 
this  act.  Except  as  otherwise  provided  in  this  section,  such 
depositary  shall  be  a  bank  or  national  banking  association  lo- 
cated in  this  state.  Every  reserve  depositary,  which  has  its 
principal  place  of  business  in  a  judicial  township  or  in  a  city 
located  in  this  state  in  which  the  population  is  less  than  fifty 
thousand,  shall  have  at  all  times  as  its  total  reserves  an  amount 
equal  to  the  total  reserves  required  by  the  provisions  of  this 
section  for  every  bank  which  has  its  principal  place  of  business 
in  a  city  having  a  population  of  fifty  thousand  or  over  and 
less  than  one  hundred  thousand.  But  no  bank  or  national 
banking  association  shall  hereafter  be  designated  as  a  deposi- 
tary of  any  such  reserves  unless  it  shall  have  a  combined 
capital  and  surplus  of  not  less  than  the  following  amounts : 

1.  Two  hundred  fifty  thousand  dollars,  if  located  in  a  city 
which  has  a  population  of  three  hundred  thousand  or  over; 

2.  Two  hundred  thousand  dollars,  if  located  in  a  city  Avhich 
has  a  population  of  one  hundred  thousand  or  over  and  less 
than  three  hundred  thousand ; 

3.  One  hundred  fifty  thousand  dollars,  if  located  in  a  city 
which  has  a  population  of  fifty  thousand  or  over  and  less  than 
one  hundred  thousand; 

4.  One  hundred  thousand  dollars,  if  located  elsewhere  in  the 
state. 

Such  depositary  may  also  be  a  banking  corporation  with  a 
capital  and  surplus  of  one  million  dollars  or  more,  located  in 
the  cities  of  New  York,  Chicago,  Boston,  St.  Louis,  or  Phila- 
delphia. 

If  the  total  reserves  of  any  bank  shall  be  less  than  the 
amount  required  by  this  section,  such  bank  shall  not  increase 
its  liabilities  by  making  any  new  loans  or  discounts,  otherwise 
than  by  discounting  bills  of  exchange  on  sight,  or  by  paying 
any  dividends  from  profits  until  the  full  amount  of  its  total 
reserves  has  been  restored.  The  superintendent  of  banks  may 
notify  any  bank  whose  total  reserves  shall  be  below  the  amount 
herein  required,  to  restore  such  total  reserves ;  and,  if  it  shall 
fail  for  thirty  days  thereafter  to  restore  such  total  reserves, 
such  bank  shall  be  deemed  insolvent  and  may  be  proceeded 
against  under  the  provisions  of  this  act;  provided,  that  all 
deposits  of  money  herein  permitted  or  required  shall  comply 
with  the  provisions  of  section  fortj^-three  of  this  act. 

The  term  "reserves  on  hand,"  when  used  in  this  act,  means 
the  reserves  against  deposits  kept  in  the  vault  of  any  bank 
pursuant  to  the  provisions  of  this  act. 


§  21  BANKING.  861 

The  term,  "reserves  on  deposit,"  when  used  in  this  act, 
means  the  reserves  against  deposits  maintained  by  any  loank 
pursuant  to  this  act  in  reserve  depositaries,  or  in  a  federal 
reserve  bank  of  which  such  bank  is  a  member,  and  not  in 
excess  of  the  amount  authorized  by  this  act. 

The  term,  "total  reserves,"  Avhen  used  in  this  act,  means 
the  aggregate  of  reserves  on  hand  and  reserves  on  deposit 
maintained  pursuant  to  the  provisions  of  this  act. 

The  term,  "reserve  depositary,"  when  used  in  this  act,  means 
a  bank,  trust  company  or  banking  corporation  designated  b}^ 
the  superintendent  of  banks  on  the  nomination  of  the  de- 
positing bank  as  a  depositary  for  reserves  on  deposit. 
[Amendment  approved  June  3,  1915;  Stats.  1915,  p.  1107. 
Also  amended  April  21,  1911 ;  Stats.  1911,  p.  1909 ;  December 
18,  1911 ;  Stats.  1911,  Ex.  Sess.,  p.  2 ;  May  6.  1913 ;  Stats.  1913, 
p.  147.] 

Dividends.     Surplus    fund.     Charging-   loss   to    surplus.     De- 
positors' prior  claim. 

Sec.  21.  The  directors  of  any  bank  having  a  capital  stock 
m'ay,  at  certain  times,  and  in  such  manner  as  its  by-laws  pre- 
scribe, declare  and  pay  dividends  to  depositors  and  stockhold- 
ers of  so  much  of  the  profits  of  the  bank,  and  of  the  interest 
arising  from  the  capital,  surplus  and  deposits,  as  may  be  ap- 
propriated for  that  purpose  under  its  by-laws  or  under  its 
agreements  with  depositors,  but  every  such  bank  shall,  before 
the  declaration  of  any  such  dividend,  carry  at  least  one-tenth 
part  of  the  net  profits  of  the  stockholders  for  the  preceding 
half  year,  or  for  such  period  as  i«^covered  by  the  dividend,  to 
its  surplus,  until  such  surplus  shall  amount  to  twenty-five  per 
centum  of  its  paid-up  capital  stock.  The  whole  or  any  part  of 
such  surplus,  if  held  as  the  exclusive  property  of  the  stock- 
holders, may  at  any  time  be  converted  into  paicl  in  capital,  in 
which  event  such  surplus  shall  be  restored  in  the  manner  above 
provided  until  it  amounts  to  twenty-five  per  centum  of  the 
aggregate  paid-up  capital  stock.  Subject  to  the  provisions 
of  section  nineteen  of  this  act,  any ,  losses  sustained  by  any 
such  bank  in  excess  of  its  undivided  profits  may  be  charged 
to  and  paid  from  its  surplus,  in  which  event  such  surplus  shall 
be  restored  in  the  manner  above  provided,  to  the  amount  re- 
quired by  law ;  provided,  however,  that  any  bank  which  has 
invested  any  portion  of  its  surplus  in  its  bank  premises,  furni- 
ture and  fixtures,  vaults,  or  safe  deposit  vaults  and  boxes 
necessary  oi-  proper  to  carry  on  its  banking  business  shall  not 
be  permitted  to  charge  any  loss  to  that  portion  of  its  surplus 
80  invested.  A  larger  surplus  may  be  created  and  nothing 
herein   contained  shall  be  construed   as  prohibitory  thereof. 


862  APPENDIX.  •  §  23 

The  capital  and  assets  of  any  such  bank  are  a  security  to  de- 
positors and  stockholders,  depositors  having  the  priority  of 
security  over  stockholders.  [Amendment  approved  May  6, 
1913;  Stats.  1913,  p.  147.] 

Preferences.     Public  moneys.     Overdraft.     Bad  debt. 

Sec.  21a.  No  bank,  banker,  or  bank  officer,  shall  give  prefer- 
ence to  any  depositor  or  creditor  by  pledging  the  assets  of  the 
bank  as  collateral  security,  except  as  otherwise  authorized  by 
law ;  provided,  that  any  commercial  bank,  or  commercial  de- 
partment of  a  departmental  bank,  may  borrow  money  for  tem- 
porary purposes,  and  may  pledge  assets  of  said  commercial 
bank,  or  commercial  department  of  said  departmental  bank, 
not  exceeding  fifty  per  centum  in  excess  of  the  amount  bor- 
rowed, as  collateral  security  therefor;  provided,  that  any  pub- 
lic moneys,  or  postal  savings  moneys,  deposited  with  any  such  ■ 
bank  under  any  provision  of  law,  shall  not  be  construed  as 
"borrowed  money"  within  the  meaning  of  this  section.  No 
bank  shall  at  any  time,  without  permission  of  the  superintend- 
ent of  banks,  borrow  an  amount  exceeding  the  amount  of  its 
paid-up  capital  stock  and  surplus  at  such  time  actually  paid 
in  and  remaining  undiminished  by  losses  or  otherwise.  No 
bank  shall  make  partial  payments  upon  any  certificate  of  de- 
posit. In  no  case  shall  an  overdraft  of  more  than  ninety  days 
standing  be  allowed  as  an  asset  of  any  bank.  Any  debt  due 
to  any  commercial  bank,  on  which  interest  is  past  due  and 
unpaid  for  the  period  of  one  year,  unless  the  same  is  well 
secured,  and  is  in  process  of  collection,  shall  be  considered  a 
bad  debt  and  shall  be  charged^off  to  the  profit  and  loss  account 
at  the  expiration  of  that  time.  [New  section,  approved  Mav 
6,  1913;  Stats.  1913,  p.  148.] 

Commercial,  savings  and  trust  combination. 

Sec.  22.  Any  corjDoration  authorized  by  its  articles  of  in- 
corporation so  to  do,  may  combine  the  business  of  a  commer- 
cial bank  and  savings  bank  and  trust  company,  or  any  one  or 
more  or  all  of  them ;  provided,  that  no  corporation  authorized " 
to  transact  a  trust  business  and  Avhich  is  also  organized  to 
engage  in  the  business  of  title  insurance,  shall  engage  in  or 
combine  the  business  of  a  commercial  bank  or  savings  bank. 
[Amendment  approved  May  6,  1913;  Stats.  1913,  p.  149.] 

Consent  to  do  departmental  business.     Capital  stock. 

Sec.  23.  When  a  bank  desires  to  do  a  departmental  business, 
it  shall  first  obtain  the  consent  of  the  superintendent  of  banks, 
and  in  its  application  therefor,  file  a  statement  making  a 
segregation  of  its  capital  and  surplus  for  each  department. 
Such  capital  and  surplus,  when  so  apportioned  and  approved 


§  23  BANKING.  863 

by  the  superintendent  of  banks,  shall  be  considered  and 
treated  as  the  separate  capital  and  surplus  of  such  department 
as  if  each  department  was  a  separate  bank.  Thereafter  a 
bank  may,  from  time  to  time,  with  the  previous  consent  and 
approval  of  the  superintendent  of  banks  and  subject  to  the 
provisions  of  section  nineteen  of  this  act,  change  any  segrega- 
tion and  apportionment  of  capital  and  surplus  previously 
made  and  make  a  new  segregation  and  apportionment  of  its 
capital  and  surplus.  Every  bank  hereafter  organized  doing 
a  departmental  business  shall  have  paid  up,  in  cash,  capital 
stock  as  follows : 

Place  of  5,000  persons. 

(a)  In  any  locality  in  which  the  population  does  not  exceed 
five  thousand  persons,  not  less  than  twenty-five  thousand  dol- 
lars if  it  transacts  both  a  commercial  and  savings  business, 
or  not  less  than  one  hundred  twenty-five  thousand  dollars,  if 
it  transacts  both  a  commercial  and  trust  business,  or  not  less 
than  one  hundred  twenty-five  thousand  dollars  if  it  transacts 
both  a  savings  and  trust  business,  and  not  less  than  one  hun- 
dred twenty-five  thousand  dollars  if  it  transacts  a  commercial, 
savings  and  trust  business. 

More  than  5,000  persons. 

(b)  In  any  city  in  which  the  population  is  more  than  five 
thousand  persons,  but  does  not  exceed  twenty-five  thousand 
persons,  not  less  than  fifty  thousand  dollars  if  it  transacts 
both  a  commercial  and  savings  business,  or  not  less  than  one 
hundred  fifty  thousand  dollars  if  it  transacts  both  a  commer- 
cial and  trust  business,  or  not  less  than  one  hundred  fifty  thou- 
sand dollars  if  it  transacts  both  a  savings  and  trust  business, 
and  not  less  than  one  hundred  fifty  thousand  dollars  if  it 
transacts  a  commercial,  savings  and  trust  business. 

More  than  25,000  persons. 

(c)  In  any  city  in  which  the  population  is  more  than  twenty- 
five  thousand  persons  but  does  not  exceed  one  hundred  thou- 
sand persons,  not  less  than  one  hundred  thousand  dollars,  if  it 
transacts  both  a  commercial  and  savings  business,  or  not  less 
than  two  hundred  thousand  dollars  if  it  transacts  both  a  com- 
mercial and  trust  business,  or  not  less  than  two  hundred  thou- 
sand dollars  if  it  transacts  both  a  savings  and  trust  business, 
and  not  less  than  two  hundred  thousand  dollars  if  it  transacts 
a  commercial,  savings  and  trust  business. 

More  than  100,000  persons. 

(d)  In  any  city  in  which  the  population  is  more  than  one 
hundred  thousand  persons  but  does  not  exceed  two  hundred 
thousand  persons,  not  less  than  two  hundred  thousand  dollars, 


864  APPENDIX.  §23 

if  it  transacts  both  a  commercial  and  savings  business,  or  not 
less  than  four  hundred  thousand  dollars  if  it  transacts  both  a 
commercial  and  trust  business,  or  not  less  than  four  hundred 
thousand  dollars  if  it  transacts  both  a  savings  and  trust  busi- 
ness, and  not  less  than  'four  hundred  thousand  dollars  if  it 
transacts  a  commercial,  savings  and  trust  business. 

More  than  200,000  persons. 

(e)  In  any  city  in  Avhich  the  population  exceeds  two  hun- 
dred thousand  persons,  not  less  than  three  hundred  thousand 
dollars  if  it  transacts  both  a  commercial  and  savings  business, 
or  not  less  than  five  hundred  thousand  dollars  if  it  transacts 
both  a  commercial  and  trust  business,  or  not  less  than  five 
hundred  thousand  dollars  if  it  transacts  both  a  savings  and  a 
trust  business,  and  not  less  than  five  hundred  thousand  dollars 
if  it  transacts  a  commercial,  savings  and  ti'ust  business. 

Not  applicable  to  existing"  banks.     May  not  decrease  capital. 
Census. 

The  foregoing  classification  shall  not  apply  to  any  bank 
already  in  existence  which  has  received  from  the  superintend- 
ent of  banks  a  certificate  to  do  a  banking  business ;  nor  to  any 
bank  the  location  of  which  shall  have  been  included  by  annexa- 
tion or  consolidation  within  the  limits  of  a  city  of  a  class  re- 
quiring a  larger  capitalization,  but  no  bank  thus  excepted  shall 
be  permitted  to  establish  any  ncAV  branch  office  as  provided  in 
section  nine  of  this  act  or  to  remove  its  place  of  business  from 
the  original  limits  of  the  city  or  township  wherein  it  was 
located  prior  to  such  annexation  or  consolidation  until  it  shall 
have  the  capital  required  of  banks  in  such  city  not  within  said 
exception.  Such  excepted  banks  may  not  in  any  ease  decrease 
their  capital  stock  but  may  increase  the  same  in  the  manner 
provided  by  law  to  an  amount  either  greater  or  less  than  that 
required  of  banks  in  such  city  not  within  said  exception.  The 
capital  stock  referred  to  herein  shall  be  increased  from  time 
to  time  and  to  the  same  extent  as  provided  for  in  section  nine- 
teen of  this  act.  For  the  purposes  of  this  act.  the  population 
shown  and  determined  by  the  last  preceding  federal  census,  or 
any  subsequent  census  compiled  and  certified  under  any  law  of 
this  state,  shall  be  deemed  to  be  the  population  of  any  city  in 
which  any  such  bank  is  to  be  organized.  If  the  principal  place 
of  business  of  any  bank  so  organized  is  located  outside  of  the 
corporate  limits  of  any  city,  then  the  population  of  that  portion 
of  the  judicial  township  in  which  said  bank  is  to  have  its  prin- 
cipal place  of  business,  Avhich  is  not  included  within  the  bound- 
aries of  any  municipal  corporation,  as  such  population  is  shown 
and  determined  by  such  federal  or  subsequent  official  census, 
shall  be  the  basis  for  classification  under  the  provisions  of  this 


§  26  BANKING.  865 

act.     [Amendment  approved  May  6,  1913 ;  Stats.  1913,  p.  149. 
Also  amended  April  21,  1911;  Stats.  1911,  p.  1010.] 

Certificate  for  each  department  required.     Fee. 

Sec.  24.  Every  bank,  before  it  commences  to  do  business  or 
before  it  opens  a  new  department  and  commences  to  transact 
business  in  or  under  such  new  department,  shall  obtain  the  cer- 
tificate of  the  superintendent  of  banks  for  the  opening  of  each 
of  the  departments  specified.  Each  certificate  herein  provided 
for  shall  be  given  when  the  superintendent  shall,  by  the  exam- 
ination required  by  this  act,  have  satisfied  himself  that  the 
proper  amount  of  cash  has  been  paid  in  as  capital  and  the  pro- 
visions of  this  act  complied  with.  The  applicant  shall  pay  for 
the  certificate  for  each  department  a  fee  of  fifty  dollars. 
[Amendment  approved  May  6,  1913;  Stats.  1913,  p.  150.] 

Department  money  reserve.     Deposits,  transfer  of  to  other  de- 
partments. 

Sec.  25.  Every  bank  shall  maintain  for  each  department 
total  reserves  equal  in  amount  to  that  required  by  this  act  for 
the  respective  business  conducted,  and  shall  keep  separate  and 
distinct  the  total  reserves  of  any  department  from  that  of  any. 
other  department;  and  all  deposits  made  with  other  banks, 
whether  temporary  or  otherwise,  shall  be  assets  of  the  re- 
spective departments  by  which  they  were  made,  and  shall  be 
so  carried  on  the  books  of  such  other  banks,  and  shall  be  re- 
paid only  upon  the  order  of  the  department  to  whose  credit 
they  stand.  No  department  shall  receive  deposits  from  any 
other  department  of  the  same  corporation;  except  that  a  trust 
department,  in  proper  cases,  may  make  deposits  of  trust  or 
any  other  funds  under  its  control  with  the  savings  department 
of  the  same  corporation  and  may,  upon  order,  previously  ob- 
tained, of  any  court  having  jurisdiction  of  any  trust  or  fund, 
make  deposits  of  moneys  belonging  thereto  with  the  com- 
mercial department  of  the  same  corporation ;  provided,  how- 
ever, that  any  bank  having  departments  shall  have  the  right  to 
sell  and  transfer  any  bonds,  securities  or  loans  from  one  de- 
partment to  another  upon  receipt  of  the  actual  value  thereof, 
if  such  bonds,  securities  or  loans  are,  under  the  provisions  of 
this  act,  a  legal  investment  for  the  department  purchasing  the 
same.  [Amendment.  Approved  June  3,  1915;  Stats.  1915, 
p.  1109.     Also  amended  ]\ray  6,  1913;  Stats.  1913,  p.  151.] 

Books  of  account  to  be  kept  separate. 

Sec.  26.  Every  bank  having  different  departments  shall 
keep  separate  books  of  account  for  each  department  of  its  busi- 
ness, and  shall  be  governed  as  to  all  deposits,  reserves,  invest- 
ments and  transactions  relating  to  each  department  by  the 

Civ.  Code — 55 


866  APPEJNDix.  §  29 

provisions  in  this  act  specifically  provided  for  the  respective 
kind  of  business. 

It  shall  keep  all  investments  relating  to  the  savings  depart- 
ment entirely  separate  and  apart  from  the  investments  of  its 
other  department  or  departments. 

Every  bank  shall  conduct  the  business  of  all  its  departments 
intone  building,  or  in  adjoining  buildings,  and  shall  keep  en- 
tirely separate  and  apart  in  each  department  the  cash,  securi- 
ties and  property  belonging  to  such  department,  and  shall  not 
mingle  the  cash,  securities  and  property  of  one  department 
with  that  of  another. 

Depositors,  security  for. 

Sec.  27.  All  money  and  assets  belonging  to  each  depart- 
ment, whether  on  hand  or  with  other  banks,  and  the  invest- 
ments made,  shall  be  held  solely  for  the  repajnnent  of  the 
depositors  and  other  claimants  of  each  such  department,  as 
herein  provided,  until  all  depositors  and  other  claimants  of 
each  such  department  shall  have  been  paid,  and  the  overplus 
then  remaining  shall  be  applied  to  any  other  lialiilities  of  such 
bank.     [Amendment  approved  May  6, 1913  ;  Stats.  1913,  p.  151..] 

Signs  must  show  kind  of  bank.     "Branch." 

Sec.  28.  Every  bank  in  this  state  must,  on  all  its  window 
signs  and  in  advertising,  and  on  letterheads  and  other  station- 
ery on  which  its  business  is  transacted,  use  the  word  "savings'" 
if  it  conducts  a  savings  business,  or  the  word  "trust"  if  it  con- 
ducts a  trust  business,  and  the  word  "commercial"'  if  it  con- 
ducts a  commercial  business.  Every  bank,  which  maintains 
a  branch  office,  must  on  all  window  signs  and  in  advertising, 
and  on  letterheads  and  other  stationery  on  which  the  business 
of  said  branch  office  is  transacted,  use  in  letters  and  type,  equal 
in  prominence  to  that  used  in  its  corporate  name,  the  word 
"branch."  [Amendment  approved  June  3,  1915;  Stats.  1915, 
p.  1110.     Also  amended  May  6,  1913 ;  Stats.  1913,  p.  151.] 

Non-stock  corporations  heretofore  created. 

Sec.  29.  Every  corporation  heretofore  created  under  the 
laws  of  this  state,  doing  a  banking  business  therein,  and  wliich 
has  no  capital  stock,  may  elect  to  have  a  capital  stock,  and 
may  issue  certificates  of  stock  therefor,  in  the  same  manner  as 
corporations  formed  under  the  provisions  of  part  IV.  title  I. 
chapter  I,  article  I,  of  the  Civil  Code,  relating  to  the  formation 
of  corporations;  provided,  that  no  such  corporation  shall  use 
or  convert  any  moneys  or  funds  theretofore  belonging  to  it. 
or  under  its  control,  into  capital  stock ;  but  such  funds  or 
moneys  must  be  held  and  managed  only  for  the  purposes  and 
in   the   manner   for  which   they   were   created.     Before   such 


§31  BANKING.  867 

change  is  made,  a  majority  of  the  members  of  such  corpora- 
tion present  at  a  meeting  called  for  the  purpose  of  consider- 
ing the  proposition  whether  it  is  best  to  have  a  capital  stock, 
its  amount,  and  the  number  of  shares  into  which  it  shall  be 
divided,  must  vote  in  favor  of  having  a  capital  stock,  fix  the 
amount  thereof,  and  the  number  of  shares  into  which  it  shall 
be  divided.  Notice  of  the  time  and  the  place  of  holding  such 
meeting,  and  its  object,  must  be  given  by  the  president  of  such 
corporation  by  mailing  notice  of  such  meeting  to  each  member 
of  such  corporation  at  his  last  known  postoffice  address  at 
least  ten  days  prior  to  the  day  fixed  for  such  meeting,  and  by 
publication  in  some  newspaper  printed  and  published  in  the 
county,  or  city  and  county,  in  which  the  principal  place  of 
business  of  the  corporation  is  situated,  at  least  once  a  week  for 
three  consecutive  weeks  prior  to  the  holding  of  the  meeting. 
A  copy  of  the  proceedings  of  this  meeting,  giving  the  number 
of  persons  present,  the  votes  taken,  the  notice  calling  the  meet- 
ing, the  proof  of  its  publication,  the  amount  of  capital  actually 
subscribed  and  by  whom,  all  duly  certified  by  the  president 
and  secretary  of  the  corporation,  must  be  filed  in  the  office  of 
the  secretary  of  state  and  clerk  of  the  county  where  the  articles 
of  incorporation  are  filed.  Thereafter  such  corporation  is  pos- 
sessed of  all  the  rights  and  powers  and  is  subject  to  all  the 
obligations,  restrictions  and  limitations,  as  if  ithad  been  orig- 
inally created  with  a  capital  stock. 

Safe  deposits. 

Sec.  30.  Any  bank  may  conduct  a  safe-deposit  department, 
but  shall  not  invest  more  than  one  tenth  of  its  capital  and  sur- 
plus in  such  safe-deposit  department. 

Sale  of  business.     Conditions  of  sale  stated.     Rights  of  cred- 
itors.    Publication  of  notice. 

Sec.  31.  Any  bank  may  sell  the  whole  of  its  business  or  the 
whole  of  the  business  of  any  of  its  departments  to  any  other 
bank  which  may  purchase  such  business  after,  obtaining  the 
consent  of  the  stockholders  of  the  selling  and  of  the  purchas- 
ing banks  holding  of  record  at  least  two-thirds  of  the  issued 
capital  stock  of  each  of  such  corporations;  such  consent  to  be 
expressed  either  in  writing  executed  and  acknowledged  by 
such  stockholders  and  attached  to  the  instrument  of  sale,  or 
to  a  copy  thereof,  or  by  vote  at  a  stockholders'  meeting  of  each 
of  such  banks  called  for  that  purpose.  The  selling  and  pur- 
chasing banks  must  for  such  purposes  enter  into  an  agreement 
of  sale  and  purchase,  which  agreement  shall  contain  all  the 
terms  and  conditions  connected  with  such  sale  and  purchase. 
Such  agreement  shall  contain  proper  provision  for  the  pay- 


868  APPENDIX.  §  31a 

ment  of  liabilities  of  the  selling  bank  or  of  the  department 
sold,  and  in  this  particular  shall  be  subject  to  the  approval 
of  the  superintendent  of  banks;  and  shall  not  1  e  valid  until 
such  approval  is  obtained.  Such  agreement  may  contain  pro- 
visions for  the  transfer  of  all  deposits  to  the  purchasing  bank, 
subject,  however,  to  the  right  of  every  depositor  of  the  selling 
bank  to  withdraw  his  deposit  in  full  amount  on  demand  after 
such  transfer,  irrespective  of  the  terms  under  which  it  was 
deposited  with  the  selling  bank.  The  rights  of  creditors  of  the 
selling  bank  shall  not  in  any  manner  be  impaired  by  any  such 
sale,  nor  shall  any  liability  or  obligation  for  the  payment  of 
any  money  due  or  to  become  due,  or  any  claim  or  demand,  in 
any  manner,  or  for  any  cause  existing  against  such  selling  bank 
or  against  any  stockholder  thereof,  be  in  any  manner  released 
or  impaired,  and  all  the  rights,  obligations  and  relations  of  all 
the  parties,  creditors,  depositors,  trustees  and  beneficiaries  of 
trusts  shall  remain  unimpaired  by  the  sale,  but  such  bank  to 
which  the  other  shall  sell  all  its  business  or  all  the  business  of 
any  of  its  departments,  shall  succeed  to  all  such  relations,  ob- 
ligations, trusts  and  liabilities  and  be  held  liable  to  pay  and 
discharge  all  such  debts  and  liabilities  and  to  perform  all  such 
trusts  of  the  selling  bank  in  the  same  manner  as  if  such  bank 
to  which  the  other  had  sold  had  itself  incurred  the  obligation 
or  liability  or  assumed  the  relation  of  trust,  and  the  stockholders 
of  the  respective  corporations  so  entering  into  such  agreement 
shall  continue  subject  to  all  the  liabilities,  claims  and  demands 
existing  against  them  as  such  at  or  before  such  sale.  Immedi- 
ately after  the  execution  of  such  agreement  of  sale  and  pur- 
chase notice  thereof  shall  be  published  for  at  least  four 
successive  weeks  in  a  newspaper  in  each  of  the  counties  of  the 
state  in  which  either  of  such  banks  shall  have  its  principal 
place  of  business ;  provided,  however,  that  no  action  can  be 
brought  against  such  selling  bank  or  any  of  its  stockholders  on 
account  of  any  deposits  so  transferred  after  the  expiration  of 
one  year  from  the  last  day  of  publication  herein  required.  An 
affidavit  showing  such  publication  shall  be  filed  in  the  office  of 
the  superintendent  of  banks  within  ten  days  after  the  last  pub- 
lication thereof.  The  affairs  of  such  selling  bank,  or  selling 
department  of  a  bank,  shall  remain  subject  to  the  provisions  of 
this  act.  [Amendment  approved  Mav  6,  1913 ;  Stats.  1913, 
p.  151.] 

Consolidation  of  banks.     Procedure. 

Sec.  31a.  Any  bank  incorporated  under  the  laws  of  this 
state  may  consolidate  with  one  or  more  banks  incorporated 
under  the  laws  of  this  state,  its  capital  stock,  properties,  trusts, 
claims,  demands,  contracts,  agreements,  obligations,  debts,  lia- 


§  31a  BANKING.  ■  869 

bilities,  and  assets  of  every  kind  and  description,  upon  such 
terms  and  in  such  manner  as  may  be  agreed  upon  by  their  re- 
spective boards  of  directors,  a  copy  of  which  agreement  must 
be  filed  in  the  office  of  the  superintendent  of  banks;  provided, 
that  such  agreement  shall  be  subject  to  the  approval  of  the 
superintendent  of  banks  and  shall  not  be  valid  until  such  ap- 
proval be  obtained;  provided,  further,  that  no  such  consolida- 
tion shall  take  effect  until  such  agreement  shall  have  been 
ratified  and  confirmed  in  writing  by  the  stockholders  of  the 
respective  banks  holding  of  record  at  least  two-thirds  of  the 
issued  capital  stock  of  their  respective  banks,  or  such  agree- 
ment may  be  submitted  to  the  stockholders  of  each  of  such 
corporations  at  a -meeting  thereof  to  be  called  upon  notice 
specifying  the  time,  place  and  object  thereof,  addressed  to  each 
stockholder  at  his  last  known  postoffice  address  and  deposited 
in  the  postoffice,  postage  prepaid,  at  least  two  weeks  prior  to 
the  date  fixed  for  said  meeting,  and  published  for  at  least  two 
successive  weeks,  prior  to  the  date  of  said  meeting,  in  a  news- 
paper in  each  of  the  counties  of  the  state  in  which  any  of  such 
banks  shall  have  its  principal  place  of  business,  and  if  such 
agreement  shall  be  approved  at  each  of  such  meetings  of  the 
respective  stockholders  separately  by  the  vote  or  liallot  of  the 
stockholders  owning  at  least  two-thirds  of  the  stock  of  each 
such  bank,  the  same  shall  be  the  agreement  of  such  banks.  In 
case  of  such  consolidation  "articles  of  incorporation  and  con- 
solidation" must  be  prepared,  setting  forth : 

First — -The  name  of  the  new  corporation ; 

Second — The  purpose  for  which  it  is  formed ; 

Third — The  place  where  its  principal  business  is  to  be  trans- 
acted ; 

Fourth — The  term  for  which  it  is  to  exist,  which  shall  not 
exceed  fifty  years ; 

Fifth — The  number  of  its  directors  (which  shall  not  be  less 
than  three)  and  the  names  and  residences  of  the  persons  ap- 
pointed to  act  as  such  until  their  successors  are  elected  and 
qualified ; 

Sixth — The  amount  of  its  capital  stock  and  the  number  of 
shares  into  which  it  is  divided ; 

Seventh — The  amount  of  stock  actually  subscribed,  and  by 
whom ; 

Eighth — The  names  of  the  constituent  corporations. 

Said  articles  of  incorporation  and  consolidation  must  be 
signed  and  countersigned  by  the  president  and  secretary  of 
each  constituent  corporation  and  sealed  with  their  corporate 
seals.  There  must  be  annexed  thereto  the  approval  of  the 
superintendent  of  banks  and  memoranda  of  the  ratification  and 
confirmation  thereof  by  the  stockb  ciders  of  each  constituent 


870  APPENDIX.  §  31a 

corporation,  which  must  be  respectively  signed  and  acknowl- 
edged by  stockholders  representing  at  least  two-thirds  of  the 
capital  stock  of  their  respective  corporations.  When  com- 
pleted as  aforesaid  said  articles  mnst  be  filed  in  the  office  of 
the  county  clerk  of  the  county  in  which  is  located  the  principal 
place  of  luTsiness  of  the  new  corporation,  and  a  copy  of  the 
articles  of  incorporation  and  consolidation  certified  by  such 
county  clerk  must  be  filed  in  the  office  of  the  secretary  of  state, 
and  a  copy  of  the  articles  of  incorporation  and  consolidation 
certified  by  said  secretary  of  state  must  be  filed  in  the  office 
of  the  superintendent  of  banks,  and  also  in  the  office  of  the 
county  clerk  of  any  county  in  which  were  filed  the  original 
articles  of  incorporation  of  either  of  the  constituent  corpora- 
tions, and  thereupon  each  constituent  corporation  named 
therein  must  be  deemed  and  held  to  have  become  extinct  in  all 
courts  and  places,  and  said  new  corporation  must  be  deemed 
and  held  in  all  courts  and  places  to  have  succeeded  to  all  their 
several  capital  stocks,  properties,  trusts,  claims,  demands,  eon- 
tracts,  agreements,  assets,  choses.  and  rights  in  action  of  every 
kind  and  description,  both  in  law  and  in  equity,  and  to  be  en- 
titled to  possess,  enjoy,  and  enforce  the  same  and  every  thereof, 
as  fully  and  completely  as  either  and  every  of  its  constituents 
might  have  done  had  no  consolidation  taken  place.  Said  con- 
solidated or  new  corporation  must  also,  in  all  courts  and  places, 
be  deemed  and  held  to  have  become  subrogated  to  its  several 
constituents  and  each  thereof,  in  respect  to  all  their  contracts 
and  agreements  with  other  parties,  and  all  their  debts,  obliga- 
tions, and  liabilities,  of  every  kind  and  nature,  to  any  persons, 
corporation,  or  bodies  politic,  whomsoever,  or  whatsoever,  and 
said  new  corporation  must  sue  and  be  sued  in  its  own  name 
in  any  and  every  case  in  which  any  or  either  of  its  constituents 
might  have  sued  or  might  have  been  sued  at  law  or  in  equity 
had  no  such  consolidation  been  made.  Nothing  in  this  section 
contained  shall  be  construed  to  impair  the  obligation  of  any 
contract  to  which  any  of  such  constituents  were  parties  at  the 
date  of  such  consolidation.  All  such  contracts  may  be  en- 
forced by  action  or  suit,  as  the  case  may  be.  against  the  con- 
solidated corporation,  and  satisfaction  obtained  out  of  the 
property  which,  at  the  date  of  the  consolidation,  belonged  to 
the  constituent  which  was  a  party  to  the  contract  in  action  or 
suit,  as  Avell  as  out  of  an}^  other  property-  belonging  to  the  con- 
solidated corporation,  and  the  stockholders  of  each  constituent 
corporation  so  entering  into  such  agreement  shall  continue  sub- 
ject to  all  the  liabilities,  claims  and  demands  existing  against 
them  at  or  before  such  consolidation  to  the  same  extent  as  if 
the  same  had  not  been  made.  The  right  of  said  new  corpora- 
tion to  increase  or  decrease  its  capital  stock,  to  change  the 


§  35  BANKING.  871 

number  of  its  directors,  to  amend  its  articles  of  incorporation, 
to  change  its  principal  place  of  business,  or  its  name,  or  to  effect 
any  other  organic  change  shall  be  governed  by  the  general 
corporation  laws  of  this  state  and  by  the  bank  act,  and  the 
procedure  to  effect  any  such  change  shall  be  that  defined  by 
the  general  corporation  laws  and  the  bank  act.  [New  section 
approved  May  6,  1913;  Stats.  1913,  p.  152.] 

Trust  funds. 

Sec.  32.  Any  bank  receiving  trust  funds  in  accordance  with 
the  provisions  of  this  act  relating  to  trust  companies  must  not 
mingle  such  trust  funds  with  the  other  assets  of  the  corpora- 
tion, except  as  otherwise  provided  in  section  twenty-five  of 
this  act,  and  such  funds  shall  not  be  carried  or  counted  as  any 
part  of  the  total  reserves  provided  for  in  this  act.  The  officers 
of  any  bank  who  knowingly  violate  or  consent  to  the  violation 
of  this  provision  shall  be  guilty  of  a  felony.  [Amendment. 
Approved  June  3,  1915 ;  Stats.  1915,  p.  1110.  Also  amended 
May  6,  1913;  Stats.  1913,  p.  155.] 

Officers  not  to  borrow  funds. 

Sec.  33.  [Amended  April  21,  1911;  Stats.  1911,  p.  1011. 
Repealed  May  6,  1913;  Stats.  1913,  p.  155.] 

Capital  stock,  purchase  of. 

Sec.  34.  No  bank  shall  purchase  or  invest  its  capital  or  sur- 
plus or  money  of  its  depositors,  or  any  part  of  either,  in  shares 
of  its  own  capital  stock ;  nor  loan  its  capital  or  surplus  or  the 
money  of  its  depositors,  or  any  part  of  either,  on  shares  of  its 
own  capital  stock,  unless  such  purchase  or  loan  shall  be  neces- 
sary to  prevent  loss  to  such  bank  on  debts  previously  con- 
tracted in  good  faith.  Every  person  or  corporation  violating 
any  provision  of  this  section  shall  forfeit  to  the  people  of  the 
state  twice  the  nominal  amount  of  such  stock.  [Amendment 
approved  May  6,  1913;  Stats.  1913,  p.  1,55.] 

Officer  not  to  sell  notes  to  bank. 

Sec.  35.  No  director,  or  officer,  or  employee,  or  controlling 
stockholder  of  any  bank  shall,  directly  or  indirectly,  for  his 
own  account,  for  himself,  or  as  the  partner  or  agent  of  others, 
sell  or  transfer,  or  cause  to  be  sold  or  transferred  to  the  bank 
of  which  he  is  a  director,  officer,  employee,  or  controlling 
stockholder,  any  note  or  bond  secured  by  any  mortgage  or  trust 
deed  on  real  estate  or  any  contract  arising  from  the  sale  of  real 
estate  in  which  said  director,  or  officer,  or  employee,  or  con- 
trolling stockholder  is  personally  or  financially  interested,  with- 
out the  consent  in  writing  of  the  superintendent  of  banks. 
Any  director,  or  officer,  or  employee,  or  controlling  stockholder 


872  APPENDIX.  §  38 

of  any  bank  who  knowingly  violates  or  consents  to  the  viola- 
tion of  this  provision  shall  be  guilty  of  a  felony.  [Amendment 
approved  May  6,  1913.  Stats.  1913.  p.  155.  Also  amended 
April  21,  1911;  Stats.  1911,  p.  1011.] 

Bonds,  purchase  of. 

Sec.  36.  No  commercial  bank  receiving  deposits  of  money 
shall  purchase  or  agree  to  purchase  any  bond  issue  in  excess  of 
five  per  centum  of  its  assets,  except  bonds  of  the  United  States, 
of  the  State  of  California,  of  the  counties,  cities  and  counties, 
cities  or  school  districts  of  this  state,  or  bonds  of  any  irrigation 
district  such  as  are  legal  for  investment  by  savings  banks. 
[Amendment  approved  June  3,  1915;  Stats.   1915,  p.   1110.] 

Investment  in  capital  stock  of  corporations. 

Sec.  37.  No  bank  shall  purchase  or  invest  its  capital  or  sur- 
plus or  money  of  its  depositors,  or  any  part  of  either,  in  the 
capital  stock  of  any  corporation  unless  the  purchase  or- acquisi- 
tion of  such  capital  stock  shall  be  necessary  to  prevent  loss  to 
the  bank  on  an  obligation  owned  or  on  a  debt  previously  con- 
tracted in  good  faith.  Any  capital  stock  so  purchased  or  ac- 
quired shall  be  sold  by  such  bank  within  six  months  there- 
after if  it  can  be  sold  for  the  amount  of  the  claim  of  such  bank 
against  it ;  and  all  capital  stock  thus  purchased  or  acquired 
must  be  sold  for  the  best  price  obtainable  by  said  bank  within 
one  year  after  such  purchase  or  acquisition.  Every  person  or 
corporation  violating  any  provision  of  this  section  shall  forfeit 
to  the  people  of  the  state  twice  the  nominal  amount  of  such 
stock.  [Amendment  approved  June  3,  1915 ;  Stats.  1915, 
p.  1111.     Also  amended  May  6,  1913;  Stats.  1913,  p.  155.] 

Penal  liabilities  of  directors  and  employees. 

Sec.  38.  A  director,  officer,  agent  or  employee  of  any  bank 
who, 

First — Ivnowingly  receives  or  possesses  himself  of  any  of  its 
property  otherwise  than  in  payment  for  a  .just  demand,  and 
with  intent  to  defraud,  omits  to  make  or  to  cause  or  direct  to 
be  made  a  full  and  true  entry  thereof  in  its  books  and  accounts ; 

Second — Concurs  in  omitting  to  make  any  material  entry 
thereof ;  or. 

Third — Knowingly  concurs  in  making  or  publishing  any  writ- 
ten report,  exhibit  or  statement  of  its  affairs  or  pecuniary  con- 
dition containing  any  material  statement  which  is  false :  or. 

Fourth — Having  the  custod}'  or  control  of  its  liooks,  willfully 
refuses  or  neglects  to  make  any  proper  entry  in  the  books  of 
such  corporation  as  required  by  law.  or  to  exhibit  or  allow  the 
same  to  be  inspected  and  extracts  to  be  taken  therefrom  by  the 


§  42  BANKING.  873 

siiperintendeut  of  banks,  his  chief  deputy  or  any  of  his  exam- 
iners, shall  be  guilty  of  a  felony. 

Officer  may  not  overdraw  account. 

Sec.  39.  Any  officer,  director,  agent,  teller,  clerk  or  em- 
ployee of  any  bank  who  either, 

First — Knowingly  overdraws  his  account  with  such  bank,  and 
thereby  obtains  the  money,  notes  or  funds  of  any  such  bank ;  or, 

Second — Asks  or  receives  or  consents  or  agrees  to  receive  any 
commission,  emolument,  gratuity  or  reward,  or  any  money, 
property  or  thing  of  value,  for  his  own  personal  benefit,  or  of 
personal  advantage,  for  procuring  or  endeavoring  to  procure 
for  any  person,  firm  or  corporation  any  loan  from,  or  the  pur- 
chase or  discount  of  any  paper,  note,  draft,  check  or  bill  of 
exchange,  by  such  bank,  or  for  permitting  any  person,  firm  or 
corporation  to  overdraw  any  account  with  such  bank,  is  guilty 
of  a  felony.  [Amendment  approved  April  21,  1911 ;  Stats. 
1911,  p.  1011.] 
Stockholders'  liability,  waiver  of. 

Sec.  40.  No  bank  mentioned  in  this  act  shall  make  any  con- 
tract with  any  of  its  depositors  whereby  the  stockholders'  lia- 
bility provided  for  by  the  constitution  of  this  state  is  in  any 
manner  waived,  and  if  any  such  contract  shall  be  so  made, 
such  contract  shall  be  void. 

Officer  or  employee  not  to  purchase  obligation  at  discount. 

Sec.  41.  No  officer,  director,  agent,  or  other  employee  of 
any  bank  shall  directly  or  indirectly,  for  his  own  personal 
benefit,  purchase,  or  be  interested  in  the  purchase  of  any  obli- 
gation of  said  bank  for  a  less  sum  than  shall  appear  upon  the 
face  of  such  obligation  to  be  the  value  thereof.  Every  per- 
son violating  any  provision  of  this  section,  shall  for  each 
offense  forfeit  to  the  people  of  the  state,  three  times  the  face 
value  of  any  such  obligation  so  purchased.  [Amendment  ap- 
proved May  6,  1913;  Stats.  1913,  p.  156.] 

Officer  or  employee  not  to  purchase  assets  at  discount. 

Sec.  42.  No  officer,  director,  agent  or  other  employee  of 
any  bank,  shall  directly  or  indirectly,  for  his  own  personal 
benefit,  purchase,  or  be  interested  in  the  purchase  of  any  of  the 
assets  of  said  bank  for  a  less  sum  than  the  current  market 
value  thereof.  Every  person  violating  any  provision  of  this 
section,  shall  for  each  offense,  forfeit  to  the  people  of  the 
state,  twice  the  nominal  amount  of  any  such  assets  so  pur- 
chased. [Amendment  approved  May  6,  1913 ;  Stats.  1913, 
p.  156.] 


874  APPENDIX.  §  47 

Designating  depositaries. 

Sec.  43.  No  bank  shall  deposit  any  of  its  funds  in  any 
other  bank  unless  such  other  bank  has  been  designated  as  a 
depositary  for  its  funds  by  the  vote  of  a  ma.iority  of  the  di- 
rectors or  trustees  of  the  bank  making  the  deposits,  exclusive 
of  the  vote  of  any  director  who  is  an  officer,  director,  or  trus- 
tee of  the  depositary  so  designated ;  provided,  however,  that 
any  bank  may  designate  any  other  bank  its  depositary  by 
vote  of  a  ma.iority  of  its  directors,  including  the  vote  of  any 
director  or  trustee  who  is  an  officer,  director  or  trustee  of  the 
depositary  so  designated,  if  such  bank  has  secured  the  previous 
approval  of  the  superintendent  of  banks,  which  approval  he 
may  at  any  time  revoke  for  proper  cause.  [Amendment  ap- 
proved May  6,  1913 ;  Stats.  1913,  p.  156.  Also  amended  April 
21,  1911;  Stats.  1911,  p.  1012.] 

Loan  on  bank  stock. 

Sec.  44.  No  bank  shall  hereafter  make  a  loan  secured  by 
the  stock  of  another  bank,  if  by  making  such  loan  the  total 
stock  of  such  other  bank  held  by  such  loaning  bank  as  col- 
lateral will  exceed  in  the  aggregate  twenty-five  per  centum  of 
the  capital  stock  of  such  other  bank;  provided,  that  no  loan 
upon  the  capital  stock  of  any  bank  shall  be  made  unless  such 
bank  has  been  in  existence  at  least  two  years  and  has  earned 
and  paid  a  dividend  upon  its  capital  stock ;  and  provided,  fur- 
ther, that  no  bank  may  loan  more  than  five  per  centum  of  its 
assets  upon  the  capital  stock  of  any  corporation  whatsoever- 
as  collateral  security.  [Amendment  approved  May  6,  1913 ; 
Stats.  1913,  p.  156.]' 

Interest  unpaid. 

Sec.  45.  Interest  unpaid  although  due  or  accrued,  on  debts 
owing  to  any  bank,  shall  not  be  included  in  calculation  of  its 
profits  previous  to  a  dividend. 

Investments  or  loans  in  one  bond  issue. 

Sec.  46.  No  commercial  bank  shall  invest  or  loan  more 
than  five  per  centum  of  its  assets  in  any  one  bond  issue,  except 
bonds  of  the  United  States,  of  the  State  of  California,  of  the 
counties,  cities  and  counties,  cities  or  school  districts  of  this 
state,  or  bonds  of  any  irrigation  district  such  as  are  legal  for 
investment  by  savings  banks.  [Amendment  approved  June 
3,  1915 ;  Stats.  1915,  p.  1111.] 

Loans  on  realty. 

Sec.  47.  No  commercial  bank  shall,  except  for  the  purpose 
of  facilitating  the  sale  of  property  owned  by  the  bank,  make 
any  loan  on  the  security  of  real  estate,  unless  it  is  a  first  lien 
and  is  either 


§  49  .  BANKING.  875 

(1)  Made  for  a  period  of  time  not  exceeding  six  months  and 
upon  security  worth  at  least  fifteen  per  centum  more  than  the 
amount  loaned ;  or 

(2)  Made  for  a  period  of  time  exceeding  six  months  and 
not  exceeding  ten  years  and  does  not  exceed  sixty  per  centum 
of  the  market  value  of  the  real  estate  taken  as  security. 

No  commercial  hank  shall  loan  in  the  aggregate  more  than 
thirty-five  per  centum  of  its  assets  on  real  estate  loans  of  the 
character  specified  in  subdivision  tw^o  of  this  section.  These 
provisions,  however,  shall  not  prevent  any  bank  from  taking 
another  and  immediately  subsequent  mortgage  or  deed  of  trust 
thereon  when  it  already  holds  a  first  mortgage  or  deed  of  trust 
on  such  real  estate,  nor  from  accepting  a  second  lien  on  real 
estate  to  secure  the  repayment  of  a  debt  previously  contracted 
in  good  faith ;  nor  shall  it  prevent  subsequent  liens  of  any 
kind  from  being  taken  to  secure  the  payment  of  a  debt  previ- 
ously contracted  in  good  faith  when,  in  the  judgment  of  the 
directors  of  such  bank,  such  subsequent  liens  are  necessary 
further  to  secure  the  payment  of  any  debts  and  save  such  bank 
froni  loss.  [Amendment  approved  June  3,  1915 ;  Stats.  1915, 
p.  nil.     Also  amended  May  6,  1913;  Stats.  1913,  p.  156.] 

National  banks,  enumeration  of. 

Sec.  48.  Any  national  bank,  in  this  state,  other  than  a  fed- 
eral reserve  bank,  receiving  the  deposits  of  any  bank  organ- 
ized and  conducting  business  under  this  act,  must,  at  the 
request  of  the  superintendent  of  banks,  submit  to  an  examina- 
tion by  him,  or  his  duly  appointed  examiners,  should  the  super- 
intendent of  banks  in  his  discretion  deem  it  necessary  or 
desirable  that  such  examination  be  made ;  and  the  expense  of 
such  examination  shall  be  paid  by  such  depositary  bank;  and 
if  any  such  bank  shall  refuse  to  permit  such  examination  to 
be  made  by,  or  under  the  direction  of,  the  superintendent  of 
banks,  then  the  superintendent  of  banks  shall  notify  in  writ- 
ing every  bank  depositing  its  funds  with  such  bank,  to  with- 
draw its  deposits  therefrom,  and  all  such  banks  shall  comply 
with  such  order.  [Amendment  approved  June  3,  1915 ; 
Stats.  1915,  p.  1112.  Also  amended  May  6,  1913 ;  Stats.  1913, 
p.  157.] 

Unlawful  for  commercial  banks  to  advertise  as  savings  banks. 
Sec.  49.  It  shall  not  be  lawful  for  any  commercial  bank, 
individual,  trust  company,  association,  firm,  stock  company, 
co-partnership  or  corporation,  to  advertise  or  put  forth  a  sign 
as  a  savings  bank,  or  either  directly  or  indirectly  or  in  any 
way  to  solicit  or  receive  deposits  or  to  transact  business  in  the 
way  or  manner  of  a  savings  bank,  or  to  advertise  that  he  or 
it  is  receiving  or  accepting  savings,  or  in  any  way  which  might 


876  '  APPENDIX.  .  §  52 

lead  the  public  to  believe  that  such  deposits  are  received  or 
invested  under  the  same  conditions  or  in  the  same  manner  as 
deposits  in  savings  banks,  except  in  the  case  of  savings  banks 
or  banks  having  savings  departments,  subject  to  the  provi- 
sions of  this  act.  Any  commercial  bank,  individual,  trust  com- 
pany, association,  firm,  stock  company,  co-partnership  or 
corporation,  violating  any  provision  of  this  section  shall  for- 
feit to  this  state  one  hundred  dollars  a  day  for  every  day  dur- 
ing which  such  violation  continues.  [Amendment  approved 
June  3,  1915;  Stats.  1915,  p.  1112.  Also  amended  April  21, 
1911;  Stats.  1911.  p.  1012;  May  6,  1913;  Stats.  1913,  p.  157.] 

Posting-  of  certificate. 

Sec.  50.  Every  bank  shall  post  in  a  conspicuous  place  in  its 
banking  room  or  branch  office  the  last  certificate  obtained  from 
the  superintendent  of  banks  under  the  provisions  of  either  sec- 
tion nine  or  one  hundred  twentv-seven  of  this  act.  [Amend- 
ment approved  May  6,  1913;  Stats.  1913,  p.  158.] 

Deposits  by  order  of  court. 

Sec.  51.  Any  court  having  appoiiited  and  having  .iurisdic- 
tion  of  any  executor,  administrator,  guardian,  assignee,  re- 
ceiver, depositary  or  trustee,  upon  the  application  of  such 
executor,  administrator,  guardian,  assignee,  receiver,  deposi- 
tary or  trustee,  or  upon  the  application  of  any  person  having 
an  interest  in  the  estate  administered  upon  by  such  officer  or 
trustee,  after  notice  to  other  parties  in  interest  as  the  court 
may  direct,  and  after  a  hearing  upon  such  application,  may 
authorize  such  officer  or  trustee  to  deposit  any  money  then 
in  his  hands  as  such  officer  or  trustee  or  which  may  thereafter 
come  into  his  hands,  and  until  the  further  order  of  the  court, 
in  any  bank  organized  under  the  laws  of  the  State  of  Cali- 
fornia: and  upon  such  deposit  being  made,  the  officer  or  trus- 
tee so  depositing  the  same  shall  thereafter  and  while  such 
moneys  remain  on  deposit  in  such  bank,  be  relieved  and  dis- 
charged from  all  liability  and  responsibility  therefor,  and  the 
bond  required  of  such  officer  or  trustee  given  upon  his  appoint- 
ment shall  be  thereupon  by  said  court  reduced  to  such  an 
amount  as  the  court  may  deem  reasonable :  such  deposit  shall 
be  repaid  only  upon  the  orders  of  said  court,  and  shall  be  a 
preferred  claim  against  such  bank  and  be  paid  in  full  before 
any  other  depositor  of  such  bank  shall  have  been  paid. 

Certified  checks. 

Sec.  52.  Whenever  a  cheek  drawn  on  any  bank  is  certified 
by  any-  officer  or  employee  of  such  bank,  the  amount  thereof 
shall  be  immediately  charged  against  the  account  of  the  per- 
son, firm  or  corporation  drawing  the  same.     It  shall  be  unlaw- 


§  54  BANKING.  877 

fill  for  any  officer  or  employee  of  any  bank  to  certify  any 
check  drawn  upon  such  liank  unless  the  person,  firm  or  corpo- 
ration drawing  the  check  has  on  deposit  with  the  bank  at  the 
time  such  check  is  certified,  an  amount  of  money  subject  to 
the  payment  of  such  check,  equal  to  the  amount  specified  in 
such  check.  Any  officer  or  employee  of  any  bank  who  shall 
willfully  violate  the  provisions  of  this  section,  or  shall  resort 
to  any  device,  or  receive  any  fictitious  obligations,  directly  or 
indirectly,  in  order  to  evade  the  provisions  hereof,  or  who  shall 
certify  checks  before  the  amount  thereof  shall  have  been  reg- 
ularly entered  to  the  credit  of  the  drawer,  shall  be  guilty  of  a 
felony.  [New  section  approved  April  21,  1911 ;  Stats.  1911, 
p.  1012.] 

Par  value  of  capital  stock. 

Sec.  53.  The  capital  stock  of  any  bank  having  a  capital 
stock  shall  have  a  par  value  of  one  hundred  dollars  per  share, 
and  the  paid-up  value  shall  be  endorsed  upon  the  face  of  each 
certificate  issued,  which  paid-up  value  shall  be  the  same  on  all 
certificates  issued.  No  hank  shall  have  preferred  stock;  pro- 
vided, however,  that  no  bank  whose  capital  stock,  on  January 
1,  1915,  failed  to  comply  with  any  of  the  requirements  of  this 
section,  shall  be  compelled  to  change  its  capital  stock  in  com- 
pliance herewith.  [Amendment  approved  April  28,  1915 ; 
Stats.  1915,  p.  297.     Added  April  21,  1911 ;  Stats.  1911,  p.  1016.] 

Sale  of  real  estate  held  by. 

Sec.  54.  All  real  estate  purchased  by  any  bank  at  sales 
under  pledges,  mortgages  or  deeds  of  trust  for  its  benefit  for 
money  loaned  and  such  as  may  be  conveyed  to  it  by  borrow- 
ers in  satisfaction  and  discharge  of  loans  made  thereon  and  all 
other  real  estate  owned  or  held  by  it,  which  is  not  necessary 
for  carrying  on  its  business,  must  be  sold  by  such  bank  within 
five  years  after  title  thereto  shall  have  vested  in  it  by  purchase 
or  otherwise.  Parcels  of  such  real  estate  not  sold  within  said 
time  may  be  purchased  by  any  person  wanting  the  same  upon 
the  conditions  and  proceedings  f ollov/ing :  The  intending  pur- 
chaser may  file  a  petition  in  the  superior  court  in  and  for  the 
county  wherein  said  real  estate  or  any  portion  thereof  is  situ- 
ated ;  upon  the  filing  of  such  petition  a  citation  shall  be  issued 
out  of  said  court  directed  to  the  bank  owning  such  real  estate 
requiring  such  bank  to  show  cause  on  a  day  certain  which 
shall  be  not  earlier  than  ten  days  after  the  service  of  such 
citation,  why  commissioners  should  not  be  appointed  by  said 
court  for  the  purpose  of  appraising  the  value  of  the  real  es- 
tate described  in  the  petition  and  of  selling  the  same  at  public 
auction  under  the  provisions  of  this  section.  If  there  shall  be 
any  liens  or  encumbrances  of  record  against  such  real  estate 


878  APPENDIX.  §  54 

the  person  or  persons  holding  such  liens  or  encumbrances  shall 
likewise  be  cited  and  the  court  shall  in  its  final  decree  dis- 
tribute the  proceeds  of  such  sale,  if  a  sale  thereof  shall  be 
made,  according  to  the  equities  of  the  parties.  If  it  shall  ap- 
pear at  the  hearing  of  such  petition  that  the  real  estate  therein 
sought  to  be  purchased  is  held  by  such  bank  in  violation  of 
the  provisions  of  this  section  or  of  the  constitution  of  this  state, 
the  court  shall  appoint  three  commissioners  to  appraise  the 
value  thereof  and  sell  the  same  at  public  auction  at  the  county 
seat  of  the  county  wherein  said  real  estate  or  any  part  thereof 
is  located.  Notice  of  which  said  sale  shall  be  given  to  the 
bank  owning  said  real  estate  and  to  any  other  persons  inter- 
ested therein  as  shown  by  the  records  of  such  county  at  least 
ten  days  before  the  date  of  such  sale  and  shall  be  published 
once  a  week  for  three  successive  weeks  in  some  newspaper  pub- 
lished in  the  county  where  such  real  estate  or  any  part  thereof 
may  be  located  or  if  no  newspaper  shall  be  published  in  such 
county  then  in  a  newspaper  published  in  some  neighboring 
county.  Such  notice  shall  state  the  time  and  place  of  such 
sale  and  shall  describe  the  real  estate  to  be  sold  with  common 
certainty  and  state  the  value  thereof  as  fixed  by  the  appraise- 
ment of  such  commissioners  and  state  that  no  bid  less  than 
such  appraised  value  will  be  received  therefor.  No  sale  shall 
be  made  for  an  amount  less  than  the  appraised  value  of  such 
real  estate  fixed  by  said  commissioners  and  in  the  event  that 
no  bid  is  received  at  such  sale  at  least  equal  to  said  appraised 
value  of  said  real  estate  no  intending  purchaser  can  institute 
the  proceedings  provided  for  in  this  section  within  one  year 
thereafter.  In  case  of  any  sale  made  under  the  provisions  of 
this  section  and  of  the  refusal  of  any  bank  owning  such  real 
estate  or  of  any  lienholder  or  encumbrancer  to  execute  the 
conveyances  or  releases  necessary  or  proper  to  vest  the  title 
of  such  bank,  lienholder  or  encumbrancer  in  the  purchaser 
thereof  the  court  shall  have  power  in  such  proceedings  to 
direct  said  commissioner  to  execute  such  deeds,  conveyances 
or  releases  upon  the  payment  to  them  of  the  purchase,  price 
therefor.  The  fees  of  such  commissioners  and  cost  of  sale  shall 
be  fixed  by  the  court,  upon  making  such  appointment,  but  the 
entire  expense  thereof  shall  not  exceed  one  hundred  dollars. 
The  cost  of  any  such  proceedings  shall  be  borne  by  the  intend- 
ing purchaser  if  no  sale  shall  be  made  but  if  a  sale  shall  be 
made  the  costs  of  such  proceedings  shall  be  borne  by  the  pur- 
chaser of  the  property  and  the  person  who  filed  the  petition 
and  advanced  the  costs  of  such  proceedings  shall  be  reim- 
bursed in  case  he  sl^all  not  become  such  purchaser.  All  sales 
hereunder  shall  be  returned  to  the  court  having  jurisdiction 
of  the  matter  in  the  same  manner  as  in  the  case  of  sales,  by 


§  56  BANKING.  879 

commissioners,  of  real  estate  on  foreclosure  of  mortgages. 
Nothing  in  this  section  contained  shall  be  deemed  to  affect  the 
power  of  the  superintendent  of  banks  to  require  the  writing 
down  of  the  value  of  real  estate  held  by  any  bank,  at  any  time, 
when  such  writing  down  shall  be  proper.  [New  section  ap- 
proved May  6,  1913;  Stats.  1913,  p.  158.] 

Receiving-  deposits  not  creation  of  debt.  Real  and  personal 
estate. 

Sec.  55.  Receiving  deposits,  issuing  certificates  of  deposit, 
checks  and  bills  of  exchange,  and  the  like,  in  the  transaction 
of  the  ordinary  business  of  a  bank,  must  not  be  construed  to 
be  the  creation  of  debt  within  the  meaning  of  the  phrase 
"cred;te  debt"  in  section  three  hundred  nine  of  the  Civil  Code, 
nor  of  indebtedness  within  the  meaning  of  the  phrase  "the 
capital  stock  cannot  be  diminished  to  an  amount  less  than  the 
indebtedness  of  the  corporation"  in  section  three  hundred  fifty- 
nine  of  the  Civil  Code,  except  that  no  bank  shall  reduce  its 
capital  stock  to  an  amount  less  than  is  required  by  this  act  to 
be  maintained  by  such  bank,  or  less  than  any  indebtedness  of 
such  bank  other  than  such  deposits. 

The  terms  "real  estate,"  or  "real  property,"  or  "personal 
property,"  when  used  in  this  act  shall  have  the  meaning  de- 
fined in,  and  shall  be  construed  in  accordance  with  the  provi- 
sions of  title  I  of  part  I  of  division  second  of  the  Civil  Code. 
[New  section  approved  May  6,  1913.     Stats.  1913,  p.  159.] 

National  reserve  association. 

Sec.  56.  Any  bank  organized  and  existing  under  the  laws 
of  this  state  is  hereby  authorized  and  empowered  to  join  or 
associate  itself  with  any  "national  reserve  association  of  the 
United  States"  or  branch  thereof,  or  any  plan  now  or  here- 
after created  or  established  by  act  of  Congress  whether  such 
banking  or  currency  association  or  plan  be  created  by  Congress 
under  the  above  or  any  other  name.  Nothing  in  this  act 
shall  prohibit  any  such  bank  from  joining  or  associating  itself 
with  any  such  association  or  plan  or  branch  thereof  nor  from 
investing  any  part  of  its  capital  or  surplus  in  the  stock  of 
such  association,  plan  or  branch  thereof  in  accordance  with 
the  terms  and  provisions  of  such  act  of  Congress ;  provided, 
however,  that  such  investment  shall  in  no  case  exceed  the  mini- 
mum amount  required  to  join  or  associate  itself  with  such 
association,  plan  or  branch  thereof.  Any  bank  joining  or  asso- 
ciating itself  with  such  association,  plan  or  branch  thereof, 
shall  have  and  exercise  all  powers,  not  in  conflict  with  the  laws 
of  this  state,  which  are  conferred  upon  any  member  bank  in 
any  such  "national  reserve  association  of  the  United  States" 
or    branch    thereof.     Such    member    bank  and    its    directors, 


880  APPENDIX. 


S  0  1 


officers  and  stockholders  shall  continue  to  be  subject,  however, 
to  all  liabilities  and  duties  imposed  upon  them  by  any  law  of 
this  state  and  to  all  the  provisions  of  the  "bank  act."  [Amend- 
ment approved  June  3,  1915;  Stats.  1915,  p.  1112.  Added  May 
6,  1913;  Stats.  1913,  p.  160.] 

Loans  secured  by  a  first  lien  on  real  estate. 

Sec.  57.  Whenever  in  this  act  it  is  required  that  loans  or 
investments  shall  be  secured  by  a  first  lien  on  real  estate,  the 
lien  of  any  tax,  assessment  or  bond  levied  or  issued  by  this 
state  or  by  any  county,  cit}^  and  county,  city,  town,  munic- 
ipality, school  district,  reclamation  district,  irrigation  district 
or  any  other  political  or  governmental  subdivision  of  this  state 
(not  including  bonds  given  pursuant  to  any  law  authorizing 
the  same  by  any  person  or  corporation  in  lieu  of  payment  of 
any  tax  or  assessment  levied  against  any  particular  real  prop- 
erty) and  the  lien  of  any  assessment  levied  to  pay  such  bonds 
shall  not  be  deemed  to  be  a  prior  encuml)rance  or  lien  on  such 
real  property  unless  an  installment  or  call  of  such  tax,  assess- 
ment or  bond  shall  be  due  and  delinquent ;  and  any  bonds  given 
pursuant  to  any  law  authorizing  the  same  by  any  person  or 
corporation  in  lieu  of  payment  of  any  tax  or  assessment  levied 
against  any  particular  real  property  and  any  lien  given  to 
secure  the  payment  of  assessments  or  subscriptions  to  meet  the 
requirements  of  any  law  of  the  United  States  in  respect  to  any 
irrigation  project  of  the  United  States  in  this  state  which  may 
be  levied,  made  or  received  by  any  corporation  or  association 
formed  to  carry  out  the  objects  and  requirements  of  any  such 
law  of  the  United  States  shall  not  be  deemed  to  be  a  prior 
encumbrance  or  lien  on  such  real  property  if  the  lien  given  to 
secure  such  assessments  and  subscriptions  taken  with  the  loan 
or  investment  so  secured  shall  amount  to  not  more  than  sixty 
per  centum  of  the  market  value  of  the  land  securing  the  same. 
[New    section   approved  June    3,  1915;  Stats.    1915,  p.  1113.] 


§  60  BANKING,  881 

ARTICLE  II. 

SAVINGS   BANKS. 

§  60.     Capital  stock  of  savings  banks.     Banks  without  capital  stock. 

§  61.     Property  that  savings  banks  may  purchase,  hold  and  convey. 

§  61a.  Superintendent  of  banks  may  investigate  bonds.  Expenses.  Opin- 
ion of  attorneys.     Certified  bonds  deemed  legal  investments. 

§  62.  Savings  banks  not  to  trade  in  real  property.  Savings  banks  bor- 
rowing money. 

§  63.     Certificates  of  deposit,  issue  of.     Time  certificates. 

§  64.     Time  and  condition  of  repayment  of  deposits.     Eeserve  fund. 

§  65.  No  loan  to  officer.  Loans  to  employees.  Record  of  loans.  Sec- 
tion  not   applicable   to   religious   corporations. 

§  66.     No  loan  exceeding  50  per  cent  of  stock.     Renewal  of  loan. 

§  67.  Limitation  on  loans.  Loans  on  bonds.  Loans  on  real  estate. 
Loans  on  capital  stock  of  corporations. 

§  68.     ReserTie  of  savings  banks.     Deposits  with  commercial  banks. 

§  68|.  Deposits  of  deceased  persons  may  remain  in  savings  banks. 

§  69.     Savings  banks  to  be  conducted  under  provisions  of  this  act. 

Capital  stock  of  savings  banks.     Banks  without  capital  stock. 

Sec.  60.  Every  savings  bank  hereafter  organized  must  have 
paid  up  in  cash  a  capital  stock  of  not  less  than 

(a)  Twenty-five  thousand  dollars  if  its  principal  place  of 
business  is  located  in  any  locality  the  population  of  which  does 
not  exceed  five  thousand  persons  ; 

(b)  Fifty  thousand  dollars  if  its  principal  place  of  business 
is  located  in  any  city  the  population  of  Avhich  is  more  than 
five  thousand  persons,  but  does  not  exceed  twenty-five  thou- 
sand persons ; 

(c)  One  hundred  thousand  dollars  if  its  principal  place  of 
business  is  located  in  any  city  the  population  of  which  is  more 
than  twenty-five  thousand  persons  but  does  not  exceed  one 
hundred  thousand  persons ; 

(d)  Two  hundred  thousand  dollars  if  its  principal  place  of 
l)usiness  is  located  in  any  city  the  population  of  which  is  more 
than  one  hundred  thousand  persons  but  does  not  exceed  two 
hundred  thousand  persons ; 

(e)  Three  hundred  thousand  dollars  if  its  principal  place  of 
business  is  located  in  any  city  the  population  of  which  is  more 
than  two  hundred  thousand  persons. 

Excepting  that  any  savings  bank  organized  without  capital 
stock  must  have  a  reserve  fund  of  at  least  one  million  dollars. 
Until  the  capital  stock  or  reserve  fund  hereinbefore  required 
shall  be  actually  paid  in,  the  superintendent  of  banks  shall 
refuse  to  issue  the  certificate  required  by  this  act.  The  fore- 
going classification  shall  not  apply  to  any  savings  bank  al- 
ready in  existence  which  has  received  its  certificate  to  do  a 
banking  business  from  the  superintendent  of  banks ;  nor  to  any 
bank  the  location  of  which  shall  have  been  included  by  an- 

Civ.  Code — 56 


882  APPENDIX.  §  61 

nexation  or  consolidation  within  the  limits  of  a  city  of  a  class 
requiring  a  larger  capitalization,  but  no  bank  thus  excepted 
shall  be  permitted  to  establish  any  nev:  branch  office  as  pro- 
vided in  section  nine  of  this  act  or  to  remove  its  place  of  busi- 
ness from  the  original  limits  of  the  city  or  township  wherein 
it  was  located  prior  to  such  annexation  or  consolidation  until 
it  shall  have  the  capital  required  of  banks  in  such  city  not 
within  said  exception.  Such  excepted  banks  may  not  in  any 
case  decrease  their  capital  stock  but  may  increase  the  same 
in  the  manner  provided  by  law  to  an  amount  either  greater 
or  less  than  that  required  of  banks  in  such  city  not  within 
said  exception ;  provided,  that  nothing  herein  shall  be  con- 
strued to  affect  the  provisions  of  section  nineteen  of  this  act 
relative  to  the  proportion  of  capital  and  surplus  to  deposits 
or  of  section  twenty-three  of  this  act  relative  to  the  capital 
stock  required  of  banks  doing  a  departmental  business.  The 
provisions  of  section  tAventy-three  of  this  act,  as  to  popula- 
tion, shall  apply  to  any  bank  organized  under  the  provisions 
of  this  section.  [Amendment  approved  May  6,  1913 ;  Stats. 
1913,  p.  160.  Also  amended  April  21,  1911;  Stats.  1911, 
p.  1012.] 

Property  that  savings  banks  may  purchase,  hold  and  convey. 

Sec.  61.  Any  savings  bank  may  purchase,  hold  and  convey 
real  or  personal  property  as  follows : 

1.  The  lot  and  building  in  which  the  business  of  the  bank  is 
carried  on;  furniture  and  fixtures,  vaults  and  safe  deposit 
vaults  and  boxes  necessary  or  proper  to  carry  on  its  banking 
business ;  such  lot  and  building,  furniture  and  fixtures,  vaults 
and  safe  deposit  vaults  and  boxes  shall  not,  in  the  aggregate, 
be  carried  on  the  books  of  such  bank  as  an  asset  to  an  amount 
exceeding  its  paid  up  capital  and  surplus ;  and  hereafter,  the 
authQi'ity  of  a  two-thirds  vote  of  all  of  the  directors  shall  be 
necessary  to  authorize  the  purchase  of  such  lot  and  building, 
or  the  construction  of  such  building. 

2.  Such  as  may  have  been  mortgaged,  pledged  or  conveyed 
to  it  in  trust  for  its  benefit  in  good  faith,  for  money  loaned  in 
pursuance  of  the  regular  business  of  the  corporation. 

3.  Such  as  may  have  been  purchased  at  any  sales  under 
pledge,  mortgage  or  deed  of  trust  made  for  its  benefit  for 
money  so  loaned  and  such  as  may  be  conveyed  to  it  by  bor- 
rowers in  satisfaction  and  discharge  of  loans  made  thereon. 

No  savings  bank  shall  purchase,  own,  or  sell  personal  prop- 
erty, except  such  as  may  be  requisite  for  its  immediate  accom- 
modation for  the  convenient  transaction  of  its  business,  notes 
or  bonds  secured  by  trust  deeds  or  mortgiiges  on  real  estate, 
bonds,  securities  or  evidences  of  indebtedness,  public  or  pri- 


§  61  BANKING.  883 

vate,  gold  or  silver  bullion  and  United  States  mint  certificates 
of  ascertained  value,  and  evidences  of  debt  issued  by  the 
United  States.  No  savings  bank  shall  purchase,  own,  hold 
oj  convey  bonds,  securities  or  evidences  of  indebtedness,  pub- 
lic or  private,  except  as  follows: 

(a)  Bonds  or  interest  bearing  notes  or  obligations  of  the 
United  States,  or  tbose  for  which  the  faith  and  credit  of  the 
United  States  are  pledged  for  the  payment  of  principal  and 
interest ; 

(b)  Bonds  of  this  state,  or  those  for  which  the  faith  and 
credit  of  the  State  of  California  are  pledged  for  the  payment 
of  principal  and  interest ; 

(c)  Bonds  of  any  state  in  the  United  States  that  has  not, 
within  five  years  previous  to  making  such  investment  by  such 
bank,  defaulted  in  the  payment  of  any  part  of  either  princi- 
pal or  interest ; 

(d)  Bonds  of  any  county,  city  and  county,  city  or  school 
district  of  this  state ;  bonds  of  any  permanent  road  division  in 
any  county  issued  in  pursuance  of  the  provisions  of  article  IX 
of  chapter  II,  title  VI,  part  III  of  the  Political  Code;  bonds 
of  any  sewer  district,  drainage  district,  reclamation  district, 
protection  district,  or  sanitary  district  organized  under  the 
laws  of  this  state ;  and  any  irrigation  district  bonds  which  the 
law  may  now  or  hereafter  authorize  to  be  used  as  security  for 
the  deposit  of  public  moneys ;  provided,  that  the  total  amount 
of  bonds  so  issued  by  any  such  sewer  district,  drainage  dis- 
trict, protection  district  or  sanitary  district,  does  not  exceed 
fifteen  per  centum  of  the  value  of  the  taxable  property  in  said 
district  as  shown  by  the  last  equalized  assessment  roll  of  the 
county  in  which  said  district  is  located ;  and  provided,  further, 
that  the  total  amount  of  bonds  issued  by  any  such  irrigation 
district  does  not  exceed  sixty  per  centum  of  the  aggregate 
market  value  of  the  lands  within  such  district,  and  of  the 
water,  water  rights,  canals,  reservoirs,  reservoir  sites  and  irri- 
gation works  owned  or  to  be  acquired  or  constructed  with  the 
proceeds  of  any  of  such  bonds,  by  said  district,  such  facts  in 
reference  to  bonds  of  irrigation  districts  to  be  determined  by 
a  commission  now  or  hereafter  authorized  by  law  to  ascertain 
and  report  upon  such  facts. 

(e)  Bonds  of  any  county,  city  and  county,  city  or  town,  in 
any  state  of  the  United  States  other  than  the  State  of  Cali- 
fornia, issued  under  authority  of  any  law  of  such  state,  which 
county,  city  and  county,  city  or  town,  had,  as  shown  by  the 
federal  or  state  census  next  preceding  such  investment,  a  popu- 
lation of  more  than  twenty  thousand  inhabitants;  provided, 
however,  that  the  entire  bonded  indc])tcdness  of  such  county, 
city  and  county,  city  or  town,  including  such  issue  of  bonds 


884  APPENDIX,  §  61 

does  not  exceed  fifteen  per  centum  of  the  value  of  the  taxable 
property  therein  as  shown  by  its  last  equalized  assessment 
roll ;  and  provided,  further,  that  such  county,  city  and  county, 
city  or  town,  or  the  state  in  which  it  is  located  has  not  de- 
faulted in  payment  of  either  principal  or  interest  due  upon 
any  legally  authorized  bond  issue  within  five  years  next  pre- 
ceding such  investment. 

(f)  (1)  Bonds  of  any  railroad  corporation  incorporated  un- 
der the  laws  of  the  State  of  California  and  operating  exclu- 
sively therein,  provided  said  corporation  has  had  net  earnings 
for  the  period  herein  fixed  amounting  to  at  least  one  and  one- 
fourth  times  the  interest  on  all  its  outstanding  mortgage  in- 
debtedness ;  or 

(2)  Bonds  of  any  railroad  corporation  incorporated  under 
the  laws  of  any  other  state  in  the  United  States,  operating  at 
least  five  hundred  miles  of  standard  gauge  track  exclusive  of 
sidings,  provided  said  corporation  has  had  net  earnings  for 
the  period  herein  fixed  amounting  to  at  least  one  and  one-half 
times  the  interest  on  all  its  outstanding  mortgage  indebted- 
nass ;  or 

(3)  Bonds  of  any  railroad  corporation,  the  payment  of 
which  has  been  guaranteed,  both  as  to  principal  and  interest, 
by  a  railroad  corporation  meeting  the  requirements  of  either 
subdivision  (1)  or  (2)  of  paragraph  (f)  of  this  section,  pro- 
vided that  such  guaranteeing  corporation  has  had  for  the 
period  herein  fixed  net  earnings  anfounting  to  at  least  one  and 
one-half  times  the  interest  on  all  its  outstanding  mortgage  in- 
debtedness and,  in  addition  thereto,  sufficient,  taken  with  the 
earnings  of  all  corporations  whose  bonds  it  has  guaranteed,  to 
qualify  as  investments  for  savings  banks,  as  in  this  section 
provided,  all  such  guaranteed  bonds ;  provided,  that  the  ex- 
cess of  income  of  any  corporation  whose  bonds  have  been  so 
guaranteed,  over  the  amount  required  by  this  section  for  such 
corporation,  shall  not  apply  to  or  be  included  in  determining 
the  income  so  required.  In  determining  the  income  of  any 
corporation  specified  in  paragraph  (f)  of  subdivision  3  of  this 
section,  there  shall  be  included  the  income  of  any  corporation 
or  corporations  out  of  which  it  shall  have  been  formed  through 
consolidation  or  merger,  and  of  any  corporation  or  corpora- 
tions, the  entire  business  and  income  producing  property  of 
which  the  corporation  issuing  such  bonds  has  wholly  acquired. 

All  bonds  authorized  for  investment  by  paragraph  (f)  of 
subdivision  3  of  this  section  must  be  secured  by  a  mortgage  or 
deed  of  trust  which  is,  at  the  time  of  making  such  investment, 
either 

I.     A  closed  first  mortgage  or  deed  of  trust;  or 


§  61  BANKING.  885 

II.  A  first  mortgage  or  deed  of  trust  containing  provisions 
restricting  the  issuance  of  furtlier  bonds  until  such  time  as 
the  income  of  said  corporation  shall  have  been  at  least  suffi- 
cient, during  the  twelve  months  next  preceding  the  issuance 
of  any  additional  bonds,  to  meet  the  earning  requirements 
specified  in  the  respective  subdivisions  of  this  paragraph  ap- 
plicable to  such  corporation  after  including  the  additional 
bonds  then  proposed  to  be  issued;  or 

III.  A  refunding  mortgage  or  deed  of  trust  providing  for 
the  retirement  of  all  prior  lien  mortgage  debts  of  said  corpo- 
ration, and  restricting  the  issuance  of  further  bonds  until  such 
time  as  the  income  of  said  corporation  shall  have  been  at  least 
sufficient,  during  the  twelve  months  next  preceding  the  issu- 
ance of  any  additional  bonds,  to  meet  the  earning  requirements 
specified  in  the  respective  subdivisions  of  this  paragraph  appli- 
cable to  such  corporation  after  including  the  additional  bonds 
then  proposed  to  be  issued ;  or 

IV.  An  underlying  or  divisional  closed  mortgage  or  deed 
of  trust  of  property  which  forms  a  part  of  the  operating  sys- 
tem of  the  corporation  then  owning  said  property.  In  the 
case  of  bonds  secured  by  an  underlying  or  divisional  closed 
mortgage  or  deed  of  trust,  the  net  income  required  by  this  sec- 
tion shall  be  based  exclusively  upon  the  income,  maintenance 
charges,  operating  expenses,  taxes,  and  mortgage  indebtedness 
of  or  against  the  property  covered  by  such  underlying  or  divi- 
sional closed  mortgage  or  deed  of  trust,  or,*if  such  income, 
maintenance  charges  or  operating  expenses  cannot  be  definitely 
ascertained,  on  the  proper  proportionate  share  of  such  prop- 
erty in  the  general  income,  maintenance  charges,  operating 
expenses,  and  taxes  of  the  corporation  then  owning  such  prop- 
erty and  on  the  mortgage  indebtedness  of  or  against  the  prop- 
erty covered  by  such  underlying  or  divisional  closed  mort- 
gage or  deed  of  trust ;  provided,  however,  that  if  the  payment 
of  the  bonds  secured  by  such  underlying  or  divisional  closed 
mortgage  or  deed  of  trust  shall  be  guaranteed  or  assumed  by 
the  corporation  then  owning  the  property  securing  the  same, 
such  bonds  shall  be  legal  investments  for  savings  banks,  if  the 
net  income  of  such  corporation  from  all  sources  shall  equal  the 
amount  herein  required,  notwithstanding  any  insufficiency  of 
the  income  derived  from  the  property  covered  by  such  under- 
lying or  divisional  closed  mortgage  or  deed  of  trust  to  meet 
the  requirements  of  this  section. 

No  savings  bank  shall  purchase  the  bonds  of  any  railroad 
corporation  deriving  less  than  twenty  per  centum  of  its  gross 
receipts  from  passenger  revenues. 

The  term  "railroad  corporation"  when  used  in  paragraph 
(f)   of  subdivision  3  of  this  section  shall  have  tlie  meaning 


886  APPENDIX.  §  61 

defined  in  the  "public  utilities  act"  approved  December  23, 
1911. 

(g)  Bonds  of  any  street  railroad  corporation;  or  of  any  gas; 
water ;  pipe  line ;  light ;  power ;  light  and  power ;  gas,  light 
and  power ;  electrical ;  telephone  ;  telegraph  ;  or  telephone  and 
telegraph  corporation  or  of  any  other  "public  utility"  incor- 
porated under  the  laws  of  the  State  of  California ;  and 

(1)  Operating  exclusively  in  the  State  of  California,  pro- 
vided said  corporation  has  had,  for  the  period  herein  fixed, 
net  earnings  amounting  to  one  and  one-half  times  the  interest 
on  all  its  outstanding  mortgage  indebtedness;  or 

(2)  Operating  its  property  in  part  within  the  State  of  Cali- 
fornia, provided  said  corporation  has  had,  for  each  of  its  tAvo 
fiscal  years  next  preceding  such  investment,  net  earnings 
amounting  to  one  and  one-half  times  the  interest  on  all  its 
outstanding  mortgage  indebtedness ;  or 

(3)  The  payment  of  which  is  guaranteed,  both  as  to  prin- 
cipal and  interest,  by  a  public  utility  corporation  meeting  the 
requirements  of  either  subdivision  (1)  or  (2)  of  paragraph  (g) 
of  this  section,  provided  that  such  guaranteeing  corporation 
has  had  for  the  period  required  in  the  respective  subdivisions 
of  this  paragraph  relating  thereto,  net  earnings  amounting  to 
at  least  one  and  one-half  times  the  interest  on  all  of  said 
guaranteeing  corporation's  outstanding  mortgage  indebtedness,  -^ 
and,  in  addition  thereto,  sufficient,  taken  with  the  earnings  of 
all  corporations*  whose  bonds  it  has  guaranteed,  to  qualify  as 
investments  for  savings  banks  as  in  this  section  provided,  all 
such  guaranteed  bonds ;  provided,  that  the  excess  of  income 
of  any  corporation  whose  bonds  have  been  so  guaranteed,  over 
the  amount  required  by  this  section  for  such  corporation,  shall 
not  apply  to  or  be  included  in  determining  the  income  so 
required. 

In  determining  the  income  of  any  corporation  specified  in 
paragraph  (g)  of  subdivision  3  of  this  section,  there  shall 
be  included  the  income  of  any  corporation  or  corporations  out 
of  which  it  shall  have  been  formed  through  consolidation  or 
merger,  and  of  any  corporation  the  entire  business  and  income 
producing  property  of  which  the  corporation  issuing  such 
bonds  has  wholly  acquired. 

All  bonds  authorized  for  investment  by  paragraph  (g)  of 
subdivision  3  of  this  section  must  be  secured  by  a  mortgage  or 
deed  of  trust  which  is  at  the  time  of  making  such  investment ; 
either 

I.  A  closed  first  mortgage  or  deed  of  trust ;  or 

II.  A  first  mortgage  or  deed  of  trust  containing  provisions 
restricting  the  issuance  of  further  bonds  until  such  time  as 
the  incomeyof  said  corporation  shall  have  been  at  least  suf 


I 


§  61  .  BANKING.  887 

cient,  during-  the  twelve  months  next  preceding  the  issuance 
of  any  additional  bonds,  to  meet  the  earning  requirements 
specified  in  the  respective  subdivisions  of  this  paragraph  appli- 
cable to  such  corporation  after  including  the  additional  bonds 
then  proposed  to  be  issued ;  or 

III.  A  refunding  mortgage  or  deed  of  trust  providing  for 
the  retirement  of  all  prior  lien  mortgage  debts  of  said  corpo- 
ration and  restricting  the  issuance  of  further  bonds  until  such 
time  as  the  income  of  said  corporation  shall  have  been  at  least 
sufficient,  during  the  twelve  months  next  preceding  the  issu- 
ance of  any  additional  bonds,  to  meet  the  earning  requirements 
of  such  corporation  after  including  the  additional  bonds  then 
proposed  to  be  issued  ;  or 

IV.  An  underlying  or  divisional  closed  mortgage  or  deed 
of  trust  of  property  which  forms  a  part  of  the  operating 
system  of  the  corporation  then  owning  said  property.  In  the 
case  of  bonds  secured  by  an  underlying  or  divisional  closed 
mortgage  or  deed  of  trust,  the  net  income  required  by  this 
section  shall  be  based  exclusively  upon  the  income,  main- 
tenance charges,  operating  expenses,  taxes  and  mortgage 
indebtedness  of  or  against  the  property  covered  by  such  under- 
lying or  divisional  closed  mortgag:e  or  deed  of  trust  or,  if 
such  income,  maintenance  charges,  or  operating  expenses 
cannot  be  definitely  ascertained,  on  the  proper  proportionate 
share  of  such  property  in  the  general  income,  maintenance 
charges,  operating  expenses  and  taxes  of  the  corporation  then 
owning  such  property  and  on  the  mortgage  indebtedness  of  or 
against  the  property  covered  by  such  underlying  or  divisional 
closed  mortgage  or  deed  of  trust ;  provided,  however,  that  if 
the  payment  of  the  bonds  secured  by  such  underlying  or  divi- 
sional closed  mortgage  or  deed  of  trust  shall  be  guaranteed  or 
assumed  by  the  corporation  then  owning  the  property  secur- 
ing the  same,  such  bonds  shall  be  legal  investments  for  savings 
banks,  if  the  net  income  of  such  corporation  from  all  sources 
shall  equal  the  amount  herein  required,  notwithstanding  any 
insufficiency  of  the  income  derived  from  the  property  covered 
by  such  underlying  or  divisional  closed  mortgage  or  deed  of 
trust  to  meet  the  requirements  of  this  section.  The  terms, 
"street  railroad  corporation,"  "pipe  line  corporation"  "gas 
corporation,"  "electrical  corporation,"  "telephone  corporation," 
"telegraph  corporation,"  "water  corporation,"  and  "public 
utility,"  when  used  in  paragraph  (g)  of  subdivision  3  of  this 
section,  shall  each  have  the  meaning  defined  in  the  "public 
utilities  act"  approved  December  23,  1911. 

(h)  Notes  or  bonds  secured  by  first  mortgage  or  deed  of 
trust  or  other  first  lien  upon  real  estate,  imi)roved  or  unim- 
proved; provided,  that  the  entire  note  or  bond  issue  shall  not 


888  APPENDIX.  .  §  61 

exceed  sixty  per  centum  of  the  market  value  of  such  real  estate, 
or  such  real  estate  Avith  improvements,  taken  as  security ;  and 
provided,  further,  in  case  the  said  note  or  bond  issue  is  created 
for  a  building  loan  on  real  estate,  that  at  no  time  shall  the 
entire  outstanding  note  or  bond  issue  exceed  sixty  per  centum 
of  the  market  value  of  the  real  estate  and  the  actual  cost  of 
the  improvements  thereon  taken  as  security.  In  determining 
the  market  value  of  any  real  estate  under  the  provisions  of 
13aragraph  (h)  subdivision  3  of  this  section  where  such  real 
estate,  improved  or  unimproved,  consists  of  oil  or  other  mineral 
or  timber  land,  tne  value  represented  by  such  oil  or  other 
mineral  or  timber  shall  not  be  included  in  fixing  such  market 
value. 

(i)   Collateral  trust  bonds  or  notes  when  secured  by  either: 

(1)  Deposit  of  bonds  authorized  for  investment  by  this  sec- 
tion of  a  market  value  at  least  fifteen  per  centum  in  excess 
of  the  par  value  of  the  collateral  trust  bonds  or  notes  issued; 
or 

(2)  Deposit  of  bonds  authorized  for  investment  by  this  sec- 
tion and  other  securities  of  a  combined  market  value  at  least 
twenty  per  centum  in  excess  of  the  par  value  of  the  collateral 
trust  bonds  or  notes  issued;  provided,  that  the  par  value  of 
said  collateral  trust  bonds  or  notes  shall  in  no  case  exceed  the 
market  value  of  that  portion  of  the  security  represented  by 
bonds  authorized  for  investment  by  this  section. 

(3)  Deposit  of  any  notes  or  bonds  authorized  for  investment 
by  this  section  and  other  securities  of  a  combined  market 
value  of  at  least  thirty  per  centum  in  excess  of  the  par  value  of 
the  collateral  trust  bonds  or  notes  issued;  provided,  that  the 
par  value  of  such  collateral  trust  bonds  or  notes  issued  shall  in 
no  case  exceed  the  market  value  of  that  portion  of  the  security 
represented  by  notes  or  bonds  authorized  for  investment  by  this 
section ;  provided,  further,  that  the  collateral  pledged  consist 
of  bonds  authorized  for  investment  by  this  section  of  the  mar- 
ket value  of  at  least  seventy-five  per  centum  of  the  par  value  of 
such  collateral  trust  bonds  or  notes  issued. 

(j)  Bonds  legal  for  investment  by  savings  banks  in  the 
states  of  New  York  or  Massachusetts ;  provided,  however,  that 
as  to  bonds  of  the  character  specified  in  paragraph  (c)  or  (e) 
of  subdivision  3  of  this  section,  such  bonds  shall  also  conform 
to  the  requirements  of  either  of  such  paragraphs. 

(k)  Notes  or  bonds  secured  by  mortgage  or  deed  of  trust, 
payment  of  which  is  guaranteed  by  a  policy  of  mortgage 
insurance,  and  mortgage  participation  certificates,  issued  by  a 
mortgage  insurance  company  in  accordance  with  the  provisions 
of  chapter  VIIT  of  title  II  of  part  IV  of  division  first  of  the 
Civil  Code. 


§  61  BANKING.  SS9 

"Net  earnings"  as  used  in  this  section  shall  be  deemed  to 
mean  the  amount  remaining  after  deducting  from  the  gross 
earnings  all  taxes,  maintenance  charges  and  operating  expenses 
except  depreciation  charges,  sinking  fund  charges  and  interest 
on  indebtedness.  Unless  herein  otherwise  expressly  provided 
the  period  for  which  any  corporation  must  have  "net  earnings" 
sufficient  to  qualify  its  bonds  as  an  investment  for  savings 
banks  under  this  section  shall  be  either  the  fiscal  year  of  such 
corporation  next  preceding  the  investment  therein  by  any 
savings  bank  or  twelve  consecutive  months  in  the  fourteen 
months  next  preceding  such  investment.  No  notes,  bonds, 
or  other  securities  shall  be  deemed  to  come  within  or  conform 
to  the  requirements  of  either  of  paragraphs  (f),  (g)  or  (i)  of 
subdivision  3  of  this  section,  unless  such  notes,  bonds  or  other 
securities  shall,  in  the  manner  provided  in  this  act,  have  been 
certified  by  the  superintendent  of  l^anks  to  come  within  and 
fully  conform  to  the  requirements  of  one  or  the  other  of  said 
paragraphs ;  provided,  however,  that  notes,  bonds  or  other 
securities,  the  payment  of  which  is  secured  by  any  mortgage 
or  deed  of  trust  executed  on  or  before  September  1,  1913, 
and  now  owned  by  any  savings  bank  in  this  state,  if  otherwise 
in  full  conformity  Avith  the  requirements  of  this  section,  need 
not  be  so  certified  by  the  superintendent  of  banks,  in  order 
to  be  legal  as  investments  for  savings  banks. 

The  legality  of  investments  heretofore  lawfully  made  pur- 
suant to  the  provisions  of  this  section,  or  of  any  law  of  this 
state  as  it  existed  on  and  subsequent  to  July  1,  1909,  shall  not 
be  affected  by  any  amendments  to  this  section  or  this  act ;  nor 
shall  any  such  amendments  require  the  changing  of  invest- 
ments once  lawfully  made  under  this  act.  Any  bonds  au- 
thorized by  this  section  as  a  legal  investment  for  sav- 
ings banks  may  be  carried  on  the  books  of  said  bank  at 
their  investment  value,  based  on  their  market  value  at  the 
time  they  were  originally  bought,  unless  the  superintendent 
of  banks  shall  require  any  or  all  of  the  bonds  which  may  there- 
after have  a  market  value  less  than  the  original  investment 
value  to  be  written  down  to  such  new  market  value  which  shall 
be  done  gradually  if  practicable  and  in  such  manner  as  he  may 
determine ;  or  he  may,  by  a  plan  of  amortization  to  be  deter- 
mined by  him,  require  such  gradual  extinction  of  premium  as 
will  bring  such  bonds  to  par  at  maturity.  No  savings 
bank  shall  hereafter  purchase  or  loan  money  upon  any  bond, 
note  or  other  evidence  of  indebtedness,  issued  by  any  "public 
utility,"  subject  to  the  jurisdiction,  regulation  or  control  of  the 
railroad  commission  of  this  state  under  the  provisions  of  the 
"public  utilities  act,"  approved  December  23,  1911,  and  acts 


890 


APPENDIX. 


161 


amendatory  thereof  or  supplemental  thereto,  unless  each  such 
bond,  note  or  other  evidence  of  indebtedness  was  either : 

(a)  Issued  prior  to  the  taking  effect  of  the  "public  utilities 
act" ;  or 

(b)  Issued  under  authority  of  the  railroad  commission,  in 
accordance  with  the  provisions  of  said  act ;  or 

(e)  A  note  issued  for  a  period  not  exceeding  twelve  months, 
in  accordance  with  the  provisions  of  subdivision  (b)  of  section 
fifty-two  of  said  act. 

No  provision  of  this  act,  and  no  act,  or  deed,  done  or  per- 
formed under  or  in  connection  therewith,  and  no  finding  made 
or  certificate  issued  under  any  provision  thereof,  shall  be  held 
or  construed  to  obligate  the  State  of  California  to  pay,  or  be 
liable  for  the  payment  of,  or  to  guarantee  in  any  manner  what- 
soever, the  regularity  or  the  validity  of  the  issuance  of  any 
stock  or  bond  certificate,  or  bond,  note,  or  other  evidence  of 
indebtedness  certified  under  any  provision  of  this  act,  by  the 
superintendent  of  banks,  as  being  in  conformity  with  the 
requirements  of  any  paragraph  of  subdivision  3  of  this  section. 

It  shall  not  be  lawful  for  any  individual,  firm,  association, 
bank,  trust  company,  stock  company,  co-partnership  or  corpo- 
ration to  advertise  by  newspaper  or  circular  or  in  any  other 
manner  that  any  bonds  are  legal  investments  for  savings 
banks  in  this  state  or  to  use  any  advertisement  which  might 
lead  the  public  to  believe  that  any  bonds  conform  to  the  require- 
ments of  law  relating  to  investments  by  savings  banks 
unless  such  bonds  are  such  as  are  specified  in  paragraphs 
(a),  (b),  (c),  (d),  (e),  (j),  or  (k)  of  subdivision  3  of  this 
section  or  shall,  in  the  manner  provided  in  this  act,  have  been 
certified  by  the  superintendent  of  banks  to  come  within  and 
fully  conform  to  the  requirements  of  one  or  the  other  of  para- 
graphs (f),  (g),  (h),  or  (i)  of  subdivision  3  of  this  section  or 
unless  such  advertisement  shall  have  been  approved  in  writing 
by  the  superintendent  of  banks  prior  to  publishing,  circulating 
or  otherwise  issuing  the  same.  Any  individual,  firm,  associa- 
tion, bank,  trust  company,  stock  company,  copartnership  or 
corporation  who  shall  advertise  any  bonds  in  violation  of 
the  provisions  of  this  paragraph  shall  be  guilty  of  a  misde- 
meanor and  shall  be  punishable  by  a  fine  not  exceeding  one 
thousand  dollars  or  by  imprisonment  in  a  county  jail  not 
exceeding  one  year  or  liy  both  such  fine  and  imprisonment. 
[Amendment  approved  June  3, 1915 ;  Stats.  1915,  p.  1113.  Also 
amended  April  21.  1911;  Stats.  1911,  p.  1004;  May  6.  1913: 
Stats.  1913,  p.  161.] 


§  61a  BANKING.  891 

Superintendent  of  banks  may  investigate  bonds.  Expenses. 
Opinions  of  attorneys.  Certified  bonds  deemed  legal  in- 
vestments. 

Sec.  61a.  The  superintendent  of  banks  shall  have  power, 
when  any  issue  of  bonds  or  securities  is  presented  to  him  for 
that  purpose,  to  investigate  and  ascertain  whether  such  bonds 
or  securities  come  within  and  fully  conform  to  all  the  require- 
ments of  paragraphs  (f),  (g),  (h),  or  (i)  of  subdivision  3  of 
section  sixty-one  of  this  act,  or  of  either  of  said  paragraphs. 
He  may  also  investigate  and  ascertain  for  what  period  of  time, 
and  upon  what  conditions,  any  franchise  granted  to  or  held  by 
any  corporation  issuing  any  such  bonds  or  securities  will 
remain  in  force,  and  any  other  facts  or  conditions  bearing 
upon  the  value  or  sufficiency  of  such  bonds.  The  actual 
expense  of  investigating  any  issue  of  bonds  or  securities  so 
presented  shall  be  paid  by  the  person  or  corporation  present- 
ing the  same  for  investigation,  and  the  superintendent  of 
banks,  before  making  such  investigation,  may  require  a  cash 
deposit  of  such  amount  as  he  may  deem  necessary  to  cover 
such  expense.  The  superintendent  of  banks  may  accept  and 
act  upon  the  opinions  and  appraisements  of  any  attorneys  or 
appraisers  which  may  be  presented  by  such  person  or  corpo- 
ration so  applying,  and  the  reports  of  any  of  the  executive 
officers  of  the  corporation  issuing  such  bonds  or  securities, 
on  any  question  of  fact  concerning  or  affecting  such  bonds 
or  securities,  the  security  thereof,  the  franchise  conditions 
herein  mentioned,  or  the  financial  condition  of  the  corporation 
issuing  the  same.  In  lieu  of  or  in  addition  to  such  opinions, 
appraisements  and  reports,  the  superintendent  of  banks  may, 
if  he  deems  proper,  have  any  or  all  such  matters  passed  upon 
and  certified  to  him  by  attorneys,  appraisers  or  accountants 
of^his  own  selection  at  the  expense  of  the  applicant.  If  the  su- 
perintendent of  banks  shall  find  from  such  investigation  that 
the  bonds  or  securities  so  presented  come  within  and  fully 
conform  to  all  the  requirements  of  any  of  said  paragraphs  of 
subdivision  3  of  section  sixty-one  of  this  act,  and  is  satisfied 
from  such  investigation  as  to  such  franchise  conditions,  he 
shall  so  certify  unless  for  any  reason  he  shall  be  of  the  opinion 
that  such  bonds  are  not  a  safe  or  proper  investment  for 
savings  banks,  and  in  such  event  or  if  such  bonds  shall  fail  to 
meet  the  requirements  of  this  act  such  certificate  must  be 
refused.  Any  bonds  certified  by  the  superintendent  of  banks 
as  in  this  section  provided  shall  thereafter  be  deemed  to  be 
legal  as  investments  for  savings  banks  until  three  months 
after  the  end  of  the  then  current  fiscal  year  of  such  corpora- 
tion unless  for  any  reason  the  superintendent  of  banks  shall 
have  revoked  such  certificate  and  during  such  time  but  not 


I 


I  • 


892  APPENDIX.  §  63, 

thereafter  bonds  so  certified  may  be  purchased  by  savings 
banks  without  further  certification.  The  superintendent  of 
banks  shall  keep  an  official  list  of  all  bonds  and  securities 
certified  by  him.  [Amendment  approved  June  3,  1915 ;  Stats. 
1915,  p.  1121.     Section  added  May  6,  1913 ;  Stats.  1913,  p.  168.] 

Savings  banks  not  to  trade  in  real  property.     Savings  banks 
borrowing  money. 

Sec.  62.  No  savings  bank  shall,  directly  or  indirectly,  deal  or 
trade  in  real  or  personal  property  in  any  other  case  or  for  any 
other  purpose  than  is  authorized  by  this  act,  and  shall  not 
contract  any  debt  or  liability,  for  any  purpose  whatever  than 
for  deposits,  except  as  in  this  section  provided. 

Savings  banks  may  pay  regular  depositors,  when  requested 
by  them,  by  draft  upon  deposits  to  the  credit  with  their 
banks,  and  charge  current  rate  of  exchange  for  such  drafts. 

No  savings  bank  shall  borrow  money,  or  pledge  or  hy- 
pothecate any  of  its  securities,  except  to  meet  the  immediate 
demands  of  its  own  depositors,  and  then  only  in  pursuance 
of  a  resolution  adopted  by  a  vote  of  a  majority  of  its  board  of 
directors,  duly  entered  upon  their  minutes,  wherein  shall  be 
recorded  the  ayes  and  nays  upon  each  vote;  also  with  the 
written  approval  of  the  superintendent  of  banks,  and  he  shall 
have  the  authority  to  fix  the  amount  to  be  borrowed,  and  the 
term  and  rate  of  interest  thereon ;  provided,  however,  that 
savings  banks  may,  in  the  manner  authorized  by  law,  and  Avith- 
out  the  written  approval  of  the  superintendent  of  banks, 
borrow  the  public  moneys  of  the  state,  counties,  cities  and 
counties,  and  towns  and  receive  such  public  moneys  on  deposit  -. 
provided,  also,  that  savings  banks  may  in  the  manner  au- 
thorized by  law,  and  without  the  written  approval  of  the 
superintendent  of  banks,  borrow  postal  savings  moneys  of  the 
United  States,  and  receive  such  postal  savings  moneys  on 
deposit.  [Amendment  approved  April  21,  1911;  Stats.  1911, 
p.  1013.] 

Certificates  of  deposit,  issue  of.     Time  certificates. 

Sec.  63.  Savings  banks  may  issue  general  certificates  of 
deposit,  which  are  transferable,  as  in  other  cases,  by  indorse- 
ment and  delivery ;  may  issue,  when  requested  bj'  the  depositor, 
special  certificates,  acknowledging  the  deposit  by  the  person 
therein  named  of  a  specified  sum  of  money,  and  expressly 
providing  on  the  face  of  such  certificate  that  the  sum  so  de- 
posited and  therein  named  may  be  transferred  only  on  the 
books  of  the  bank;  payment  thereafter  made  by  the  bank  to 
the  depositor  named  in  such  certificate,  or  to  his  assignee  named 
upon  the  books  of  the  bank,  or  in  case  of  death,  to  the  legal 
representative   of  such   person,   of  the   sum   for  which   such 


§  65  BANKING.  893 

special  certificate  was  issued,  shall  discharge  the  bank  from  all 
further  liability  on  account  of  the  money  so  paid. 

All  time  certificates  of  deposit,  issued  by  a  savings  bank, 
shall  be  subject  to  the  same  limitations  and  conditions  as  ap- 
plied to  other  deposits,  and  notice  thereof  shall  be  given  by  the 
words  "Subject  to  conditions  of  agreement  with  depositors" 
printed  on  the  face  of  the  certificate  issued. 

Time  and  condition  of  repayment  of  deposits.     Reserve  fund. 

Sec.  64.  Each  savings  bank  must  proscribe  by  its  by-laAvs, 
or  by  contract  with  its  depositors,  the  time  and  conditions  on 
which  repayment  is  to  be  made  to  depositors,  except  as  in  this 
act  otherwise  provided.  In  all  cases  the  by-laws  or  contracts 
shall  provide  that  notice  of  at  least  thirty  days  may,  at  the  op- 
tion of  any  such  bank,  be  required  to  be  given  of  intention  to 
withdraw  any  deposit  or  part  thereof,  but  whenever  there  is 
any  call  by  depositors  for  repayment  of  a  greater  amount  than 
the  bank  may  have  disposable  for  that  purpose,  the  directors 
or  officers  thereof  must  not  make  any  new  loan  or  investment 
of  the  funds  of  the  depositors  or  of  earnings  thereof  until 
such  excess  of  call  has  ceased.  The  directors  of  any  such  bank 
having  no  capital  stock  shall,  before  the  declaration  of  any 
dividend,  carry  at  least  one-tenth  part  of  the  net  profits  of 
such  bank,  for  the  preceding  half  year,  or  for  the  period 
covered  by  said  dividend,  to  its  reserve  fund.  Subject  to  the 
provisions  of  section  nineteen  of  this  act,  any  losses  sustained 
by  any  such  bank  may  be  charged  to  and  paid  out  of  its  re- 
serve fund.  A  larger  reserve  fund  may  be  created  and 
nothing  herein  contained  shall  be  construed  as  prohibitory 
thereof.  The  assets  of  any  such  bank  are  a  security  to  its 
depositors.  Any  such  bank  organized  without  capital  stock, 
may  provide  by  its  by-laws  for  the  disposal  of  any  amount  in 
its  reserve  fund  in  excess  of  the  amount  required  by  section 
nineteen  of  this  act  and  may  also  provide  for  final  disposal 
upon  the  dissolution  of  the  bank  of  its  reserve  fund  or  the 
balance  thereof  remaining  after  payment  of  any  losses  of  such 
bank.  [Amendment  approved  Mav  6,  1913';  Stats.  1913,  p. 
168.] 

No  loan  to  officer.     Loans  to  employees.     Record  of  loans. 
Section  not  applicable  to  religious  corporations. 

See.  65.  No  loan  shall  be  made,  for  himself  or  as  agent  or 
partner  of  another,  directly  or  indirectly,  to  any  director 
or  ofl[icer  of  any  savings  bank  by  such  bank,  or  on  the  endorse- 
ment, surety  or  guaranty  of  any  such  officer  or  director,  except 
that  loans  may  be  made  to  any  corporation  in  which  any 
director  or  officer  of  such  savings  bank  may  own  or  hold  a 
•  minority  number  of  shares  of  stock,  upon  authorization  of  a 


894  APPENDIX.  §  65 

majority  of  all  the  directors  of  such  savings  bank  and  the 
affirmative  vote  of  all  directors  of  such  savings  bank  present 
at  the  meeting  authorizing  such  loan;  provided,  however, 
that  such  loan  shall  in  all  other  respects  conform  to  and  com- 
ply with  all  other  provisions  of  this  act.  Such  interested 
director  or  officer  shall  not  vote  or  participate  in  any  manner 
in  the  action  of  the  board  on  such  loan.  Such  authorization 
shall  be  entered  upon  the  records  or  minutes  of  such  savings 
bank.  The  fact  of  making  such  loan,  the  names  of  the  directors 
authorizing  such  loan,  the  corporate  name  of  the  borrower,  the 
name  of  each  director  or  officer  of  such  bank  who  is  a  member, 
stockholder,  officer,  or  director  of  the  corporation  to  which 
such  loan  is  made,  the  amount  of  stock  held  by  him  in  such 
borrowing  corporation,  the  amount  of  such  loan,  the  rate  of 
interest  thereon,  the  time  when  the  loan  will  become  due,  the 
amount,  character  and  value  of  security  given  therefor  and 
the  fact  of  final  payment,  when  made,  shall  be  forthwith  re- 
ported in  writing  by  the  cashier  or  secretary  of  such  savings 
bank  to  the  superintendent  of  banks.  No  loan  may  be  made 
to  any  corporation,  a  majority  of  the  stock  of  which  is  owned 
or  controlled  by  any  one  or  more  of  the  directors  or  officers  of 
such  savings  bank,  except  with  the  previous  consent  of  the 
superintendent  of  banks. 

A  loan  may  be  made  to  any  agent  or  employee,  other  than 
an  officer  or  director,  of  any  savings  bank  by  such  bank  upon 
authorization  of  a  majority  of  all  the  directors  of  such  savings 
bank  and  an  affirmative  vote  of  all  directors  of  such  savings 
bank  present  at  the  meeting  authorizing  such  loan ;  provided, 
however,  that  such  loan  shall  in  all  respects  conform  to  and 
comply  with  all  other  provisions  of  this  act.  Such  authoriza- 
tion shall  be  entered  upon  the  records  or  minutes  of  such 
savings  bank.  The  fact  of  making  such  loan,  the  names  of  the 
directors  authorizing  such  loan,  the  name  of  the  borrower,  the 
nature  of  his  employment,  the  amount  of  such  loan,  the  rate 
of  interest  thereon,  the  time  when  the  loan  will  become  due, 
the  amount,  character  and  value  of  the  security  given 
therefor,  and  the  fact  of  final  payment,  when  made,  shall 
be  forthwith  reported  in  writing  by  the  cashier  or  secretary  of 
such  savings  bank  to  the  superintendent  of  banks.  Any 
officer  or  director  of  any  savings  bank,  who  knowingly  pro- 
cures a  loan  from  such  savings  bank,  contrary  to  the  provi- 
sions of  this  section,  shall  be  guilty  of  a  felony.  In  case  of  the 
neglect  or  failure  of  the  secretary  or  cashier  of  any  such  bank, 
to  report  to  the  superintendent  of  banks,  as  herein  provided, 
any  of  the  facts  so  required  to  be  reported,  the  bank  shall  be 
liable  therefor  and  shall  forfeit  to  the  people  of  the  State  of 


§  67  BANKING.  895 

California  twenty-five  dollars  per  day  for  each  day,  or  part 
thereof,  during  which  such  neglect  or  failure  continues. 

This  section  shall  not  apply  to  any  loan  made  to  a  reli- 
gious corporation,  club,  or  other  membership  corporation  of 
which  one  or  more  directors,  officers,  agents  or  employees  of 
such  savings  bank  may  be  members  or  officers,  but  in  which 
they  have  no  financial  interest.  [Amendment,  approved  June 
3,  1915;  Stats.  1915,  p.  1122.  Also  amended  May  6,  1913; 
Stats.  1913,  p.  169.] 

No  loan  exceeding  50  per  cent  of  stock.     Renewal  of  loan. 

Sec.  66.  No  savings  bank  shall  hereafter  make  any  loans  to 
any  person,  firm,  copartnership  or  corporation  to  an  amount 
exceeding  50  per  centum  of  the  actual  paid-up  capital  stock 
and  surplus  of  such  bank,  or  in  the  case  of  a  bank  organized 
without  capital  stock,  to  an  amount  exceeding  50  per  centum 
of  the  reserve  fund  of  such  bank;  provided,  however,  that  any 
savings  bank  having  a  paid-up  capital  and  surplus  of  less  than 
fifty  thousand  dollars,  but  not  less  than  twenty-five  thousand 
dollars,  may  make  any  such  loan  on  real  estate  security  to  an 
amount  not  exceeding  twenty-five  thousand  dollars ;  and  pro- 
vided further,  that  any  savings  bank  having  a  paid-up  capital 
and  surplus  of  less  than  twenty-five  thousand  dollars  may  make 
any  such  loan  on  real  estate  security  to  an  amount  not  exceed- 
ing its  paid-up  capital  and  surplus,- if  each  such  loan  in  all  other 
respects  conforms  to  the  provisions  of  this  act.  The  renewal 
or  extension  of  any  loan  heretofore  legally  made  by  any  sav- 
ings bank  shall  not  be  construed  to  be  a  "loan  hereafter  made" 
within  the  meaning  of  the  provisions  of  this  section.  The 
legality  of  investments  heretofore  lawfully  made  pursuant  to 
the  provisions  of  this  act  as  it  existed  on  and  subsequent  to 
July  1,  1909,  shall  not  be  affected  by  the  provisions  of  this 
section.  For  the  purposes  of  this  section  an  endorser  or  guar- 
antor shall  be  deemed  to  be  a  borrower.  [Amendment  ap- 
proved May  6,  1913;  Stats.  1913,  p.  170.] 

Limitations  on  loans.     Loans  on  bonds.     Loans  on  real  estate. 
Loans  on  capital  stock  of  corporations. 

Sec.  67.  1.  No  savings  bank  shall  loan  money  except  on 
adequate  security  of  real  or  personal  property,  and  no  such 
loan  shall  be  made  for  a  period  longer  than  ten  years.  No 
such  loan  shall  be  made  on  unsecured  notes;  provided,  that  a 
savings  bank  may,  under  such  conditions  and  regulations  as 
the  superintendent  of  banks  may  prescribe,  discount  or  pur- 
chase commercial  paper  of  the  kind  and  character  made  eligi- 
ble under  the  federal  reserve  act  and  the  then  current  regu- 
lation of  the  federal    reserve    board   for  re-discount  or  for 


896  APPENDIX.  §  67 

purchase  in  the  open  market  by  a  federal  reserve  bank ;  pro- 
vided, however,  that  no  savings  bank  shall  at  any  time  acquire 
by  discount  or  purchase  an  amount  of  such  commercial  paper 
greater  than  five  per  centum  of  its  deposits  nor  shall  any 
savings  bank  acquire,  directly  or  indirectly,  by  discount  or 
purchase,  any  such  commercial  paper  of  or  from  any  person, 
firm,  copartnership  or  corporation  in  an  amount  which  shall 
exceed  five  per  centum  of  the  capital  and  surplus  of  such  bank. 

2.  No  savings  bank  shall  invest  or  loan  an  amount  greater 
than  fifty  per  centum  of  its  actual  paid-up  capital  and  surplus 
on  any  one  bond  issue  of  the  class  specified  in  paragraph  (h) 
of  subdivision  3  of  section  sixty-one  of  this  act,  nor  more  than 
five  per  centum  of  its  assets  on  any  one  bond  issue  of  any 
other  class,  except  bonds  of  the  United  States,  of  the  State  of 
California,  bonds  for  which  the  faith  and  credit  of  the  United 
States  or  of  the  State  of  California  are  pledged,  or  bonds  of 
any  county,  city  and  county,  city  or  school  district  in  this 
state,  or  bonds  of  any  irrigation  district  such  as  are  legal  for 
investment  by  savings  banks. 

3.  No  savings  bank  shall  loan  money : 

(a)  On  bonds  of  the  character  specified  in  paragraphs  (a), 
(b),  (c),  and  (d)  of  sul)division  3  of  section  sixty-one  of  this 
act,  unless  such  bonds  sliall  have  a  market  value  at  least  ten  per 
centum  in  excess  of  the  amount  loaned  thereon ;  or, 

(b)  On  bonds  of  the  character  specified  in  paragraphs  (e), 
(f),  and  (g)  or  on  bonds  or  notes  of  the  character  specified  in 
paragraph  (i)  of  subdivision  3  of  section  sixty-one  of  this 
act,  unless  such  bonds  or  notes  shall  have  a  market  value  at 
least  fifteen  per  centum  in  excess  of  the  amount  loaned 
thereon ;  or, 

(c)  On  bonds  legal  for  investment  by  savings  banks  in  the 
states  of  New  York  or  Massachusetts,  unless  such  bonds  shall 
have  a  market  value  at  least  fifteen  per  centum  in  excess  of  the 
amount  loaned  thereon ;  or, 

(d)  On  personal  property  unless  such  personal  property 
shall  have  a  market  value  at  least  fifty  per  centum  in  excess 
of  the  amount  loaned  thereon ;  or, 

(e)  On  other  bonds,  or  on  the  capital  stock  of  any  corpora- 
tion, unless  such  bonds  or  stock  shall  have  a  market  value  at 
least  fifty  per  centum  in  excess  of  the  amount  loaned  thereon; 
provided,  however,  that  no  loan  shall  be  made  upon  the  capi- 
tal stock  of  any  bank  unless  such  bank  has  been  in  existence 
at  least  two  years  and  has  earned  and  paid  a  dividend  on  its^ 
capital  stock. 

4.  No  savings  bank  shall  make  any  loan  on  the  security  of  j 
real  estate,  except  it  be  a  first  lien,  and  in  no  event  to  exceedj 
sixty  per  centum  of  the  market  value  of  any  real  estate  takeui 


§  68  BANKING.  897 

as  security  except  for  the  purpose  of  facilitating  the  sale  of 
property  owned  by  sucli  saving:  hank;  provided  that  a  second 
lien  may  be  accepted  to  secure  the  repayment  of  a  debt  pre- 
viously contracted  in  ^ood  faith ;  and  provided,  also,  that  any 
savings  bank  holding  a  first  mortgage  or  deed  of  trust  on 
real  estate  may  take  or  purchase  and  hold  another  and  imme- 
diately subsequent  mortgage  or  deed  of  trust  thereon,  but  all 
such  loans  shall  not  exceed  in  the  aggregate  sixty  per  centum 
of  the  market  value  of  the  real  estate  securing  the  same;  pro- 
vided, further,  that  a  savings  bank  may  loan  not  to  exceed 
ninety  per  centum  of  the  face  value  of  a  note  or  bond  secured 
by  a  first  mortgage  or  deed  of  trust  on  real  estate,  but  in  no 
event  shall  any  such  loan  exceed  ninety  per  centum  of  sixty 
per  centum  of  the  market  value  of  the  real  estate  covered  by 
said  mortgage  or  deed  of  trust. 

5.  No  savings  bank  shall  loan  to  any  one  borrower  on  the  se- 
curity of  the  capital  stock  of  any  corporation  an  amount  ex- 
ceeding ten  per  centum  of  the  capita]  stock  and  surplus  of 
such  savings  bank ;  provided,  that  all  loans  on  the  capital  stock 
of  any  one  corporation  shall  not  exceed  in  the  aggregate 
twenty-five  per  centum  of  the  capital  stock  and  surplus  of  such 
savings  bank.  No  savings  bank  shall  purchase,  invest  or  loan 
its  canital,  surplus  or  the  money  of  its  depositors,  or  any  part 
of  either,  in  mining  shares  or  stock. 

Any  president  or  managing  officer  Avho  knowingly  consents 
to  a  violation  of  any  provision  of  this  section  shall  be  guilty  of 
a  felony.  [Amendment  approved  June  3,  1915 ;  Stats.  1915, 
p.  1123;  also  amended  May  6,  1913;  Stats.  1913,  p.  170.] 

Reserves  of  savings  banks.     Deposits  with  commercial  banks. 

Sec.  68.  Everv  savings  bank  or  savings  department  of  a 
bank,  shall  at  all  times  maintain  total  reserves  equivalent  to 
five  per  centum  of  the  aggregate  amount  of  its  deposits;  at 
least  two  and  one-half  per  centum  of  such  deposits  shall  be 
maintained  as  reserves  on  hand,  one-half  of  which  shall  con- 
sist of  gold  coin,  gold  bullion.  United  States  gold  certificates 
or  United  States  notes  and  one-half  of  which  shall  consist  of 
gold  coin,  gold  bullion,  United  States  gold  certificates.  United 
States  notes  or  any  other  form  of  currency  authorized  by  the 
laws  of  the  United  States  and  two  and  one-half  per  centum 
of  such  deposits  may  be  maintained  as  reserves  on  hand  and 
may  consist  of  bonds  of  the  United  States  or  of  gold  coin, 
gold  bullion.  United  States  gold  certificates,  United  States 
notes  or  any  other  form  of  currency  authorized  by  the  laws  of 
the  United  States  or  may  be  maintained  as  reserves  on  deposit 
subject  to  call  with  any  reserve  depositary  provided  for  in  sec- 
tion twenty  of  this  act ;  provided,  however,  that  no  savings 

Civ.  Code — 57 


898  APPENDIX.  §  69 

bank  or  savings  department  shall  be  required  to  maintain  re- 
serves on  hand  in  excess  of  four  hundred  thousand  dollars,  and 
Avhen  such  reserves  on  hand  reach  that  amount,  the  balance  of 
total  reserves  necessary  to  make  up  the  five  per  centum  may 
be  kept  as  reserves  on  deposit  subject  to  call  with  any  reserve 
depositary  provided  for  in  section  twenty  of  this  act.  No 
new  loan  shall  be  made  during  any  deficiency  in  the  total 
reserves.  Deposits  with  any  commercial  bank  or  commercial 
department  of  a  bank,  on  open  account,  as  provided  in  this 
section,  shall  be  permitted,  and  shall  not  be  construed  as  loans. 
Not  more  than  five  per  centum  of  the  deposits  of  any  savings 
bank  shall  be  deposited  with  any  one  bank,  except  with  the 
consent  of  the  superintendent  of  banks.  Not  more  than  fif- 
teen per  centum  of  the  deposits  of  any  savings  bank  shall-  be 
deposited  with  all  other  banks,  except  with  the  consent  of  the 
superintendent  of  banks.  No  savings  bank  or  savings  depart- 
ment shall  receive  deposits  of  other  banks  other  than  savings 
deposits  and  such  deposits  shall  not  be  treated  or  considered 
as  a  part  of  the  reserves  on  deposit  of  such  depositing  bank ; 
provided,  that  the  sum  so  deposited  shall  not  exceed  ten  thou- 
sand dollars.  [Amendment  approved  June  3,  1915;  Stats. 
1915,  p.  1125.  Also  amended  April  21,  1911;  Stats.  1911, 
p.  1007;  May  6,  1913;  Stats.  1913,  p.  171.] 

Deposits  of  deceased  persons  may  remain  in  savings  banks. 

Sec.  681/2-  Where  a  decedent,  at  the  time  of  his  or  her 
death,  left  moneys  on  deposit  with  a  savings  bank,  it  shall 
be  lawful  for  any  public  administrator,  who  shall  become  the 
administrator  of  the  estate,  to  allow  such  deposit  to  remain 
in  said  savings  bank,  and  also,  it  shall  be  lawful  for  him  to 
deposit  therein  to  the  account  of  said  decedent,  any  and  all 
moneys  of  said  estate  not  required  for  the  current  expenses 
of  administration.  Such  deposit,  whether  made  by  the  dece- 
dent or  a  public  administrator,  shall  relieve  the  public  admin- 
istrator from  depositing  the  same  Avith  the  county  treasurer. 
Moneys  so  deposited,  whether  by  the  decedent  or  by  a  public 
administrator,  may  be  dra^vn  upon  demand  without  notice, 
upon  the  order  of  said  administrator,  countersigned  by  a  judge 
of  a  superior  court,  when  required  for  the  purpose  of  ad- 
ministration or  otherwise.  [New  section  approved  April  21, 
1911;  Stats.  1911,  p.  1007.] 

Savings  banks  to  be  conducted  under  provisions  of  this  act. 

Sec.  69.  Every  savings  bank,  and  the  business  of  every 
savings  department  of  every  other  bank,  must  be  conducted 
under  and  in  accordance  with  the  provisions  of  this  act. 


§  80  BANKING.  899 


ARTICLE  III. 

COMMERCIAL    BANKS. 

§  80.  Loans  of  commercial  banks.  "V^'ithout  security.  With  security. 
Eestrictions  not  applicable  to  bills  of  exchange,  etc.  Computa- 
tion of  liabilities  to  commercial  bank. 

§  81.     Loans;  securities  of  corporations. 

§  82.     Capital  of  commercial  banks. 

§  83.  Loans  to  officers,  etc.  Credit  to  directors,  etc.  Particulars  of 
loan  reported.  Penalty.  Not  applicable  to  religious  corpora- 
tions. 

§  84.     Investments  in  bank  premises. 

§  85.     Limitation   on  funds   deposited   by   commercial   bank. 

Loans  of  commercial  banks.  Without  security.  With  secur- 
ity. Restrictions  not  applicable  to  bills  of  exchange,  etc. 
Computation  of  liabilities  to  a  commercial  bank. 

See.  80.  No  commercial  bank  shall  make  any  loans,  directly 
or  indirectly,  to  any  person,  firm,  copartnership  or  corporation, 
in  an  amount  which,  including  therein  any  extension  of  credit 
to  such  person,  firm,  copartnership  or  corporation,  by  means 
of  letters  of  credit,  or  by  acceptance  of  drafts  for,  or  the 
discount  or  purchase  of  the  notes,  bills  of  exchange  or  other 
obligations  of,  such  person,  firm,  copartnership  or  corpora- 
tion, shall  exceed  the  foUoAving  percentage  of  its  capital  and 
surplus : 

1.  Ten  per  centum  without  security,  except  where  such  capi- 
tal stock  and  surplus  is  not  more  than  twenty-five  thousand 
dollars,  in  which  event  an  amount  not  to  exceed  twenty  per 
centum  of  such  capital  stock  and  surplus  may  be  loaned  with- 
out security,  and  where  such  capital  stock  and  surplus  is 
greater  than  twenty-five  thousand  dollars  and  does  not  exceed 
fifty  thousand  dollars,  a  sum  not  exceeding  five  thousand  dol- 
lar.#  may  be  loaned  without  security.  Nothing  herein  shall 
prohibit  any  commercial  bank  from  taking  or  receiving  any 
kind,  character  or  amount  of  security  whatsoever,  either  real 
or  personal,  for  the  protection  of  any  loan  made  under  the  pro- 
visions of  this  subdivision,  but  no  such  loan  or  any  part  thereof 
shall  be  considered  or  construed  as  a  secured  loan  unless  the 
whole  thereof  is  loaned  upon  security  worth  at  least  fifteen 
per  centum  more  than  the  amount  of  such  loan ;  or, 

2.  Fifteen  per  centum,  in  addition  to  the  amount  that  may 
be  loaned  under  the  provisions  of  subdivision  one  of  this  sec- 
tion, upon  security  worth  at  least  fifteen  per  centum  more  than 
the  amount  of  such  loan  so  secured ;  provided,  the  total  amount 
which  can  be  loaned  under  subdivisions  one  and  two  hereof 
cannot  exceed  twenty-five  per  centum  in  all ;  provided,  how- 
ever, that  a  separate  note  or  notes  shall  be  taken  for  the  unse- 
cured loans  and  a  separate  note  or  notes  shall  be  taken  for  the 


900  APPENDIX.  §  80 

secured  loans,  and  the  secured  and  unsecured  loans  shall  not 
be  combined  in  any  way  Avithin  one  note,  or  notes ;  or, 

3.  Twenty-five  per  centum  upon  security  worth  at  least  fif- 
teen per  centum  more  than  the  amount  of  its  loans  so  secured ; 
provided,  however,  that  Avhcn  secured  loans  to  this  amount  or 
any  amount  in  excess  of  fifteen  per  centum  are  made,  then  no 
unsecured  loans  shall  be  permitted  in  addition  to  such  se- 
cured loans ;  or, 

4.  Forty  per  centum,  provided  such  loans  are  upon  commer- 
cial or  business  paper  actually  owned  by  the  person  nego- 
tiating the  same  to  such  bank,  and  are  endorsed  by  such  per- 
son without  limitation;  provided,  however,  that  in  addition  to 
the  amounts  permitted  to  be  loaned  by  subdivisions  one,  two  or 
three  of  this  section,  an  amount  may  be  loaned  on  the  securities 
fixed  by  subdivision  four  of  this  section,  Avhich  taken  with  the 
amounts  so  permitted  by  said  subdivisions  one,  two  or  three 
will  not  exceed  forty  per  centum ;  provided,  also,  that  the 
restrictions  under  this  section  shall  not  apply  to  bills  of  ex- 
change or  drafts,  Avith  bills  of  lading  attached,  drawn  in 
good  faith  against  actual  existing  values ;  provided,  further, 
that  any  commercial  bank,  having  first  obtained  in  writing  the 
consent  of  the  superintendent  of  banks  so  to  do  and  under 
such  conditions  and  regulations  as  may  be  prescribed  by  him, 
may  accept  drafts  or  bills  of  exchange  drawn  upon  it  running 
for  a  period  not  longer  than  six  months,  but  no  commercial 
bank  shall  accept  such  drafts  or  bills  of  exchange  in  an  amount 
greater  at  any  time  in  the  outstanding  aggregate  than  one-half 
of  its  capital  and  surplus ;  but  such  acceptance  or  acceptances 
must  be  drawn  by  a  person,  firm,  copartnership  or  corporation 
engaged  in  agricultural,  industrial  or  commercial  business 
directly  connected  with  the  production,  manufacture,  purchase, 
sale-  or  consignment  of  the  goods  involved  in  the  transaction 
in  which  the  acceptance  originated ;  provided,  however,  that 
no  such  acceptance  or  acceptances  to  any  one  person,  firm, 
copartnership  or  corporation  shall  exceed  ten  per  centum  of 
the    capital    and   surplus    of   such   bank. 

In  computing  the  total  liabilities  of  any  jjerson  to  a  com- 
mercial bank  there  shall  be  included  all  liabilities  to  the  bank 
of  any  copartnership  or  unincorporated  association  of  which 
he  is  a  member,  and  any  loans  made  for  his  benefit  or  for  the 
benefit  of  such  copartnership  or  unincorporated  association; 
of  any  firm,  copartnership  or  unincorporated  association  to 
a  commercial  bank  there  shall  be  included  all  liabilities  of  its 
individual  members  and  all  loans  made  for  the  benefit  of  such 
copartnership  or  unincorporated  association  or  any  member 
thereof;  and  of  any  corporation  to  a  commercial  bank  there 
shall  be  included  all  loans  made  for  the  benefit  of  the  corpora- 


§  82  BANKING.  901 

tion.  [Amendment  approved  June  3,  1915  ;  Stats.  1915,  p.  1125. 
Also  amended  April  21,  1911;  Stats.  1911,  p.  1014;  May  6,  1913; 
Stats.  1913,  p.  172.] 

Loans;  securities  of  corporations. 

Sec.  81.  No  loan  shall  be  made  by  any  commercial  bank 
upon  the  securities  of  one  or  more  corporations,  the  payment 
of  which  is  undertaken,  in  whole  or  in  part,  severally,  but  not 
jointly,  by  two  or  more  individuals,  firms,  or  corporations : 

(a)  If  the  borrower  or  underwriters  be  obligated  absolutely 
or  contingently  to  purchase  the  securities,  or  any  of  them, 
collateral  to  such  loan,  unless  the  borrowers  or  underwriters 
shall  have  paid  on  account  of  the  purchase  of  such  securities 
an  amount  in  cash,  or  its  equivalent,  equal  to  at  least  25  per 
centum  of  the  several  amounts  for  Avhich  they  remain  obligated 
in  completing  the  purchase  of  such  securities ; 

(b)  If  the  commercial  bank  making  such  loan  be  liable, 
directly  or  indirectly,  or  contingently,  for  the  repayment  of 
such  loan  or  any  part  thereof; 

(c)  If  its  term,  including  any  renewal  thereof  by  agree- 
ment, express  or  implied,  exceed  the  period  of  one  year ; 

(d)  Or  to  an  amount  under  any  circumstances  in  excess  of  25 
per  centum  of  the  capital  and  surplus  of  the  commercial  bank 
making  such  loan. 

Capital  of  commercial  banks. 

Sec.  82.  Every  commercial  bank  hereafter  organized  must 
have  paid  up  in  cash  a  capital  stock  of  not  less  than, 

(a)  Twenty-five  thousand  dollars  if  its  principal  place  of 
business  is  located  in  any  locality  the  population  of  which  does 
not  exceed  five  thousand  persons ; 

(b)  Fifty  thousand  dollars  if  its  principal  place  of  business 
is  located  in  any  city  the  population  of  which  is  more  than  five 
thousand  persons  but  does  not  exceed  twenty-five  thousand 
persons ; 

(c)  One  hundred  thousand  dollars  if  its  principal  place  of 
business  is  located  in  any  city  the  population  of  which  is  more 
than  twenty-five  thousand  persons  but  does  not  exce'ed  one 
hundred  thousand  persons ; 

(d)  Two  hundred  thousand  dollars  if  its  principal  place  of 
business  is  located  in  any  city  the  population  of  which  is  more 
than  one  hundred  thousand  persons  but  does  not  exceed  two 
hundred  thousand  persons ; 

(e)  Three  hundred  thousand  dollars  if  its  principal  place 
of  business  is  located  in  any  city  the  population  of  which  is 
more  than  two  hundred  thousand  persons. 

The  foregoing  classification  shall  not  apply  to  any  commer- 
cial bank  already  in  existence  which  has  received  its  certificate 


902  APPENDIX.  §  83 

to  do  a  banking  business  from  the  superintendent  of  banks : 
nor  to  any  bank  the  location  of  which  shall  have  been  included 
by  annexation  or  consolidation  Avithin  the  limits  of  a  cjty  of 
a  class  requiring  a  larger  capitalization,  but  no  bank  thus 
excepted  shall  be  permitted  to  establish  any  new  branch  office 
as  provided  in  section  nine  of  this  act  or  to  remove  its  place 
of  business  from  the  original  limits  of  the  city  or  township 
wherein  it  was  located  prior  to  such  annexation  or  consoli- 
dation until  it  shall  have  the  capital  required  of  banks  in  such 
city  not  within  said  exception.  Such  excepted  banks  may 
not  in  any  case  decrease  their  capital  stock  but  may  increase 
the  same  in  the  manner  provided  by  law  to  an  amount  either 
greater  or  less  than  that  required  of  banks  in  such  city  not 
within  said  exception ;  provided,  that  nothing  herein  shall  be 
be  construed  to  affect  the  provisions  of  section  nineteen  of  this 
act  relative  to  the  proportion  of  capital  and  surplus  to  de- 
posits or  of  section  twentj'-three  of  this  act  relative  to  the  cap- 
ital stock  required  of  banks  doing  a  departmental  business. 
The  provisions  of  section  twenty-three  of  this  act,  as  to  popula- 
tion, shall  apply  to  any  bank  organized  under  the  provisions 
of  this  section.  [Amendment  approved  Mav  6,  1913;  Stats. 
1913,  p.  173.  Also  amended  April  21,  1911;  Stats.  1911, 
p.  1014.] 

Loans  to  officers,  etc.  Credit  to  directors,  etc.  Particulars  of 
loan  reported.  Penalty.  Not  applicable  to  religious  cor- 
porations. 

Sec.  83.  No  loan  shall  be  made  for  himself  or  as  agent  or 
partner  of  another,  directly  or  indirectly,  to  any  officer  of  any 
commercial  bank  by  such  bank  or  on  the  endorsement,  surety, 
or  guaranty  of  any  such  officer;  provided,  that  a  loan  may  be 
made  to  a  corporation  of  which  any  officer  of  a  commercial 
bank,  proposing  to  make  such  loan,  is  a  minority  stockholder, 
director,  officer,  agent  or  employee.  Loans  to  any  director, 
agent  or  employee,  other  than  an  officer,  or  to  any  firm,  co- 
partnership or  corporation  of  which  any  director,  agent,  or 
employee  other  than  an  officer  is  a  member,  stockholder,  di- 
rector, officer,  agent  or  other  employee,  or  to  any  person, 
firm,  copartnership  or  corporation  on  the  endorsement,  surety, 
or  guaranty  of  any  such  director  other  than  an  officer,  agent 
or  other  employee,  can  be  made,  by  any  commercial  bank. 
Loans  herein  authorized  can  be  made  only  on  authoriza- 
tion of  or  confirmation  within  thirty  days  after  making  such 
loan,  by  a  majority  of  all  the  directors  of  such  bank  and  the 
affirmative  vote  of  all  directors  of  such  bank  present  at  the 
meeting  authorizing  or  confirming  such  loan.  Such  interested 
director  shall  not  vote  or  participate  in  any  manner  in  the 


§  83  BANKING.  903 

action  of  the  board  on  such  loan.     The  board  of  directors  of 
any  such  bank  may  fix  the  total  amount  of  credit  that  may 
at    any   one   time    during,  the   twelve   months   next   succeeding 
be  given  to  any  director,  agent,  or  other  employee,  other  than 
an    officer,    or    to    any    firm,    copartnership    or   corporation    in 
which  any  director,  agent,  or  other  employee  other  than  an 
officer  is   a   member,   stockholder,    director,   officer,    agent   or 
other  employee  or  to  any  corporation  of  which  any  officer  of 
a   commercial  bank,   proposing   to   fix   such   total   amount   of 
credit,   is  a  minority   stockholder,   director,   officer,   agent   or 
employee,  and  any  or  all  loans  made  within  or  up  to  the  total 
amount  of  such  authorized  credit  may  at  any  time  during 
said  twelve  months,  be  renewed  from  time  to  time,  in  whole 
or  in  part,  by  the  officers  of  the"  bank  without  any  further  vote 
or  action  on  the  part  of  the  board  of  directors.     Each  such 
authorization  shall  be  entered  upon  the  records  or  minutes  of 
said  bank.     No  director  shall  vote  or  participate  in  any  man- 
ner in  such  action  of  the  board  fixing  the  total  amount  of 
credit  that  may  at  any  one  time  be  given  to  himself  or  to  any 
firm,   copartnership   or  corporation  in  which  he  is  a  member, 
stockholder,  director,  officer,  agent  or  other  employee.     The 
fact  of  making  such  loan,  the  names  of  the  directors  authoriz- 
ing such    loan,    the  name    of    the  director,  agent  or  employee, 
obtaining  such  loan,  or  the  name  of  the  firm,  co-partnership 
or  corporation  in  which  such  director,  agent  or  employee  is 
interested  or  the  name  of  the  corporation,  of  which  any  officer 
of  a  commercial  bank  is  a  minority  stockholder,  director,  offi- 
cer, agent  or  employee,  obtaining  such  loan,  the  amount  of 
such  loan,  the  rate  of  interest  thereon,  the  time  when  the  loan 
will  become  due,  the  amount,  character  and  value  of  security 
given  therefor,  if  any,  and  the  fact  of  final  payment  when  made 
shall  forthwith  be  reported  in  writing  by  the  cashier  or  secre- 
tary of  such  bank  to  the  superintendent  of  banks.     In  case  a 
loan  is  made  to  a  corporation  there  shall  be  reported  in  the 
same  manner  the  name  of  each  director  and  officer  of  such  bank 
who  is  a  member,  stockholder,  director,  officer  or  employee  of 
such  borrowing  corporation  and  the  amount  of  stock  held  by 
him  in  such  borrowing  corporation.     All  the  provisions  of  this 
section  relating  to  reports  shall  apply  to  the  granting  of  credit 
and  all  loans  made  under  any  credit  given  and  payments  made 
thereon  shall  also  be  reported  immediately  after  the  same  are 
made.     In  case  of  a  loan  made  without  the  previous  authoriza- 
tion of  the  directors,  the  fact  of  making  such  loan  shall  forth- 
with be  reported  and  the  action  of  the  board  of  directors,  in 
confirming  or  refusing  to  confirm  such  loan  within  thirty  days 
thereafter,  and  the  fact  of  final  payment  when  made  shall  be 
reported  in  the  same  manner  as  herein  required  for  loans  made 


904  APPENDIX.  §  85 

under  previous  authorization.  Any  officer,  director,  agent,  or 
employee  of  a  commercial  bank,  who  knowingly  procures  a  loan 
from  such  commercial  bank  contrary,  to  the  provisions  of  this 
section,  shall  be  guilty  of  a  felony.  In  case  of  the  neglect 
or  failure  of  the  secretary  or  cashier  of  any  such  bank,  to 
report  to  the  superintendent  of  banks,  as  herein  provided,  any 
of  the  facts  so  required  to  be  reported,  the  bank  shall  be  liable 
therefor  and  shall  forfeit  to  the  people  of  the  State  of  Cali- 
fornia twenty-five  dollars  per  day  for  each  day,  or  part  thereof, 
during  which  such  neglect  or  failure  continues. 

This  section  shall  not  apply  to  any  loan  made  to  a  religious 
corporation,  club,  or  other  membership  corporation  of  which 
one  or  more  directors,  officers,  agents  or  employees  of  such 
commercial  bank  may  be  members  or  officers  but  in  which  they 
have  no  financial  interest.  [Amendment  approved  June  3, 
1915;  Stats.  1915,  p.  1127.  Also  amended  April  21,  1911; 
Stats.  1911,  p.  1015;  May  6,  1913,  Stats.  1913,  p.  174.] 

Investments  in  bank  premises. 

Sec.  84.  No  commercial  bank  shall  invest  an  amount  ex- 
ceeding its  paid-up  capital  and  surplus  in  the  lot  and  building 
in  which  the  business  of  the  bank  is  carried  on,  furniture  and 
fixtures,  vaults  and  safe  deposit  vaults  and  boxes  necessary 
or  proper  to  carry  on  its  banking  business ;  and  hereafter  the 
authority  of  a  two-thirds  vote  of  all  the  directors  shall  be 
necessary  to  authorize  the  purchase  of  such  lot  and  building 
or  the  construction  of  such  building.  [Amendment  approved 
May  6,  1913;  Stats.  1913,  p.  175.  Section  added  April  21, 
1911,  Stats.  1911,  p.  1016.] 

Limitation  on  funds  deposited  by  commercial  bank. 

Sec.  85.  The  superintendent  of  banks  shall  have  power  to 
limit  the  amount  of  funds  that  may  be  deposited  by  any  com- 
mercial bank  with  any  other  commercial  bank.  [New  section 
approved  June  3,  1915 ;  Stats.  1915,  p.  1129.] 


§ 

91. 

§ 

92. 

§ 

93. 

§ 

94. 

§ 

95. 

§ 

96. 

§ 

97. 

§ 

98. 

90  BANKING.  905 


ARTICLE  IV. 

TRUST    COMPANIES. 

§    90.     Trust    companies.     Capital.     Eeeeiving   deposits.     Segregation    of 
capital  and   surplus.     Not  guardians  of  persons.     Foreign   cor- 
porations, what  may  do. 
Deposit  of  trust  funds  by  executor,  etc. 
Deposit  of  trust  funds  by  public  administrator. 
Court  may  order  deposit. 
No  bond  required. 
Interest  on  deposits. 

Security  deposit  with  state  treasurer.     Securities  acceptable.     Ap- 
proval by  superintendent  of  bank's.     Exchange  of  securities. 
Mortgage  of  building. 

When    trust    funds    exceed    $500,000.     When    trust    funds    amount 
to     $1,000,000.     Treasurer's     receipt.     "Trust     funds"     defined. 
Penalty.     Withdrawal    of   securities.     Validity   of   acts. 
§    99.     Securities   accompanied  by  policy  of   mortgage  insurance   or   ab- 
stract of  title.     Fees. 
§  100.     Paid  up  capital  required.      [Eepealed.] 
§  101.     Classification  of  trusts.     Court  trust.     Private  trust.     Inspection 

and  supervision.     Keports.     Receiving  money  in  escrow. 
§  102.     Discontinuance  of  trust  business. 

§  103.     Secrecy    of    communications    concerning    private    trusts. 
§  104.     Word  "trust"  prohibited  to  whom.     Effect  of  use  of  word  "trust." 

[Eepealed.] 
§  105.     Investment  of  capital,  etc. 
§  106.     Trust  company  doing  commercial  business. 

§  107.     Departmental  business   as  title  insurance   company  and   as   trust 
company. 

Trust  companies.  Capital.  Receiving-  Deposits.  Segregation 
of  capital  and  surplus.  Not  gnardians  of  persons.  For- 
eign corporations,  what  may  do. 

Sec.  90.  Any  corporation  which  has  heen  or  shall  be  incor- 
porated under  the  general  corporation  la^vs  of  this  state  which 
is  authorized  by  its  articles  of  incorporation  to  act  as  executor, 
administrator,  guardian  of  estates,  assignee,  receiver,  deposi- 
tary or  trustee,  under  appointment  of  any  court  or  by  au- 
thority of  any  law  of  this  state,  or  as  trustee  for  any  purpose 
permitted  by  law,  which  has  its  principal  place  of  business  in 
a  city  in  which  the  population  does  not  exceed  one  hundred 
thousand  persons  and  which  has  a  capital  of  not  less  than  one 
hundred  thousand  dollars  actually  paid  in,  in  cash,  assigned 
to  or  available  for  the  i^urpose  of  conducting  business  in  any 
such  capacity,  or  trust  business  of  any  character  permitted  by 
law,  and  which  has  made  Avith  the  state  treasurer  the  deposit 
of  money  or  securities  of  the  character  and  in  the  amount  re- 
quired by  the  terms  of  section  ninety-six  of  this  act,  and  which 
has  received  from  the  superintendent  of  banks  the  certificate 
of  authority  required  by  the  terms  of  section  one  hundred  and 
twenty-seven  of  this  act,  to  transact  such  business,  and  any 


906  APPENDIX.  §  90 

corporation  which  has  been  or  shall  be  incorporated  under  the 
general  corporation  laws  of  this  state,  which  is  authorized  by 
its  articles  of  incorporation  to  act  as  executor,  administrator, 
guardian  of  estates,  assignee,  receiver,  depositary  or  trustee, 
under  appointment  of  any  court  or  by  authority  of  any  law 
of  this  state,  or  as  trustee  for  any  purpose  permitted  by  law, 
which  has  its  principal  place  of  business  in  a  city  in  which  the 
population  exceeds  one  hundred  thousand  persons  and  which 
has  a  capital  of  at  least  two  hundred  thousand  dollars  actually 
paid  in,  in  cash,  assigned  to  or  available  for  the  purpose  of 
conducting  business  in  any  such  capacity,  or  trust  business  of 
any  character  permitted  by  law,  and  v.'hich  has  made  with  the 
state  treasurer  the  deposit  of  money  or  securities  of  the  char- 
acter and  in  the  amount  required  by  the  terms  of  section 
ninety-six  of  this  act,  and  which  has  received  from  the  superin- 
tendent of  banks. the  certificate  of  authority  required  by  the 
terms  of  section  one  hundred  twenty-seven  of  this  act,  to 
transact  such  business,  may  act,  or  may  be  appointed  by  any 
court  to  act,  in  any  such  capacity  in  like  manner  as  an  in- 
dividual and  when  so  qualified  shall  be  known  as  a  trust  com- 
pany. Any  such  trust  company  may,  as  provided  in  this  act, 
accept  or  receive  any  deposit  of  money  or  personal  property 
authorized,  directed  or  permitted  to  be  made  with  any  such 
corporation  by  any  court  or  law  of  this  state,  and  may  accept 
and  execute  any  trust  provided  for  in  this  act,  or  permitted 
by  any  law  of  this  state,  to  be  taken,  accepted  or  executed  by 
an  individual.  Any  such  trust  company,  if  located  in  a  city 
the  population  of  which  does  not  exceed  one  hundred  thousand 
persons  must  segregate  that  portion  of  its  capital  and  surplus 
assigned  to  or  available  for  its  trust  business  and  must  appor- 
tion and  set  aside  at  least  fifty  thousand  dollars  of  such  paid-up 
capital  as  security  for  the  faithful  performance  and  execution 
of  all  private  trusts  accepted  by  it  and  must  also  apportion 
and  set  aside  at  least  fifty  thousand  dollars  of  such  paid-up 
capital  as  security  for  the  faithful  performance  and  execution 
of  all  court  trusts  accepted  by  it  and  whenever  such  trust  -com- 
pany shall,  under  the  provisions  of  sections  96  and  98  of  this 
act,  be  required  to  make  the  first  additional  deposit  of  securi- 
ties Avith  the  state  treasurer,  such  trust  company  must  also 
apportion  and  set  aside  an  additional  fifty  thousand  dollars  of 
paid-up  capital  as  security  for  the  faithful  performance  and 
execution  of  all  private  trusts  accepted  by  it  and  must  also 
apportion  and  set  aside  an  additional  fifty  thousand  dollars  of 
paid-up  capital  as  security  for  the  faithful  performance  and 
execution  of  all  court  trusts  accepted  by  it,  and  any  trust 
company,  if  located  in  a  city,  the  population  of  which  exceeds 
one  hundred  thousand  persons,  must  segregate  that  portion  of 


§  90  BANKING.  907 

its  capital  and  surplus  assigned  to  or  available  for  its  trust 
business  and  must  apportion  and  set  aside  at  least  one  hun- 
dred thousand  dollars  of  such  paid-up  capital  as  security  for 
the  faithful  performance  and  execution  of  all  private  trusts 
accepted  by  it  and  must  also  apportion  and  set  aside  at  least 
one  hundred  thousand  dollars  of  such  paid-up  capital  as  se- 
curity for  the  faithful  performance  and  execution  of  all  court 
trusts  accepted  by  it;  provided,  that  no  such  trust  company 
shall  at  any  time  be  required  to  apportion  and  set  aside  any 
portion  of  its  surplus  as  security  for  the  faithful  performance 
of  such  private  trusts,  nor  shall  it  be  prohibited  from  so  doing ; 
and  provided,  further,  that  the  respective  amounts  of  capital 
or  capital  and  surplus  so  apportioned  and  set  aside  shall  be 
treated  in  all  respects  as  the  separate  capital  or  capital  and 
surplus  of  each  respective  kind  or  class  of  business,  as  though 
the  same  were  conducted  by  separate  and  distinct  corpora- 
tions, and  each  shall  be  kept,  held,  used  and  disposed  of  wholly 
for  the  exclusive  benefit,  protection  and  security  of  the  re- 
spective classes  of  trust  business  to  which  the  same  were  re- 
spectively so  apportioned  and  set  aside.  In  all  cases  in  which 
it  is  required  that  an  executor,  administrator,  guardian  of 
estates,  assignee,  receiver,  depositary  or  trustee,  shall  qualify 
by  taking  and  subscribing  an  oath,  or  in  which  an  affidarTit 
is  required,  it  shall  be  a  sufficient  qualification  by  such  cor- 
poration if  such  oath  be  taken  and  subscribed  or  such  affidavit 
made  by  the  president,  vice-president,  secretary,  manager, 
trust  officer,  assistant  trust  of^cer  or  regularly  employed  attor- 
ney thereof,  and  such  officer  or  employee  shall  be  liable  for 
the  failure  of  such  trust  company  to  perform  any  of  the  duties 
required  by  law  to  be  performed  by  an  individual  acting  in 
like  capacity  and  subject  to  like  penalties;  provided,  any  such 
appointment  as  guardian  shall  apply  to  the  estate  only,  and 
not  to  the  person.  No  foreign  corporation  shall  have  or  exer- 
cise in  this  state  the  power  to  act  as  trustee  under  any  mort- 
gage, deed  of  trust,  or  other  instrument  securing  notes  or 
bonds  issued  by  any  corj^oration,  excepting  that  a  foreign 
corporation  may  be  authorized  to  act,  outside  of  the  state  of 
California,  as  co-trustee  with  any  qualified  trust  company  or- 
ganized and  doing  business  under  the  law  of  this  state,  for  the 
following  purposes  with  reference  to  bonds  secured  by  mort- 
gage or  deed  of  trust  of  property  in  this  state,  and  none  other : 

(1)  To  deliver  bonds,  and  receive  payment  therefor. 

(2)  To  deliver  permanent  bonds  in  exchange  for  temporary 
bonds  of  the  same  issue. 

(3)  To  deliver  refunding  bonds  in  exchange  for  those  of  a 
prior  issue  or  issues. 


908  APPENDIX.  §  93 

(4)  To  register  bonds,  or  to  exchange  registered  bonds  for 
coupon  bonds,  or  coupon  bonds  for  registered  bonds. 

(5)  To  pay  interest  on  such  bonds,  and  to  take  up  and  can- 
cel coupons  representing  such  interest  payments. 

(6)  To  redeem  and  cancel  bonds  when  called  for  redemp- 
tion, or  to  pay  and  cancel  bonds  Avhen  due. 

(7)  The  certification  of  registered  bonds  for  the  purpose  of 
exchanging  registered  bonds  for  coupon  bonds.  [Amendment 
approved  May  6,  1913 ;  Stats.  1913,  p.  175.] 

Deposit  of  trust  funds  by  executor,  etc. 

Sec.  91.  Any  court  having  jurisdiction  of  any  executor, 
administrator,  guardian,  assignee,  receiver,  depositary  or  trus- 
tee, upon  the  application  of  any  such  officer  or  trustee,  or  upon 
the  application  of  any  person  having  an  interest  in  the  estate 
or  property  administered  by  such  officer  or  trustee,  after  such 
notice  to  the  other  parties  in  interest  as  the  court  may  direct, 
and  after  a  hearing  upon  such  application,  may  authorize  such 
officer  or  trustee  to  deposit  any  moneys  then  in  his  hands,  or 
which  may  come  into  his  hands  thereafter,  until  the  further 
order  of  said  court,  with  any  such  trust  company,  and  upon 
deposit  of  such  money,  and  its  receipt  and  acceptance  by  such 
trust  company,  the  said  officer  or  trustee  shall  be  discharged 
from  further  care  or  responsibility  therefor.  Such  deposit 
shall  be  paid  out  only  upon  the  order  of  said  court.  [Amend- 
ment approved  May  6,  1913;  Stats.  1913,  p.  178.] 

Deposit  of  trust  funds  by  public  administrator. 

Sec.  92.  Any  public  administrator  may  deposit  any  or  all 
moneys  of  any  estate  upon  which  he  is  administering,  not  re- 
quired for  the  current  expenses  of  such  administration,  with 
any  such  trust  company  having  its  principal  place  of  business 
in  the  county,  or  city  and  county  in  which  he  is  acting  as  such 
administrator.  Any  court  having  jurisdiction  of  an  estate 
being  administered  by  a  public  administrator,  may  direct  such 
administrator  to  deposit  all  or  any  part  of  the  moneys  of 
said  estate  with  any  such  trust  company.  Such  deposit  shall 
relieve  the  public  administrator  from  depositing  with  the 
county  treasurer  the  moneys  so  deposited  with  such  trust  com- 
pany. Moneys  so  deposited  by  a  public  administrator  may 
be  drawn,  upon  the  order  of  such  administrator,  countersigned 
by  a  judge  of  the  superior  court,  Avhen  required  for  the  pur- 
poses of  administration,  or  otherAvise.  [Amendment  approved 
May  6,  1913;  Stats.  1913,  p.  178.] 

Court  may  order  deposit. 

Sec.  93.  Any  court  having  jurisdiction  of  any  estate  in  pro- 
cess of  administration,  or  any  other  proceeding,  may,  on  ap- 


I  96  BANKING.  909 

plication  of  any  person  interested  therein,  or  the  person  who 
has  been  selected  by  said  conrt,  or  a  judge  thereof,  as  executor, 
administrator,  guardian,  assignee,  receiver,  depositary  or  trus- 
tee, after  such  notice  to  the  parties  in  interest  as  the  court 
shall  direct,  or  without  notice  if  all  parties  in  interest  consent 
thereto,  and  a  hearing  on  such  application,  order  any  execu- 
tor, administrator,  guardian,  assignee,  receiver,  depositary  or 
trustee  so  selected  or  appointed,  whether  such  person  has  duly 
qualified  or  not  to  deposit  with  any  such  trust  company,  for 
safekeeping,  such  portion  or  all  of  the  personal  assets  of  said 
estate  as  the  court  shall  deem  proper,  and  upon  such  deposit 
being  made,  the  court  shall  by  an  order  of  record  reduce  the 
bond  to  be  given  or  theretofore  given  by  such  officer  or  trus- 
tee, so  as  to  cover  only  the  estate  remaining  in  the  hands  of 
said  officer  or  trustee;  and  the  property  so  deposited  shall 
thereupon  be  held  by  such  trust  company,  under  the  order  and 
direction  of  said  court.  [Amendment  approved  May  6,  1913 ; 
Stats.  1913,  p.  178.] 

No  bond  required. 

Sec.  94.  Such  trust  company  shall  not  be  required  to  give 
any  bond  or  security  in  case  of  any  appointment  or  deposit 
of  moneys  or  other  personal  assets  hereinbefore  provided  for, 
except  as  provided  in  this  act,  but  shall  be  responsible  for  all 
investments  which  shall  be  made  by  it  of  the  funds  which  may 
be  entrusted  to  it  for  investment  by  such  court,  and  shall  be 
liable  to  the  same  extent  as  an  individual,  and  as  hereinafter 
provided.  [Amendment  approved  May  6,  1913 ;  Stats.  1913, 
p.  179.] 

Interest  on  deposits. 

Sec.  95.  Such  trust  company  shall  pay  interest  upon  all 
moneys  so  deposited  with  it  at  such  rate  as  may  be  agreed 
upon  at  the  time  of  its  acceptance  of  any  such  deposit,  or  as 
shall  be  provided  by  the  order  of  court  and  agreed  to  by  such 
trust  company.  [Amendment  approved  May  6,  1913 ;  Stats. 
1913,  p.  179.] 

Security  deposit  with  state  treasurer.  Securities  acceptable. 
Approval  by  superintendent  of  banks.  Exchange  of  se- 
curities. 

Sec.  96.  Any  such  trust  company,  if  its  principal  place  of 
business  is. situated  in  a  city  the  population  of  which  does  not 
'  exceed  one  hundred  thousand  persons,  before  accepting  any 
such  appointment  or  deposit,  shall  deposit  with  the  state 
treasurer,  as  herein  provided,  at  least  fifty  thousand  dollars 
as  security  for  the  faithful  performance  and  execution  of  all 
court  trusts  accepted  by  it,  and  shall  also  deposit  with  the 


910  APPENDIX.  §  96 

state  treasurer  at  least  fifty  thousand  dollars  as  security  for 
the  faithful  performance  and  execution  of  all  private  trusts 
accepted  by  it ;  and  whenever  any  such  trust  company  shall 
under  the  provisions  of  section  ninety-eight  of  this  act  be 
required  to  make  the  first  additional  deposit  of  securities  with 
the  state  treasurer  such  trust  company  must  also  deposit  with 
the  state  treasurer  an  additional  fifty  thousand  dollars  as 
security  for  the  faithful  performance  and  execution  of  all  pri- 
vate trusts  accepted  by  it ;  and  any  trust  company  if  its  prin- 
cipal place  of  business  is  situated  in  a  city  the  population  of 
which  exceeds  one  hundred  thousand  persons,  before  accepting 
any  such  appointment  or  deposit,  shall  deposit  with  the  state 
treasurer,  as  herein  provided  at  least  one  hundred  thousand 
dollars,  as  security  for  the  faithful  performance  and  execution 
of  all  court  trusts  accepted  by  it,  and  shall  also  deposit  with 
the  state  treasurer  at  least  one  hundred  thousand  dollars  as 
security  for  the  faithful  performance  and  execution  of  all 
private  trusts  accepted  by  it.  Any  such  deposit  may  be  made 
either  in  lawful  money  of  the  United  States,  or  in  securities 
of  either  or  any  of  the  following  classes: 

(a)  Bonds  issued  by  the  United  States  or  by  this  state  or  by 
any  county,  city  and  county,  city  or  school  district  of  this 
state,  or  bonds  of  any  irrigation  district  such  as  are  legal  for 
investment  by  savings  banks  ; 

(b)  Bonds  for  the  payment  of  which  the  faith  and  credit 
of  the  United  States  or  of  this  state  are  pledged ; 

(c)  Notes  or  bonds  secured  by  mortgage  or  deed  of  trust 
constituting  a  first  lien  on  improved  and  productive  real  estate 
in  the  State  of  California ;  such  improved  real  estate  being 
worth  at  least  double  the  amount  of  such  lien. 

(d)  Notes  or  bonds  secured  by  mortgage  or  deed  of  trust, 
payment  of  which  is  guaranteed  by  a  policy  of  mortgage  insur- 
ance, and  mortgage  participation  certificates,  issued  by  a 
mortgage  insurance  company  in  accordance  with  the  provisions 
of  chapter  VIII  of  title  II  of  part  IV  of  division  first  of  the 
Civil  Code ;  provided,  that  such  notes  or  bonds  shall  constitute, 
and  such  mortgage  participation  certificates  shall  evidence  the 
ownership  of,  or  participation  in,  notes  or  bonds  Avhich  consti- 
tute, a  first  lien  on  improved  and  productive  real  estate  in  the 
State  of  California,  such  improved  real  estate  being  worth  at 
least  double  the  amount  of  such  lien. 

Such  money  or  securities  shall  be  first  approved  by  the 
superintendent  of  banks  and,  upon  his  written  order,  deposited 
with  the  state  treasurer  for  the  respective  purposes  herein 
specified,  and  said  treasurer  shall  give  his  receipt  therefor, 
and  thereafter,  subject  to  the  provisions  of  this  act,  shall  hold 
such  deposits  of  money  or  securities  separately,  each  for  the 


§  98  BANKING.  911 

sole  benefit  of  the  beneficiaries  of  the  class  of  trust  business, 
for  the  security  and  protection  of  which  the  same  was  de- 
posited, and  said  treasurer  shall  give  his  receipt  therefor  and 
the  state  shall  be  responsible  for  the  custody  and  safe  return 
of  any  money  or  securities  so  deposited.  Said  securities  or 
money  so  deposited  may  with  the  approval  of  the  superin- 
tendent of  banks,  be  withdrawn  or  exchanged  from  time  to 
time  for  other  like  securities,  or  lawful  money,  receivable  as 
aforesaid,  and  so  long  as  the  trust  company  so  depositing  said 
money  or  securities  shall  continue  solvent,  it  shall  have  the 
right  and  shall  be  permitted  by  the  state  treasurer  to  receive 
the  interest  and  dividends  on  any  securities  so  deposited. 
Said  securities  and  money  shall  be  subject  to  sale  and  transfer, 
and  to  the  disposal  of  the  proceeds  by  said  state  treasurer,  only 
on  the  order  of  a  court  of  competent  jurisdiction  and  for  the 
benefit  respectively  of  the  beneficiaries  of  that  class  of  trust 
business  for  the  security  and  protection  of  which  the  same 
were  deposited.  [Amendment  approved  June  3,  1915 ;  Stats. 
1915,  p.  1129;  also  amended  April  21,  1911;  Stats.  1911,  p. 
1015;  May  6,  1913;  Stats.  1913,  p.  179.] 

Mortgage  of  building. 

Sec.  97.  Any  such  trust  company,  having  a  capital  and 
surplus  of  two  hundred  thousand  dollars  or  more  apportioned 
and  set  aside  as  security  for  the  faithful  performance  and 
execution  of  all  court  trusts  accepted  by  it,  as  provided  in  this 
act,  and  which  is  wholly  or  in  part  invested  in  the  lot  and 
building  in  which  its  business  is  carried  on,  may  be  permitted 
by  the  superintendent  of  banks  to  mortgage  such  lot  and 
building  to  the  state  treasurer  for  such  sum,  up  to  its  full  mar- 
ket value,  as  the  superintendent  of  banks  may  determine,  and 
such  mortgage  may  be  deposited  with  said  treasurer,  and  when 
so  deposited  it  shall  be  included  in  the  amount  of  securities 
herein  required  to  be  deposited  with  said  treasurer  as  security 
for  the  faithful  performance  of  all  such  court  trusts.  [Amend- 
ment approved  May  6,  1913;  Stats.  1913,  p.  180.] 

When  trust  funds  amount  to  $500,000.  When  trust  funds 
amount  to  $1,000,000.  Treasurer's  receipt.  "Trust  funds" 
defined.  Penalty.  Withdrawal  of  securities.  Validity  of 
act. 

Sec.  98.  Whenever  any  trust  company,  the  principal  place 
of  business  of  which  is  located  in  a  city  the  population  of  which 
does  not  exceed  one  hundred  thousand  persons,  receives  from 
court  trusts  accepted  by  it,  trust  funds,  as  herein  defined,  to 
the  amount  of  five  hundred  thousand  dollars,  it  shall  forthwith 
notify  in  writing  the  superintendent  of  banks  of  such  fact, 
and  within  thirty  days  thereafter  shall  deposit  with  the  state 


912  APPENDIX.  §  98 

treasurer  additional  money  or  securities  of  the  character  men- 
tioned and  defined  in  section  ninety-six  of  this  act,  approved 
as  therein  provided,  in  the  amount  of  fifty  thousand  dollars ; 
and  whenever  any  trust  company  receives  from  court  trusts 
such  funds  to  the  amount  of  one  million  dollars  it  shall  further 
notify  in  writing  the  superintendent  of  banks  of  such  fact 
and  within  thirty  days  thereafter  shall  deposit  with  the  state 
treasurer  additional  money  or  securities  of  the  character  men- 
tioned and  defined  in  section  ninety-six  of  this  act,  approved 
as  therein  provided,  in  the  amount  of  fifty  thousand  dollars; 
and  for  each  additional  five  hundred  thousand  dollars  of 
such  trust  funds  thereafter  received  by  any  trust  company 
from  court  trusts  a  similar  notification  in  writing  shall  forth- 
with be  given  to  the  superintendent  of  banks,  and  a  further 
deposit  in  the  amount  of  twenty-five  thousand  dollars  of  such 
money  or  securities,  or  of  securities  provided  for  in  section 
ninety-seven  of  this  act  likewise  approved,  shall  be  made,/ 
within  thirty  days  thereafter,  by  such  trust  company  with 
said  state  treasurer,  until  five  hundred  thousand  dollars  of 
such  securities  have  been  so  deposited;  and  for  each  addi- 
tional one  million  dollars  of  such  trust  funds  thereafter  re- 
ceived by  any  trust  company  from  court  trusts  a  similar 
notification  in  writing  shall  forthwith  be  given  to  the  superin- 
tendent of  banks,  and  a  further  deposit  in  the  amount  of 
twenty-five  thousand  dollars  of  such  money  or  securities,  or  of 
securities  provided  for  in  section  ninety-seven  of  this  act  like- 
wise approved,  shall  be  made,  within  thirty  days  thereafter, 
by  such  trust  company  with  said  state  treasurer.  The  treas- 
urer shall  give  his  receipt  for  any  money  or  securities  so 
deposited  and  each  and  all  of  such  deposits  of  money  or 
securities,  shall  be  held  by  said  state  treasurer  for  the  sole 
benefit  of  the  beneficiaries  of  the  class  of  business  for  the 
security  and  protection  of  which  same  Avere  deposited.  The 
state  shall  be  responsible  for  the  custody  and  safe  return 
of  any  money  or  securities  so  deposited  with  said  state  treas- 
urer. The  term  "trust  funds"  when  used  in  this  section  shall 
be  deemed  to  mean  and  shall  mean  personal  property  and 
cash,  whether  received  with  the  original  trust  property  or  as 
rent,  income  or  proceeds  thereof,  or  otherwise,  in  connection 
with  the  trust,  and  shall  not  be  deemed  to  include  and  shall 
not  include  real  property.  Any  trust  company  failing  to 
comply  with  the  provisions  of  this  section  shall  forfeit  to  the 
State  of  California  one  hundi-ed  dollars  a  day  for  each  day 
during  which  such  failure  or  default  shall  continue.  Upon 
making  a  request  in  Ivriting  to  the  superintendent  of  banks, 
any  such  trust  comj^any  shall  be  entitled  to  Avithdraw  from 
the  state  treasurer,   from  time  to  time,  a  sufficient  amount j 


§  99  BANKING.  913 

of  such  securities  so  that  at  all  times  the  amount  of  such 
securities  so  deposited  shall  conform  to  the  requirements  of 
this  act,  and  so  that  at  no  time  shall  such  trust  company  be 
required  to  have  on  deposit  with  the  state  treasurer  an  amount 
of  securities  in  excess  of  the  requirements  of  this  act.  Upon 
receiving  such  request  in  writing,  and  satisfactory  proof  of 
the  facts  warranting  such  withdrawal,  it  shall  be  the  duty 
of  the  superintendent  of  banks  to  forthwith  deliver  to  the 
state  treasurer  a  written  order  directing  the  withdrawal  of 
said  securities  so  as  to  conform  with  the  provisions  of  this 
section,  and  it  shall  be  the  duty  of  the  state  treasurer  to  com- 
ply with  such  written  order.  The  validity  or  legality  of  any 
act  or  proceeding  done  or  taken  by  any  such  trust  company, 
relating  to  or  in  connection  with  the  administration  of  any 
such  trusts,  shall  not  be  affected  or  impaired  by  the  neglect 
or  failure  of  such  trust  company,  or  of  any  officer  or  employee 
thereof,  to  comply  with  any  of  the  provisions  of  this  act,  but 
all  such  acts  and  proceedings  done  or  taken  prior  to  the 
revocation  of  its  certificate  of  authority  to  do  such  business 
by  the  superintendent  of  banks,  under  the  provisions  of  this 
acl^  or  the  revocation  by  any  court  or  judge  thereof  of  the 
appointment,  order  or  decree  theretofore  entered  in  such  trust 
matter  shall  be  as  valid  and  effective  for  all  purposes  as  if  any 
such  neglect  or  failure  had  not  occurred.  [Amendment  ap- 
proved June  3,  1915 ;  Stats.  1915,  p.  1130.  Also  amended  May 
6,  1913;  Stats.  1913,  p.  181.] 

Securities   accompanied  by  policy  of  mortgage   insurance   or 
abstract  of  title.     Fees. 

Sec.  99.  When  any  part  of  the  securities  so  deposited  with 
the  state  treasurer  consists  of  notes,  bonds  or  participation 
certificates  secured  by  mortgage  or  deed  of  trust,  it  shall  be 
accompanied  by  a  policy  of  mortgage  insurance  or  a  complete 
abstract  of  title  or  an  unlimited  certificate  of  title  or  a  policy 
of  title  insurance  prepared  or  issued  by  a  person,  company 
or  corporation  designated  or  approved  by  the  superintendent 
of  banks  and  authorized  by  law  or  otherwise  found  by  the 
superintendent  of  banks  to  be  competent  to  issue  such  evidence 
of  title,  which  shall  be  examined  and  approved  by  or  under 
the  direction  of  said  superintendent  of  banks.  The  fees  for 
an  examination  of  such  policy  or  evidence  of  title  by  counsel 
to  be  paid  by  the  trust  company  making  the  deposit  shall  not 
exceed  twenty  dollars  for  each  policy  or  title  examined,  and 
the  fee  for  each  appraiser,  not  exceeding  two,  shall  not  exceed 
five  dollars  for  each  mortgage  or  deed  of  trust.  [Amendment 
approved  June  3,  1915 ;  Stats.  1915,  p.  1132.  Also  amended 
May  6,  1913;  Stats.  1913,  p.  182.] 

Civ.  Code — 58 


914  APPENDIX.  §  101 

Paid-up  capital  required. 

Sec.  100.     Repealed  May  6,  1913  ;  Stats.  1913,  p.  182. 

Classification  of  trusts.  Court  trust.  Private  trust.  Inspec- 
tion and  supervision.  Reports.  Receiving'  money  in  es- 
crow. 

Sec.  101.  For  the  purposes  of  this  act,  all  trusts  permitted 
to  be  accepted  or  executed  by  any  such  trust  company,  under 
any  provision  of  this  act  are  hereby  classified  and  defined  as 
either : 

(a)  Court  trusts;  or 

(b)  Private  trusts. 

A  court  trust  is  one  in  which  any  such  trust  company  acts 
under  appointment,  order  or  decree  of  any  court,  as  executor, 
administrator,  guardian,  assignee,  receiver,  depositary  or  trus- 
tee, or  in  which  it  receives  on  deposit  from  a  public  admin- 
istrator, under  any  provision  of  this  act,  or  from  any  executor, 
administrator,  guardian,  assignee,  receiver,  depositary  or  trus- 
tee, under  any  order  or  decree  of  any  court,  money  or  prop- 
erty. 

Any  other  trust  is  a  private  trust ;  provided,  that  the  creditor 
of  any  private  trust  of  which  a  trust  company  shall  be  made, 
or  at  any  time  come  to  be,  the  trustee,  may,  at  the  time  of 
the  creation  of  such  trust,  or  the  creator  of  any  such  private 
trust,  or  his  successors  in  interest,  and  the  beneficiaries  thereof 
may,  at  any  time,  by  their  joint  consent,  direct  that  such  trust 
shall  be  subject  to  and  entitled  to  the  ])enefit  of  all  of  the  pro- 
visions of  this  act  relating  to  court  trusts  and  thereafter  such 
trust  shall  for  all  the  purposes  of  this  act  be  deemed  to  be  a 
court  trust  and  wherever  in  this  act  the  words  "court  trust" 
are  used  they  shall  be  deemed  to  include  private  trusts  which 
are  subject  to  supervision  except  in  so  far  as  any  of  the  pro- 
visions of  this  act  relating  to  court  trusts  may,  by  their  nature, 
be  inapplicable  to  such  private  trust.  Such  direction  shall  be 
in  writing  addressed  to  the  trustee  and  a  copy  thereof,  certified 
by  the  trustee,  delivered  to  the  superintendent  of  banks. 

In  case  such  direction  shall  be  made  after  the  acceptance  of 
the  trust,  the  trustee  shall  have  the  right  to  resign  as  such  and 
a  new  trustee  shall  be  appointed  as  provided  in  the  tryst 
instrument  or  by  law.  The  inspection  and  supervision  of  the 
superintendent  of  banks  shall  extend  only  to  court  trusts  as 
herein  defined  and  to  private  trusts  subjected  to  the  provisions 
of  this  act  relating  to  court  trusts  as  above  provided. 

Private  trusts,  except  as  in  this  section  provided,  shall  not 
be  subject  to  the  inspection  or  supervision  of  the  superinten- 
dent of  banks,  his  attorneys,  examiners  or  other  assistants. 

In  making  the  reports  to  the  superintendent  of  banks  re- 
quired by  this  act,  every  trust  company  shall,  in  addition  to 


§  103  BANKING,  915 

the  other  facts  to  be  reported  by  it,  furnish  only  a  list  and 
brief  description  of  the  court  trusts  and  private  trusts,  which 
are  subject  to  supervision,  held  by  it,  the  source  of  appoint- 
ment thereto,  the  authority  by  which  the  appointment  or  de- 
posit was  made,  and  the  amount  of  real  or  personal  property 
held  by  such  trust  company  by  virtue  thereof. 

Nothing  in  this  act  contained  shall  make  it  unlawful  for  any 
person  or  corporation  not  subject  to  the  supervision  of  the 
superintendent  of  banks  to  engage  in  the  business  of  receiving 
and  holding  in  escrow  money  or  its  equivalent  pending  invest- 
ment' in  real  estate  or  securities  for  or  on  account  of  his  or  its 
principal,  or  of  acting  as  trustee  under  deeds  of  trust  given 
solely  for  the  purpose  of  securing  obligations  for  the  repay- 
ment of  money  other  than  corporation  bonds.  [Amendment 
approved  June  3,  1915 ;  Stats.  1915,  p.  1132.  Also  amended 
May  6,  1913 ;  Stats.  1913,  p.  182.] 

Discontinuance  of  trust  business. 

Sec.  102.  Any  corporation  which  desires  to  withdraw  from 
and  discontinue  doing  a  trust  business  shall  furnish  to  the 
superintendent  of  banks  satisfactory  evidence  of  its  release 
and  discharge  from  all  the  obligations  and  trusts  hereinbefore 
provided  for,  and  thereupon  the  superintendent  of  banks  shall 
revoke  his  certificate  of  authority  to  do  a  trust  business  -there- 
tofore issued  to  such  corporation,  and  the  state  treasurer  shall 
return  to  said  corporation  all  the  securities  deposited  by  such 
corporation  and  shall  cancel  any  mortgage  made  by  such  cor- 
poration to  said  state  treasurer  as  a  part  of  such  securities, 
and  thereafter  such  corporation  shall  not  be  permitted  to  use 
and  shall  not  use  the  word  "trust"  in  its  corporate  name  or  in 
connection  with  its  business.  [Amendment  approved  May  6, 
1913;  Stats.  1913,  p.  183.] 

Secrecy  of  communications  concerning  private  trusts. 

Sec.  103.  Any  trust  company  exercising  the  powers  and 
performing  the  duties  provided  for  in  this  act,  shall,  except  as 
herein  otherwise  provided,  keep  inviolate  all  communications 
and  writings  made  to  or  by  said  trustee  touching  the  exist- 
ence, *condition,  management  and  administration  of  any  private 
trust  confided  to  it ;  and  no  creditor  or  stockholder  of  any  such 
trust  company  shall  be  entitled  to  disclosure  or  knowledge  of 
any  such  communication  or  writing;  provided,  however,  that 
the  president,  vice-president,  manager,  trust  officer,  secretary 
or  regularly  employed  attorney  of  any  such  trust  company 
shall  be  entitled  to  knowledge  of  any  such  communication  or 
writing ;  and  provided  further,  that  in  any  suit  or  proceeding 
touching  the  existence,  condition,  management  or  administra- 
tion of  any  such  trust,  the  court  wherein  the  same  is  pending 


916  APPENDIX.  '  §  10?      , 

may  require  disclosure  of  any  such  communication  or  writing. 
[Amendment  approved  May  6,  1913 ;  Stats.  1913,  p.  183.] 

Word  "trust"   prohibited   to   whom.     Effect  of   use  of   word 
"trust." 
Sec.  104.     Repealed  May  6,  1913.     Stats.  1913,  p.  183. 

Investment  of  capital,  etc. 

Sec.  105.  Every  trust  company  shall,  except  as  otherwise  ' 
provided  by  law,  invest  its  capital  and  surplus  and  any  trust 
funds  received  by  it  in  connection  AA'ith  its  trust  business,  in 
accordance  with  the  laws  relative  to  the  investment  or  loan 
of  funds  deposited  Avith  sa^dngs  banks,  unless  a  specific  agree- 
ment to  the  contrary  is  made  between  the  trust  company  and 
the  party  creating  the  trust,  or  unless  it  is  otherwise  ordered 
by  the  court,  in  connection  with  any  court  trust.  [Amend- 
ment approved  May  6,  1913;  Stats.  1913,  p.  183.] 

Trust  company  doing*  commercial  business. 

Sec.  106.  Any.  such  trust  company  desiring  to  do,  or  doing, 
a  commercial  banking  business  or  a  savings  bank  business,  or 
both,  in  addition  to  its  trust  business  shall  have  actually  paid 
up,  in  cash,  the  amount  of  capital  provided  in  section  twenty- 
three  of  this  act.  Any  title  insurance  company  authorized  by 
its  articles  of  incorporation  to  do,  or  doing  a  trust  bu.siness, 
in  addition  to  its  title  insurance  business,  shall  comply  with  all 
the  requirements  of  any  law  governing  trust  companies,  and 
shall  have  a  capital  stock  actually  paid  in,  in  cash,  of  not  less 
than  two  hundred  thousand  dollars,  and  in  addition  thereto, 
the  capital  stock  required  by  law  for  doing  a  title  insurance 
business.  Such  capital  for  each  such  department  or  class  of 
business  shall  be  increased  from  time  to  time  in  the  same  man- 
ner and  to  the  same  extent  as  though  each  such  department  or 
class  of  business  w^as  conducted  by  a  separate  bank,  trust  com- 
pany or  title  insurance  company,  instead  of  as  separate  de- 
.partments  or  classes  of  business.  Any  trust  company  and  any 
title  insurance  company  doing  a  departmental  business  as 
above  provided  shall  comply  with  the  provisions  of  this  act 
governing  each  of  such  departments  and  with  the  profisions 
of  any  law  governing  each  such  class  of  business  as  to  its 
deposits,  reserve,  surplus,  investments  and  loans.  [Amend- 
ment approved  May  6,  1913;  Stats.  1913,  p.  184.] 

Departmental  business  as  title  insurance  company  and  as  trust 
company. 

Sec.  107.  Any  corporation  doing  a  departmental  business 
as  a  title  insurance  company  and  as  a  trust  company,  shall, 
as  to  its  trust  department,  be  subject  to  the  supervision  and 
inspection  of  the  superintendent  of  banks,  and  as  to  its  trust 


§  107  BANKING.  917 

department  must  make  all  reports  to  the  superintendent  of 
banks  required  to  be  made  by  trust  companies  by  the  provi- 
sions of  this  act,  and  as  to  its  trust  department  such  corpora- 
tion shall  also  be  subject  to,  and  shall  have  the  benefit  of  all 
other  provisions  and  requirements  of  this  act  applicable  to 
trust  companies,  and  shall  also  be  subject  to  and  shall  have 
the  benefit  of  all  of  the  banking  laws  and  rules  and  regulations 
of  the  banking  department  of  this  state  applicable  to  trust 
companies.  The  proportionate  part  of  the  state  banking  fund 
provided  for  by  section  one  hundred  twenty-three  of  this  act, 
that  shall  be  payable  by  such  corporation,  shall  be  based  on 
the  amount  of  capital  and  surjDlus  of  such  corporation  appor- 
tioned to  its  trust  department.  [New  section  approved  May 
6,  1913;  Stats.  1913,  p.  184.] 

ARTICLE  V. 

STAT"E    BANKING    DEPARTMENT. 

§  120.  State  banking  department.  Superintendent  appointed  by  gov- 
ernor. 

§  121.  Employees  of  superintendent  of  banks.  Compensation.  In  case 
of  vacancy.     Not  to  borrow  from  banks. 

§  122.     Principal  office. 

§  123.     State  banking  fund  created.     Revolving  fund. 

§  124.  Inspection  of  banks.  Extra  examinations.  May  administer 
oaths.     Audit. 

§  12.5.     Examiner:  oath  of  office  of. 

§  126.     Neglect  of  duty. 

§  127.  Written  consent  for  organizing  banks.  Certificate  to  transact 
business.     Examination  of  capital,  etc.     Fee. 

§  128.     Issuance  of  certificate. 

§  129.     Reports. 

§  130.     Same.     Report  of  foreign  corporation. 

§  130a.  Special  reports. 

§  131.     Three  reports  each  year. 

§  132.     Publication  of  statement.     Shall  show   what. 

§  133.  When  capital  is  impaired.  Assessment.  Public  sale.  Private 
sale. 

§  134.     Violation  of  law  by  bank. 

§  13.5.     Superintendent  of  banks  may  call  stockholders'  meeting. 

§  135a.  Action  to  dissolve  bank  violating  law. 

§  136.  Superintendent  of  banks  may  take  possession  of  bank  violating 
law.  Resumption  of  business.  Collection  of  debts.  Action 
against   stockholders.     Liquidation   and   distribution. 

§  136a.     Bank  ceasing  to  exist. 

§  136b.  Jurisdiction  in  superior   court. 

§  137.  Right  to  dissolve.  Discharge  of  receiver.  Unclaimed  moneys 
escheat.     Investment  of. 

§  138.     Reports,  failure  to  make. 

§  139.  Directors  of  banks,  duties  of.  Report  of  directors  to  contain 
what. 

§  140.     Report  of  superintendent  to  governor. 

§141.  Weekly  bulletin  to  be  posted  by  superintendent:  items  of.  Bul- 
letins, file  of. 


918  APPENDIX.  §  121 

§  142.  Official  reports,  prima  facie  evidence. 

§  143.  Neglect  of  duty  by  superintendent.     (Repealed.) 

§  144.  Actions  for  recovering  forfeitures.     Fines  may  be  compromised. 

§  145.  Powers,    etc.,    abridged,    enlarged    or    modified.     Conformity    by 

July  1,  1918. 

§  146.  Conflicting  laws  repealed. 

§  147.  Act  takes  effect  when. 

State  banking"  department.     Superintendent  appointed  by  gov- 
ernor. 

Sec.  120.  There  is  hereby  created  a  state  banking  depart- 
ment. The  chief  officer  of  such  department  shall  be  the 
superintendent  thereof,  and  be  known  as  the  superintendent 
of  banks.  He  shall  be  appointed  by  the  governor,  and  shall 
hold  office  at  the  pleasure  of  the  governor.  He  shall  not, 
either  directly  or  indirectly,  be  interested  in  any  commercial 
bank,  savings  bank  or  trust  company,  or  as  an  individual 
banker.  He  shall  receive  an  annual  salary  of  ten  thousand 
dollars,  to  be  paid  monthly  out  of  the  state  treasury  on  a  war- 
rant of  the  controller.  He  shall,  within  fifteen  days  from  the 
time  of  notice  of  his  appointment,  take  and  subscribe  to  the 
constitutional  oath  of  office,  and  file  the  same  in  the  office  of 
the  secretary  of  state,  and  execute  to  the  people  of  the  state 
a  bond  in  the  penal  sum  of  fifty  thousand  dollars,  with  cor- 
porate surety  or  two  or  more  sureties  to  be  approved  by  the 
governor  of  the  state,  conditioned  for  the  faithful  discharge 
of  the  duties  of  his  office.  [Amendment  approved  February  6, 
1911;  Stats.  1911,  p.  7.] 

Employees  of  superintendent  of  banks.  Compensation.  In 
case  of  vacancy.  Not  to  borrow  from  banks. 
Sec.  121.  The  superintendent  of  banks  shall  employ  a  chief 
deputy,  attorney  and  such  examiners  and  other  assistants  as 
he  may  need  to  discharge  in  a  proper  manner  the  duties  im- 
posed upon  him  by  law,  none  of  which  examiners  or  assistants 
or  attorney  shall  be  interested  in  any  bank  in  this  state  as 
director,  stockholder,  officer  or  employee,  and  they  shall  per- 
form such  duties  as  he  shall  assign  to  them.  He  shall  fix  the 
compensation  of  the  chief  deputy,  attorney,  examiners  and 
other  assistants,  which  compensation  shall  be  paid  monthly  on 
his  certificate  and  on  the  warrant  of  the  controller  out  of  the 
state  treasury.  The  chief  deputy  shall  within  fifteen  days 
from  the  time  of  his  appointment  take  and  subscribe  to  the 
constitutional  oath  of  office  and  file  the  same  in  the  office  of 
the  secretary  of  state.  No  person  shall  be  appointed  a  chief 
deputy  who  has  not  had  at  least  three  years'  active  banking 
experience,  either  as  an  executive  officer  or  employee  of  some 
bank  in  this  state.  In  case  of  the  absence  or  inability  to  act, 
or  vacancy  in  the  office  of  the  superintendent  of  banks  for 


§  123  BANKING.  919 

thirty  consecutive  days,  the  chief  deputy  shall  execute  to  the 
people  of  the  state  a  bond  in  the  penal  sum  of  fifty  thousand 
dollars,  with  corporate  surety  or  two  sureties  to  be  approved 
by  the  controller  and  treasurer  of  the  state,  conditioned  for 
the  faithful  discharge  of  the  duties  of  the  superintendent 
while  such  deputy  acts  as  superintendent,  and  upon  filing  such 
bond  such  deputy  shall  have  all  the  power  and  duties  of 
superintendent  of  banks,  until  the  inability  of  the  superin- 
tendent shall  be  removed,  or  until  a  new  superintendent  of 
banks  shall  have  been  appointed  by  the  governor.  No  superin- 
tendent of  banks,  chief  deputy,  or  bank  examiner,  shall  be  or 
shall  become  indebted,  directly  or  indirectly,  either  as  bor- 
rower, endorser,  surety,  or  guarantor,  to  any  bank  under  his 
supervision  or  subject  to  his  examination.  [Amendment  ap- 
proved May  6,  1913 ;  Stats.  1913,  p.  184.  Also  amended  April 
21,  1911;  Stats.  1911,  p.  1017.] 

Principal  office. 

Sec.  122.  The  superintendent  of  banks  shall  have  his  prin- 
cipal office  in  the  city  of  San  Francisco,  and  may  also  have 
suitable  rooms  in  the  city  of  Los  Angeles,  wherein  to  conduct 
the  business  of  the  state  banking  department.  The  superin- 
tendent shall,  from  time  to  time,  obtain  the  necessary  furni- 
ture, stationery,  fuel,  lights,  and  other  proper  conveniences 
for  the  transaction  of  such  business;  the  expense  of  which  shall 
be  paid  out  of  the  state  treasury  on  the  certificate  of  the 
superintendent  and  the  warrant  of  the  controller. 

State  banking'  fund  created.  Revolving"  fund- 
Sec.  123.  A  fund  is  hereby  created  to  be  known  as  the  state 
banking  fund,  and  out  of  said  fund  shall  be  paid  all  the  ex- 
penses incurred  in  and  about  the  conduct  of  the  business  of 
the  banking  department,  including  the  salary  of  the  superin- 
tendent, chief  deputy,  attorney,  examiners  and  other  as- 
sistants, traveling  expenses,  furnishing  of  rooms  and  rent. 
Each  bank  shall  pay  annually  its  share  of  eighty-seven  thou- 
sand five  hundred  dollars,  to  be  determined  by  the  proportion 
which  the  capital  and  surplus  which  shall  include  all  reserve 
and  contingent  funds  of  any  incorporated  bank  or  the  surplus, 
reserve  and  contingent  funds  of  any  bank  organized  without 
a  capital  stock  bear  to  the  capital,  surplus,  reserve  and  con- 
tingent funds  in  the  aggregate  of  all  such  banks  receiving 
certificates  of  authorization  from  the  superintendent  of  banks, 
as  shown  by  the  last  report  of  such  bank  to  the  superintendent 
of  banks.  All  moneys  collected  or  received  by  the  superin- 
tendent of  banks,  under  and  by  virtue  of  the  provisions  of 
this  act,  shall  be  by  him  delivered  to  the  treasurer  of  the  state, 
.who  shall  deposit  the  same  to  the  credit  of  said  banking  fund, 


920  APPENDIX.  §  124: 

and  the  unexpended  balances  of  all  moneys  heretofore  paid 
into  the  state  treasury  by  any  of  the  bank  commissioners  or 
the  superintendent  of  banks,  shall  be  retained  and  become  a 
part  of  said  fund ;  provided,  however,  that  the  superintendent 
shall  have  authority  to  retain  in  his  possession  and  under  his 
control  the  sum  of  five  hundred  dollars  to  be  used  by  him  as 
a  revolving  fund  for  the  benefit  of  the  state  banking  depart- 
ment until  the  end  of  the  fiscal  year  at  which  time  he  shall 
make  full  settlement  with  the  treasurer  of  the  state.  If  any 
such  bank  shall  fail  to  pay  such  charges  as  are  herein  re- 
quired, the  superintendent  shall  forthwith  cancel  the  certifi- 
cate of  said  bank.  [Amendment  approved  Mav  6,  1918 ; 
Stats.  1913,  p.  185.  Also  amended  April  21,  1911 ;  Stats.  1911, 
p.  1015.] 

Inspection  of  banks.  Extra  examinations.  May  administer 
oaths.  Audit. 
Sec.  124.  Every  bank  and  trust  department  of  every  title 
insurance  company  doing  a  trust  business,  shall  be  subject  to 
the  inspection  of  the  superintendent  of  banks.  The  superin- 
tendent of  banks,  the  chief  deputy,  or  some  competent  person 
or  persons  to  be  appointed  by  the  superintendent  of  banks, 
to  be  known  as  examiners,  shall  visit  and  examine  every  bank 
at  least  once  each  fiscal  year.  On  every  such  examination  in- 
quiries shall  be  made  by  him  as  to  the  condition  and  resources 
of  the  bank,  the  mode  of  conducting  and  managing  its  affairs, 
the  action  of  its  directors,  the  investment  and  disposition  of 
its  funds,  the  safety  and  prudence  of  its  management,  the  se- 
curity afforded  to  those  by  Avhom  its  engagements  are  held 
and  whether  the  requirements  of  its  articles  of  incorporation 
and  the  law  have  been  complied  with  in  the  administration  of 
its  affairs,  and  as  to  such  other  matters  as  the  superintendent 
may  prescribe.  Whenever,  in  the  judgment  of  the  superin- 
tendent of  banks,  the  condition  of  any  bank  renders  it  neces- 
sary or  expedient  to  make  an  extra  examination  or  to  devote 
any  extraordinary  attention  to  its  affairs,  the  superintendent 
of  banks  shall  have  authority  to  make  any  and  all  necessary 
extra  examinations  and  to  devote  any  necessary  extra  atten- 
tion to  the  conduct  of  its  affairs :  and  such  bank  shall  pay  for 
all  such  extra  services  rendered  by  the  superintendent  of 
banks  at  a  price  to  be  fixed  by  the  superintendent  of  banks 
but  not  to  exceed  tAventy  dollars  per  day.  The  superintendent 
of  banks  shall  also  have  power  to  examine,  or  cause  to  be  ex- 
amined, every  agency  located  in  this  state  of  any  foreign  ])ank 
or  banking  corporation,  for  the  purpose  of  ascertaining 
whether  it  has  complied  with  the  laAvs  of  this  state,  and  for 
such  other  purposes  and  as  to  such  other  matters  as  the  super- 
intendent may  prescribe.     The  superintendent,  chief   deputy. 


§  127  BANKING.  921 

and  every  such  examiner  shall  have  the  power  to  administer 
an  oath  to  any  person  whose  testimony  he  may  require  on  the 
examination  of  any  bank,  or  on  the  examination  of  any 
agency  of  any  foreign  bank  or  banking  corporation,  and  to 
compel  appearance  and  attendance  of  any  such  person  for  the 
purpose  of  any  such  examination.  When  a  bank  shall  have 
been  examined  by  any  examiner,  and  he  finds  securities  therein 
which  are,  in  his  judgment,  of  doubtful  value,  he  shall  report 
the  same  to  the  superintendent  of  banks,  who  thereupon  shall 
be  authorized  to  employ  appraisers  at  the  expense  of  such 
bank  to  appraise  said  securities,  at  a  compensation  to  be  fixed 
by  the  superintendent  of  banks.  The  superintendent  of  banks 
shall,  whenever  requested  to  do  so  by  any  bank,  provide  an 
auditor  to  make  an  audit  of  the  affairs  of  such  bank.  The 
compensation  for  making  such  audit  shall  be  paid  by  the  bank 
direct  to  the  person  making  the  audit.  Nothing  herein  shall 
be  deemed  to  authorize  or  require  the  superintendent  of  banks 
to  inspect  or  supervise  the  private  trust  business  or  title  insur- 
ance business  of  any  corporation  doing  a  trust  business. 
[Amendment  approved  May  6,  1913 ;  Stats.  1913,  p.  186.  Also 
amended  April  21,  1911;  Stats.  1911,  p.  1016.] 

Examiner:  oath  of  office  of. 

Sec.  125.  Every  examiner  appointed  by  the  superintendent 
of  banks  shall,  before  entering  upon  the  discharge  of  his 
duties,  take  the  constitutional  oath  of  office  and  cause  the  same 
to  be  filed  in  the  office  of  the  secretary  of  state.  No  such 
examiner  shall  be  appointed  receiver  of  any  bank  whose  books, 
papers  and  affairs  he  shall  have  examined  pursuant  to  his 
appointment. 

Neglect  of  duty. 

Sec.  126.  If  the  chief  deputy  or  any  examiner  shall  have 
knowledge  of  the  insolvency  or  unsafe  condition  of  any  bank 
mentioned  in  this  act,  and  that  it  is  unsafe  or  inexpedient  to 
permit  said  bank  to  continue  business,  and  shall  neglect  to 
forthwith  report  such  fact  in  writing  over  his  signature  to  the 
superintendent  of  banks,  he  shall  be  guilty  of  felony. 

Written  consent  for  organizing  banks.     Certificate  to  transact 
business.     Examination  of  capital,  etc.     Fee. 
Sec.  127.     When  any  number  of  persons  desire  to  organize 
a  corporation  to  conduct  any  one  or  more  or  all  of  the  busi- 
nesses mentioned  in  divisions  (a),  (b),  and  (c)  of  section  two 
of  this  act  or  to    circulate    stock    subscription  lists  for  any 
such  proposed  corporation  the  previous  written  consent  of  the 
superintendent  of  banks  to  such  proposed  organization  must 
be  obtained.     No  bank  shall  transact  any  business  in  this  state 
V    ,  without  the  written  approval  of  the  superintendent  of  banks, 


922  APPENDIX.  §  128 

and  without  his  written  certificate  stating  that  it  has  complied 
with  the  provisions  of  this  act,  and  all  the  requirements  of 
law,  and  that  it  is  authorized  to  transact,  within  this  state,  the 
business  specified  therein ;  which  certificate  may  be  withheld 
by  the  superintendent  of  banks  whenever  he  has  reason  to 
believe  that  the  bank  is  being  formed  for  any  other  than  the 
legitimate  objects  contemplated  by  this  act,  or  whenever  he 
has  reason  to  believe  that  the  public  convenience  and  ad- 
vantage will  not  be  promoted  by  the  opening  of  such  bank, 
or  whenever  he  has  reason  to  believe  that  the  corporate  name 
assumed  by  such  bank  resembles,  so  closely  as  to  be  likely  to 
cause  confusion,  the  name  of  any  other  bank  previously  formed 
under  the  laws  of  this  state.  Before  issuing  such  certificate 
the  superintendent  of  banks  shall  examine,  or  cause  an  ex- 
amination to  be  made,  in  order  to  ascertain  w^hether  the 
requisite  capital  of  such  bank  has  been  paid  up  in  cash  or  the 
requisite  reserve  or  surplus  fund  has  been  accumulated.  The 
superintendent  of  banks  shall  not  authorize  such  bank  to  com- 
mence business  until  it  appears  from  such  examination,  Or 
other  evidence  satisfactory  to  him,  that  the  requisite  capital 
has  been,  in  good  faith,  subscribed  and  paid  in,  in  cash,  or 
that  the  requisite  surplus  or  reserve  fund  has  been  accumu- 
lated or  paid  in,  in  cash,  and  until  said  bank  shall  have  paid 
a  fee  of  fifty  dollars  for  each  department  to  be  operated  by 
said  bank.  [Amendment  approved  June  3.  1915 ;  Stats.  1915, 
p.  1133.     Also  amended  May  6,  1913 ;  Stats.  1913,  p.  187.] 

Issuance  of  certificate. 

Sec.  128.  When  the  certified  copy  of  articles  of  incorpora- 
tion of  any  bank  shall  have  been  filed  with  the  secretarj^  of 
state,  and  application  made  for  the  issuance  of  a  certificate  to 
do  business  as  a  bank,  the  superintendent  of  banks,  provided 
he  has  not  withheld  granting  his  certificate  for  any  of  the 
reasons  set  forth  in  section  one  hundred  twenty-seven  hereof. 
^  shall  ascertain,  from  the  best  sources  of  information  at  his 
command,  whether  the  character  and  general  fitness  of  the 
persons  named  as  stockholders  are  such  as  to  command  the 
confidence  of  the  community  in  which  such  bank  is  proposed  to 
be  located,  and,  if  so  satisfied,  he  shall,  within  sixty  days  after 
such  application  has  been  made  to  him.  issue,  under  his  hand 
and  official  seal,  the  certificate  of  authorization  required  by 
this  act.  The  superintendent  of  banks  shall  transmit  a  dupli- 
cate of  such  certificate  of  authorization  to  the  county  clerk 
of  the  county  in  which  the  principal  place  of  business  of  such 
bank  is  located,  and  he  shall  file  the  same  in  his  office.  The 
superintendent  of  banks  shall  also  file  a  duplicate  of  such  cer- 
tificate in  his  own  office.  [Amendment  approved  May  6.  1913. 
Stats.  1913,  p.  187.] 


§  130  BANKING.  923 

Reports. 

Sec.  129.  Every  bank  doing  a  departmental  business  shall 
render  to  the  superintendent  of  banks  for  each  department 
conducted  by  it,  a  separate  report  showing  in  detail  as  re- 
quired by  section  one  hundred  thirty  of  this  act,  the  actual 
financial  condition  of  such  department  and  shall  at  the  time 
of  furnishing  said  report  separately  publish  the  statement  for 
each  department  as  provided  in  section  one  hundred  thirty-two 
of  this  act. 

Same.     Report  of  foreign  corporation. 

Sec.  130.  Every  bank  organized  under  the  laws  of  this 
state,  shall,  whenever  required  by  the  superintendent  of  banks, 
make  a  report  in  writing  to  him,  verified  by  the  oath  of  its 
president  and  its  secretary  or  cashier,  or  two  principal  officers. 
Such  reports  shall  show  the  actual  financial  condition  of  the 
bank  making  the  report,  at  the  close  of  any  past  day  designated 
by  the  superintendent,  and  shall  specify  the  following : 

1.  The  amount  of  its  capital  stock  and  the  number  of  shares 
into  which  it  is  divided. 

2.  The  names  of  the  directors  and  the  number  of  shares  of 
stock  held  by  each. 

3.  The  total  amount  of  capital  actually  paid  in,  in  cash,  and 
the  total  amount  of  surplus,  reserve  and  any  other  funds. 

4.  The  total  amount  due  the  depositors. 

5.  The  total  amount  and  character  of  any  other  liabilities  it 
may  have. 

6.  The  amount  at  which  the  lot  and  building  occupied  by 
the  bank  for  the  transaction  of  its  regular  business  stands 
debited  on  its  books;  also  the  market  value  of  all  other  real 
estate  held,  whether  acquired  in  settlement  of  loans  or  other- 
wise, the  original  cost  to  the  bank,  the  date  when  acquired,  the 
amount  at  which  it  stands  debited  on  the  bank-books,  in  what 
counties  situated,  and  in  what  name  the  title  is  vested,  if  not 
in  the  name  of  the  bank  itself. 

7.  The  amount  loaned  on  real  estate,  specifying  the  amount 
secured  on  real  estate  in  each  county  separately;  also  specify- 
ing the  name  of  the  person  in  whose  name  the  property  is  held 
in  trust  or  as  security,  in  case  it  is  held  in  any  name  other  than 
that  of  the  bank  and  the  instrument  creating  the  security  does 
not  of  itself  disclose  the  name  of  the  bank. 

8.  The  amount  invested  in  bonds,  designating  the  name  and 
amount  of  each  particular  kind. 

9.  The  amount  loaned  on  stocks  and  bonds,  designating  each 
particular  class  and  the  amount  thereof. 

10.  The  amount  of  money  loaned  on  other  securities,  with  a 
particular  designation  of  each  class  and  the  amount  loaned  on 
each. 


924  '    APPENDIX.  §  131 

11.  The  amount  and  kind  of  money  on  hand  or  deposited  in 
any  other  bank  or  place,  with  the  name  of  the  place  where 
deposited  and  the  amount  in  each  place. 

12.  Any  other  property  held,  or  any  amount  of  money  loaned, 
deposited,  invested  or  placed,  not  otherwise  herein  enumerated, 
and  the  place  where  situate  and  the  value  of  said  property, 
and  the  amount  so  loaned,  deposited  or  placed. 

13.  The  date  on  which  examination  of  the  bank  was  last 
made  by  its  board  of  directors  and  the  date  on  which  report  of 
such  examination  was  filed,  as  required  by  section  one  hundred 
thirty-nine  of  this  act. 

14.  The  outstanding  and  unpaid  amounts  of  any  loans  made 
by  the  bank,  which  under  the  provisions  of  either  section  sixty- 
five  or  eighty-three  of  this  act  are  required  to  be  reported  to 
the  superintendent  of  banks. 

15.  Any  overdrafts  and  any  loans,  investments,  acts  or 
omissions  violative  of  or  not  in  conformity  with  any  provision 
of  this  act  which  may  be  specifically  called  for. 

Every  foreign  corporation  transacting  the  business  of  bank- 
ing in  this  state  shall  make  the  report  herein  required  as  far  as 
such  report  may  relate  to  the  aft'airs  of  such  corporation  in  this 
state,  and  every  foreign  corporation  must  particularly  render 
the  report  required  by  subdivisions  three,  four,  five,  six,  seven, 
eight,  nine,  ten,  eleven,  twelve,  thirteen,  fourteen  and  fifteen  of 
this  section.  Such  report  shall  be  made  in  writing  and  verified 
by  the  oath  of  one  of  its  duly  authorized  officers  or  managers  re- 
siding in  this  state.  The  oaths  of  the  officers  and  the  statements 
above  required  shall  state  that  they  and  each  of  them  have  a 
personal  knowledge  of  the  matters  therein  contained,  and  that 
they  believe  every  allegation,  statement,  matter,  and  thing 
therein  contained  is  true.  Any  willful  false  statement  in  the 
premises  shall  be  perjury  and  shall  be  punished  as  such. 
[Amendment  approved  May  6,  1913;  Stats.  1913,  p.  188.] 

Special  reports. 

Sec.  130a.  In  addition  to  the  information  obtained  from  the 
report  required  by  the  provisions  of  section  one  hundred  thirty 
of  this  act,  the  superintendent  of  banks  shall  also  have  the 
power  to  require  any  bank  to  furnish  a  special  report  in  writ- 
ing verified  as  required  by  section  one  hundred  thirty  of  this 
act,  whenever  in  his  judgment  such  special  report  is  necessary 
to  inform  him  fully  of  the  actual  financial  condition  and  affairs 
of  such  bank.  Any  willful  false  statement  in  the  premises  shall 
be  perjury  and  shall  be  punished  as  such.  [New  section  ap- 
proved May  6,  1913;  Stats.  1913,  p.  189.] 

Three  reports  each  year. 

Sec.  131.  The  superintendent  of  banks  shall  call  for  the 
reports  specified  by  section  one  hundred  thirty  of  this  act  at 


§  133  BANKING.  925 

lea.st  three  times  each  year.  The  "past  day  designated  by  the 
superintendent"  of  banks  under  the  provisions  of  section  one 
hundred  thirty  of  this  act  shall  be  as  nearly  as  possible  the 
day  designated  by  the  comptroller  of  currency  of  the  United 
States  for  reports  of  national  banking  associations.  [Amend- 
ment approved  May  6,  1913;  Stats.  1913,  p.  189.] 

Publication  of  statement.     Shall  show  what.    . 

Sec.  132.  At  the  time  of  furnishing  such  report  to  the 
superintendent  of  banks,  every  bank  shall  also  publish  a  con- 
densed statement  of  its  financial  condition,  at  least  once,  in 
some  newspaper  of  general  circulation,  published  in  the  city  or 
town  where  its  principal  place  of  business  is  located,  and.  if  no 
paper  is  published  in  such  town,  then  in  some  newspaper  of 
general  circulation  in  the  county  where  its  principal  place  of 
business  is  located.  Such  published  statement  shall  show  the 
total  amount  of  loans,  the  total  amount  of  overdrafts,  the  total 
amount  invested  in  bonds  and  other  securities,  the  total 
amount  due  from  banks,  the  total  amount  of  checks  and  other 
cash  items,  the  total  amount  of  cash  on  hand,  capital  paid  in, 
surplus  funds ;  undivided  profits,  less  expenses  and  taxes  paid : 
due  to  other  banks  and  bankers,  due  to  trust  companies  and 
savings  banks;  individual  deposits  subject  to  checks;  demand 
certificates  of  deposit;  time  deposits;  certified  checks;  cashier's 
checks  outstanding;  and  such  other  items  as  will  show  the 
actual  financial  condition  of  the  bank  making  the  report. 

When  capital  is  impaired.    Assessment.     Public  sale.     Private 
Sale. 

Sec.  133.  Whenever  it  shall  appear  from  the  report  of  any 
bank,  or  the  superintendent  of  banks  shall  have  reason  to  be- 
lieve that  the  capital  of  any  bank  is  impaired  or  reduced  below 
the  amount  required  by  law,  it  shall  be  the  duty  of  the  super- 
intendent of  banks  and  he  shall  have  the  power  to  examine  said 
bank  and  ascertain  the  facts,  and  in  case  he  finds  such  impair- 
ment or  reduction  of  capital,  he  shall  require  such  bank  to 
make  good  the  deficiency  so  appearing  within  sixty  days  after 
the  date  of  such  requisition.  The  directors  of  every  such  bank, 
upon  which  such  requisition  shall  have  been  made,  shall  levy 
an  assessment  upon  the  stock  thereof  to  repair  such  deficiency, 
and  shall  cause  notice  of  such  requisition  to  be  given  to  each 
stockholder  of  the  bank  and  of  the  amount  of  the  assessment 
which  he  must  pay  for  the  purpose  of  making  good  such  de- 
ficiency, by  a  written  or  printed  notice  mailed  to  such  stock- 
holder at  his  last  known  address  or  served  personally  upon 
him.  If  any  stockholder  shall  refuse  or  neglect  to  pay  the  as- 
sessment specified  in  such  notice  within  thirty  days  from  the 
date    of   mailing    or   serving    such   notice    as    aforesaid,    the 


926  APPENDIX.  §  134 

directors  of  such  bank  shall  have  the  right  to  sell  to  the  highest 
bidder  at  public  auction  the  stock  of  such  stockholder,  after 
giving  a  previous  notice  of  such  sale  for  ten  days  in  a  news- 
paper of  general  circulation  published  in  the  county  where  the 
principal  place  of  business  of  such  bank  is  located,  and  a  copy 
of  such  notice  of  sale  shall  also  be  served  on  the  owner  of  such 
stock  by  being  served  personally  on  him  or  by  mailing  to  his 
last  known  address  ten  days  before  the  day  fixed  for  such  sale ; 
or  such  stock  may  be  sold  at  private  sale  and  without  such 
public  notice ;  provided,  however,  that  before  making  such 
private  sale  thereof  an  offer  in  writing  shall  first  be  obtained 
and  a  copy  thereof  served  upon  the  owner  of  record  of  the 
stock  sought  to  be  sold,  either  personally  or  by  mailing  a  copy 
of  such  order  to  his  last  known  address;  and  if,  after  service 
of  such  offer,  such  owner  shall  still  refuse  or  neglect  to  pay 
such  assessment  within  two  weeks  from  the  time  of  the  service 
of  such  offer,  the  said  directors  may  accept  such  offer  and  sell 
such  stock  to  the  person  making  such  offer,  or  to  any  other 
person  or  persons  making  a  larger  offer  than  the  amount 
named  in  the  offer  submitted  to  the  stockholder ;  but  such  stock 
shall  in  no  event  be  sold  for  a  smaller  sum  than  the  valuation 
put  on  it  by  the  superintendent  of  banks  in  his  determination 
and  requisition  as  to  said  assessment,  nor  for  less  than  the 
amount  of  said  assessment  so  called  for  and  the  expense  of 
sale.  Out  of  the  avails  of  the  stock  so  sold,  the  director  shall 
pay  the  amount  of  assessment  levied  thereon,  and  the  necessary 
costs  of  sale,  and  the  balance,  if  any.  shall  be  paid  to  the 
person  or  persons  whose  stock  has  thus  been  sold.  A  sale 
of  stock  as  herein  provided  shall  effect  an  absolute  cancella- 
tion of  the  outstanding  certificate  or  certificates  evidencing  the 
stock  so  sold,  and  shall  make  the  same  null  and  void,  and  a 
new  certificate  shall  be  issued  by  the  bank  to  the  purchaser 
thereof.  [Amendment  approved  Mav  6,  1913;  Stats.  1913, 
p.  189.     Also  amended  April  21,  1911;' Stats.  1911,  p.  1016.] 

Violation  of  law  by  bank. 

Sec.  134.     If  it  shall  appear  to  the  superintendent  of  banks 
that  any  bank  has  violated  or  failed  to  comply  with  the  pro-  : 
visions  of  its  articles  of  incorporation,  or  any  law  of  this  state, 
he  may,  by  an  order  under  his  hand  and  official  seal,  which  seal  : 
must  be  adopted  by  him,  addressed  to  such  bank,  direct  such 
bank  to  discontinue  such  violation  and  to  comply  with  the  ■ 
law ;  or,  if  it  shall  appear  to  the  superintendent  of  banks  that 
such  bank  is  conducting  business  in  an  unsafe  or  injurious 
manner,  he  may,  in  like  manner  direct  the  discontinuance  of 
any  such  unsafe  or  injurious  practices.-     Such  order  shall  re- 
quire such  bank  to  show  cause,  before  the  superintendent  of. 


§  136  BANKING.  927 

banks,  at  a  time  and  place  to  be  fixed  by  him,  why  said  order 
should  not  be  observed.  If  upon  such  hearing  it  shall  appear 
to  the  superintendent  of  banks  that  such  bank  is  conducting 
business  in  an  unsafe  or  injurious  manner,  or  is  violating  or 
failing  to  comply  with  the  provisions  of  its  articles  of  incor- 
poration, or  any  law  of  this  state,  then  the  superintendent  of 
banks  shall  make  such  order  final,  and  such  bank  shall  im- 
mediately comply  with  such  order  made  by  the  superintendent 
of  banks.  Such  banks  shall  have  ten  days  after  any  such  order 
is  made  final  in  which  suit  may  be  commenced  to  restrain 
enforcement  of  such  order,  and  unless  such  action  be  so  com- 
menced and  enforcement  of  said  order  be  enjoined  within  ten 
days,  by  the  court  in  which  such  suit  is  brought,  then  such 
bank  shall  comply  with  such  order.  [Amendment  approved 
May  6,  1913;  Stats.  1913,  p.  191.] 

Superintendent  of  banks  may  call  stockholders'  meeting. 

Sec.  135.  Whenever  the  superintendent  of  banks  shall  deem 
it  expedient  he  may  call  a  meeting  of  the  stockholders  of  any 
bank  organized  under  the  laws  of  this  state,  by  a  personal 
notice  of  such  meeting  for  fifteen  days  previous  thereto.  All 
necessary  expense  incurred  in  the  serving  of  such  notice  shall 
be  l)orne  by  the  bank  whose  stockholders  are  required  to  con- 
vene. [Old  Sec.  135  was  repealed  and  the  above  new  section 
was  added  May  6.  1913;  Stats.  1913,  p.  191.] 
Action  to  dissolve  bank  violating  law. 

Sec.  135a.  If  the  capital  of  any  bank  shall  be  impaired,  or 
if  any  bank  shall  refuse  to  submit  its  books,  papers  and  con- 
cerns to  the  inspection  of  any  examiner,  or  if  any  officer  thereof 
shall  refuse  to  be  examined  upon  oath  touching  the  concerns 
of  such  bank,  or  if  such  bank  shall  violate  the  provisions  of  its 
articles  of  incorporation,  or  any  law  of  this  state,  or  if  such 
bank  shall  suspend  payment  of  its  obligations,  or  if  such  bank 
shall  conduct  its  business  in  an  unsafe  or  unauthorized  manner, 
or  if  from  any  examination  or  report  provided  for  by  this  act 
the  superintendent  of  banks  shall  conclude  that  such  bank  is 
in  an  unsound  or  unsafe  condition  to  transact  the  business  for 
which  it  is  organized,  or  that  it  is  unsafe  and  inexpedient  for 
it  to  continue  business,  an  action  to  procure  a  judgment  dis- 
solving such  corporation  may  be  maintained  by  the  superin- 
tendent of  banks.  [New  section  approved  May  6.  1913;  Stats. 
1913,  p.  191.] 

Superintendent  of  banks  may  take  possession  of  bank  violat- 
ing law.  Resumption  of  business.  Collection  of  debts. 
Action  against  stockholders.  Liquidation  and  distribu- 
tion. 

Sec.  136.  Whenever  it  shall  appear  to  the  superintendent 
of  banks  that  any  bank  has  violated  the  provisions  of  its  arti- 


928  APPENDIX.  §  136 

cles  of  incorporation  or  any  law  of  this  state,  or  is  condnetingr 
its  business  in  an  unsafe  or  unauthorized  manner,  or  if  the 
capital  of  any  hank  is  impaired,  or  if  any  bank  shall  refuse  to 
submit  its  books,  papers  and  concerns  to  the  inspection  of  any 
examiner,  or  if  any  officer  thereof  shall  refuse  to  be  examined 
upon  oath  touching:  the  concerns  of  any  such  bank,  or  if  any 
bank  shall  suspend  payment  of  its  obligations,  or  if  from  any 
examination  or  report  provided  for  by  this  act  the  superintend- 
ent of  banks  shall  have  reason  to  conclude  that  such  bank  is  in 
an  unsound  or  unsafe  condition  to  transact  the  business  for 
which  it  is  organized,  or  that  it  is  unsafe  and  inexpedient  for  it 
to  continue  business,  or  if  any  bank  shall  neelect  or  refuse  to 
observe  any  order  of  the  superintendent  of  banks  specified  in 
sections  one  hundred  thirty-three  or  one  hundred  thirty-four 
of  this  act.  the  superintendent  of  banks  may  forthwith  take 
possession  of  the  property  and  business  of  such  bank  and  re- 
tain such  possession  until  such  bank  shall  resume  business,  or 
its  affairs  be  finally  liquidated  as  herein  provided.  On  taking 
possession  of  the  property  and  business  of  any  such  bank  the 
superintendent  of  banks  shall  forthwith  give  notice  of  such 
fact  to  any  and  all  banks,  trust  companies,  associations  and  in- 
dividuals, holding  or  in  possession  of  any  assets  of  such  bank. 
No  bank,  trust  company,  association  or  individual  knowing  of 
such  taking  possession  by  the  superintendent  of  banks,  or 
notified  as  aforesaid,  shall  have  a  lien  or  charge  for  any  pay- 
ment, advance  or  clearance  thereafter  made,  or  liability  there- 
after incurred  against  any  of  the  assets  of  the  bank  of  whose 
property  and  business  the  superintendent  of  banks  shall  have 
taken  possession  as  aforesaid.  Such  bank  may.  with  the  con- 
sent of  the  superintendent  of  banks,  resume  business  upon  such 
conditions  as  may  be  approved  by  him.  Upon  taking  posses- 
sion of  the  property  and  business  of  any  such  bank  the  super- 
intendent of  banks  shall  have  authority  to  collect  moneys  due 
to  such  bank  and  do  such  other  acts  as  are  necessary  to  con- 
serve its  assets  and  business,  and  shall  proceed  to  liquidate  the 
affairs  thereof  as  hereinafter  provided.  The  superintendent 
of  banks  shall  collect  all  debts  due  and  claims  belonging  to  it, 
and  upon  the  order  of  the  superior  court  may  sell  or  compound 
any  bad  or  doubtful  debts.  If  a  purchaser  for  any  bad  or 
doubtful  debts  cannot  be  obtained  and  it  appears  improbable 
that  recovery  thereon  can  be  had  and  that  the  costs  of  actions 
to  enforce  collection  of  the  same  would  probably  be  lost,  the 
court  may  direct  that  suits  thereon  need  not  be  brought.  On 
like  order  he  may  sell  any  real  or  personal  property  of  such 
bank  on  such  terms  as  the  court  shall  direct ;  and  may.  if 
necessary  to  pay  the  debts  of  such  bank,  enforce  the  constitu- 


§  136  BANKING.  929 

tional  individual  liability  of  stockholders  by  action  to  be 
broiig:ht  within  three  years  after  the  date  of  his  taking  posses- 
sion of  the  affairs  of  snch  bank.  The  superintendent  of  banks 
shall  determine  the  necessity  of  such  action  and  the  amount 
necessary  to  recover  from  the  stockholders  to  fully  pay  all 
liabilities  of  such  bank.  Such  action  may  be  in  equity  and 
against  all  stockholders  upon  whom  service  of  process  in  the 
State  of  California  can  be  had,  and  the  court  may  therein  de- 
termine and  provide  for  any  equities  as  between  the  stock- 
holders including  the  proportions  of  each  stockholder  to  any 
surplus  of  money  or  assets  that  may  remain  after  the  payment 
of  all  liabilities  and  the  expenses  of  liquidation.  The  super- 
intendent of  banks  may  also  maintain  an  action  against  any 
stockholder  residing  out  of  the  state  or  upon  whom  service  of 
process  cannot  be  had  within  the  state,  in  any  court  of  the 
United  States  or  of  any  state  or  country.  Any  judgment  so 
obtained  by  the  superintendent  of  l)anks  against  such  or  any 
of  such  stockholders  which  is  of  doubtful  value  may  be  com- 
promised and  compounded  by  the  superintendent  of  banks  on 
such  terms  and  conditions  as  the  superior  court  may  direct  or 
authorize.  The  superintendent  of  banks  shall  file  a  notice  of 
pendency  of  action  in  the  county  recorder's  office  of  the  county 
where  such  action  is  brought.  At  any  time  prior  to  the  trial 
of  any  such  action,  any  creditor  may  serve  upon  the  superin- 
tendent of  lianks  and  file  with  the  court  wherein  such  action  is 
pending,  notice  that  he  elects  to  maintain  an  action  against 
the  stockholders  or  any  of  them,  in  his  individual  capacity  and 
thereupon  the  amount  sued  for  in  such  action  shall  be  reduced 
accordingly  and  such  creditor  shall  not  be  entitled  to  share  in 
the  proceeds  resulting  from  such  action  brought  by  the  super- 
intendent of  banks.  For  the  purpose  of  executing  and  per- 
forming any  of  the  powers  and  duties  hereby  conferred  upon 
him,  the  superintendent  of  banks  may,  in  the  name  of  the 
delinquent  bank  or  in  his  own  name,  prosecute  and  defend  any 
and  all  suits  and  other  legal  proceedings  and  may,  in  the  name  of 
the  delinquent  bank  or  in  his  own  name  as  trustee  execute, 
acknowledge  and  deliver  any  and  all  deeds,  assignments,  re- 
leases and  other  instruments  necessary  and  proper  to  effectuate 
any  sale  of  real  or  personal  property  or  sale  or  compromise  or 
compound  authorized  by  order  of  the  court  as  herein  provided ; 
and  any  deed  or  other  instrument,  executed  pursuant  to  the 
authority  hereby  given,  shall  be  valid  and  effectual  for  all  pur- 
poses, as  though  the  same  had  been  executed  by  the  officers  of 
the  delinquent  bank  by  authority  of  its  board  of  directors. 
In  case  any  of  the  real  property  so  sold  is  located  in  a  county 
other  than  the  county  in  which  the  application  to  the  court  for 

Civ.  Code — 59 


930  APPEQSTDIX.  §  136 

leave  to  sell  the  same  is  made,  the  superintendent  of  banks 
shall  cause  a  certified  copy  of  the  order  authorizing  or  ratify- 
ing such  sale  to  be  filed  in  the  office  of  the  recorder  of  the 
county  in  which  the  said  real  property  is  located.  The  super- 
intendent of  banks  may,  under  his  hand  and  official  seal,  appoint 
one  or  more  special  deputy  superintendents  of  banks,  as  agent 
or  agents,  with  the  powers  specified  in  the  certificate  of  ap- 
pointment hereinafter  mentioned,  to  assist  him  in  the  duty  of 
liquidation  and  distribution,  the  certificate  of  appointment  to 
be  filed  in  the  office  of  the  superintendent  of  banks,  and  a 
certified  copy  in  the  office  of  the  clerk  of  the- county  in  which 
the  principal  office  of  such  bank  is  located. 

The  superintendent  of  banks  may  from  time  to  time,  by  a 
certificate  of  appointment  under  his  hand  and  official  seal, 
specifying  the  powers  conferred,  authorize  a  special  deputy 
superintendent  to  perform  such  duties  connected  with  such 
liquidation  and  distribution  as  the  superintendent  of  banks 
may  deem  proper.  Such  certificate  of  appointment  shall  be 
filed  in  the  office  of  the  superintendent  of  banks  and  a  certified 
copy  in  the  office  of  the  clerk  of  the  county  in  which  the  prin- 
cipal office  of  such  bank  is  located.  The  superintendent  of 
banks  may  employ  such  counsel  and  procure  such  expert  assist- 
ance and  advice  as  may  be  necessary  in  the  liquidation  and 
distribution  of  the  assets  of  such  bank,  and  for  that  purpose 
may  retain  such  of  the  officers  or  employees  of  such  bank  as  he 
may  deem  necessary.  The  superintendent  of  banks  shall  re- 
quire from  a  special  deputy  superintendent  and  from  such 
assistants  such  security  for  the  faithful  discharge  of  their 
duties  as  he  may  deem  proper.  The  superintendent  of  banks 
shall  cause  notice  to  be  given  by  advertisement,  in  such  news- 
papers as  he  may  direct,  weekly  for  three  consecutive  months, 
calling  on  all  persons  who  may  have  claims  against  such  bank 
to  present  the  same  to  the  superintendent  of  banks,  and  make 
legal  proof  thereof  at  a  place  and  within  a  time,  not  earlier 
than  the  last  day  of  publication,  to  be  therein  specified.  The 
superintendent  of  banks  shall  mail  a  similar  notice  to  all  per- 
sons whose  names  appear  as  creditors  upon  the  books  of  the 
bank.  If  the  superintendent  of  banks  doubts  the  justice  and 
validity  of  any  claim,  he  may  reject  the  same,  and  serve  notice 
of  such  rejection  upon  the  claimant,  either  by  mail  or  per- 
sonally. An  affidavit  of  the  service  of  such  notice,  which  shall 
be  prima  facie  evidence  thereof  shall  be  filed  with  the  super- 
intendent of  banks.  Any  action  upon  a  claim  so  rejected  must 
be  brought  within  six  months  after  such  service.  Claims 
presented  after  the  expiration  of  the  time  fixed  in  the  notice 
to  creditors  shall  be  entitled  to  share  in  the  distribution  only 
to  the  extent  of  the  assets  in  the  hands  of  the  superintendent 


§  136  BANKING.  931 

of  banks  equitably  applicable  thereto.  Upon  taking  posses- 
sion of  the  property  and  assets  of  any  bank,  the  superintendent 
of  banks  shall  make  an  inventory  of  the  assets  of  such  bank  in 
duplicate,  one  to  be  filed  in  the  office  of  the  superintendent  of 
banks,  and  one  with  the  papers  in  said  proceeding  in  the  office 
of  the  clerk  of  the  county  in  which  the  principal  office  of  such 
bank  is  located ;  upon  the  expiration  of  the  time  fixed  for  the 
presentation  of  claims  the  superintendent  of  banks  shall  make 
in  duplicate  a  full  and  Complete  list  of  the  claims  presented, 
including  and  specifying  such  claims  as  have  been  rejected  by 
him,  one  to  be  filed  in  the  office  of  the  superintendent  of  banks, 
and  one  with  the  papers  in  said  proceeding  in  the  office  of  the 
clerk  of  the  county  in  which  the  principal  office  of  such  bank 
is  located.  Thereafter  he  shall  make  and  file  in  said  offices  as 
above  provided  at  least  fifteen  days  before  each  application  to 
the  court  for  leave  to  declare  a  dividend  a  supplemental  list  of 
the  claims  presented  since  the  last  preceding  list  was  filed, 
including  and  specifying  such  claims  as  have  been  rejected  by 
him,  and  in  any  event  he  shall  make  and  file  as  above  provided 
such  a  list  at  least  once  every  six  months  after  the  filing  of 
the  original  list,  as  long  as  he  shall  remain  in  possession  of  the 
property  and  business  of  any  such  bank.  Such  inventory  and 
list  of  claims  shall  ])e  open  at  all  reasonable  times  to  inspec- 
tion. The  compensation  of  the  special  deputy  superintendents, 
counsel  and  other  employees  and  assistants,  and  all  expenses  of 
supervision  and  liquidation,  shall  be  fixed  by  the  superintend- 
ent of  banks  and  shall  upon  the  certificate  of  the  superintendent 
of  banks  be  paid  out  of  the  funds  of  such  bank  in  the  hands  of 
the  superintendent  of  banks.  All  such  expenses  must  be  re- 
ported by  the  superintendent  of  banks  to  the  superior  court 
of  the  county  where  the  principal  place  of  business  of  such 
"bank  is  located  and  settled  by  such  court  upon  notice  of  such 
bank.  The  moneys  collected  by  the  superintendent  of  banks 
shall  be  from  time  to  time  deposited  in  one  or  more  state  banks 
of  deposit,  savings  banks  or  trust  companies,  and,  in  case  of 
the  suspension  or  insolvency  of  the  depositary,  such  deposits 
shall  be  preferred  before  all  other  deposits.  At  any  time  after 
the  expiration  of  the  date  fixed  for  the  presentation  of  claims 
the  superior  court  may  by  order  authorize  the  superintendent 
of  banks  to  declare  out  of  the  funds  remaining  in  his  hands 
after  the  payment  of  expenses  one  or  more  dividends,  and  after 
the  expiration  of  one  year  from  the  first  publication  of  notice 
to  creditors  he  may  declare  a  final  dividend,  such  dividends  to 
be  paid  to  such  persons,  and  in  such  amounts,  and  upon  such 
notice,  as  may  be  directed  by  the  superior  couj:*t  of  the  county 
in  which  the  principal  office  of  such  bank  is  located.  Objec- 
tions to  any  claim  not  rejected  by  the  superintendent  of  banks 


932  APPENDIX.  §  136 

may  ho  made  by  any  party  interested  in  tiling  a  copy  of  such 
objections  with  the  superintendent  of  banks,  who  shall  present 
the  same  to  the  superior  court  at  the  time  of  the  next  applica- 
tion to  declare  a  dividend.  The  court  to  which  such  applica- 
tion is  made  shall  thereupon  dispose  of  said  objections  or  may 
order  a  reference  for  that  purpose,  and  should  the  objections 
to  any  claim  be  sustained  by  the  court  or  by  the  referee,  such 
claim  shall  not  be  allowed  by  the  superintendent  of  banks  until 
the  claimant  shall  have  established  his  claim  by  the  judgment 
of  a  court  of  competent  jurisdiction.  The  court  must  make 
proper  provision  for  unproved  or  unclaimed  deposits. 

Should  any  bank  at  the  time  the  superintendent  of  banks 
takes  possession  of  its  property  and  business,  have  in  its  posses- 
sion, as  bailee  for  safekeeping  and  storage,  any  jewelry,  plate, 
money,  specie,  bullion,  stocks,  bonds,  securities,  valuable  papers 
or  other  valuable  personal  property  or  should  it  have  rented  any 
vaults,  safes  or  safe  deposit  boxes  or  any  portion  thereof  for 
the  storage  of  property  of  any  kindj  the  superintendent  of 
banks  may  at  any  time  thereafter  cause  to  be  mailed  to  the 
person  claiming  to  be  or  appearing  upon  its  books  to  be  the 
owner  of  such  property,  or  the  person  in  whose  name  the  safe, 
vault  or  box  stands,  a  notice  in  writing  in  a  securely  closed, 
postpaid  registered  letter,  directed  to  such  person  at  his  post- 
office  address  as  recorded  upon  its  books,  notifying  such  person 
to  remove,  within  a  period  fixed  by  said  notice  and  not  less 
than  sixty  days  from  the  date  thereof,  all  such  personal  prop- 
erty and  upon  the  date  fixed  by  said  notice,  the  contract,  if 
any,  between  such  person  and  bank  for  the  storage  of  said 
property  or  for  the  use  of  the  said  safe,  vault  or  box  shall  cease 
and  determine,  and  the  amount  of  the  unearned  rent  or 
charges,  if  any,  paid  by  such  person  shall  become  a  debt  of  the 
bank  to  said  person.  If  the  property  be  not  removed  within 
the  time  fixed  by  the  notice,  the  superintendent  of  banks  may 
make  such  disposition  of  said  property  as  the  superior  court, 
upon  application  thereto,  shall  direct.  And  the  superintend- 
ent of  banks  may  cause  any  safe,  vault  or  box  to  be  opened 
in  his  presence  or  in  the  presence  of  one  of  the  special 
deputy  superintendents  of  banks,  and  of  a  notary  public  not 
an  officer  or  in  the  employ  of  the  bank  or  of  the  super- 
intendent of  banks,  and  the  contents  thereof,  if  any,  to  be 
sealed  up  by  such  notary  public  in  a  package  upon  which 
such  notary  public  shall  distinctly  mark  the  name  and  address 
of  the  person  in  whose  name  such  safe,  vault  or  box  stands 
upon  the  books  of  the  bank  and  shall  attach  thereto  a  list  and 
description  of  the  property  therein ;  and  the  package  so  sealed 
and  addressed,  together  with  the  list  and  description,  may  be 
kept  by  the  superintendent  of  banks  in  one  of  the  general 


§  136  BANKING.  •  933 

safes  or  boxes  of  the  bank  until  delivered  to  the  person  whose 
name  it  bears ,  or  until  otherwise  disposed  of  as  directed  by 
the  court.  Whenever  any  such  bank  of  whose  property  and 
business  the  superintendent  of  banks  has  taken  possession  as 
aforesaid,  deems  itself  aggrieved  thereby,  it  may,  at  any  time 
within  ten  days  after  such  taking  possession,  apply  to  the 
superior  court  in  the  county  in  which  the  principal  office  of 
such  bank  is  located  to  enjoin  further  proceedings;  and  said 
court,  after  citing  the  superintendent  of  banks  to  show  cause 
why  further  proceedings  should  not  be  enjoined,  and  hearing 
the  allegations  and  proofs  of  the  parties  and  determining  the 
facts  may,  upon  the  merits,  dismiss  such  application  or  enjoin 
the  superintendent  of  banks  from  further  proceedings,  and 
direct  him  to  surrender  such  business  and  property  to  such 
bank.  An  appeal  as  above  provided  shall  operate  as  a  stay 
of  the  judgment  of  the  superior  court,  and  no  bond  need  be 
given  if  the  appeal  be  taken  by  the  superintendent  of  banks ; 
but  if  the  appeal  be  taken  by  such  bank,  a  bond  shall  be  given, 
as  required  by  section  nine  hundred  forty-three  of  the  Code 
of  Civil  Procedure.  Whenever  the  superintendent  of  banks 
shall  have  paid  to  each  and  every  depositor  and  creditor  of 
such  bank  whose  claim  or  claims  as  such  creditor  or  depositor 
shall  have  been  duly  proved  and  allowed,  the  full  amount  of 
such  claims,  and  shall  have  made  proper  provision  for  un- 
claimed and  unpaid  deposits  or  dividends,  and  shall  have  paid 
all  the  expenses  of  the  liquidation,  the  superintendent  of 
banks  shall  call  a  meeting  of  the  stockholders  of  such  bank 
giving  notice  thereof  for  thirty  days  in  one  or  more  newspapers 
published  in  the  county  where  the  principal  office  of  such  bank 
is  located.  At  such  meeting  the  stockholders  shall  determine 
whether  the  superintendent  of  banks  shall  be  continued  as 
lic^uidator  and  shall  wind  up  the  affairs  of  such  bank,  or 
whether  an  agent  or  agents  shall  be  elected  for  that  pui^pose, 
and  in  so  determining  the  said  stockholders  shall  vote  by  bal- 
lot, in  person  or  by  proxy,  each  share  of  stock  entitling  the 
holder  to  one  vote,  and  the  majority  of  the  stock  shall  be 
necessary  to  a  determination.  In  case  it  is  determined  to  con- 
tinue the  liquidation  under  the  superintendent  of  banks,  he 
shall  complete  the  liquidation  of  the  affairs  of  such  bank, 
and  after  paying  the  expenses  thereof,  shall  distribute  the 
proceeds  among  the  stockholders  in  proportion  to  the  several 
holdings  of  stock  in  such  manner  and  upon  such  notice  as  may 
be  directed  by  the  superior  court.  In  case  it  is  determined  to 
appoint  an  agent  or  agents  to  liquidate,  the  stockholders  shall 
thereupon  select  such  agent  or  agents  by  ballot,  a  majority  of 
the  stock  present  and  voting,  in  person  or  by  proxy,  being 
necessary  to  a  choice.     Such  agent  or  agents  shall  execute  and 


934  •  APPENDIX.  §  136a 

file  with  the  superintendent  of  banks  a  bond  to  the  people  of 
the  state  in  siieh  amount,  with  such  sureties  and  in  such  form 
as  shall  be  approved  by  the  superintendent  of  banks,  condi- 
tioned for  the  faithful  performance  of  all  the  duties  of  his 
or  their  trust,  and  thereupon  the  superintendent  of  banks  shall 
transfer  and  deliver  to  such  agent  or  agents  all  the  undivided 
and  uncollected  or  other  assets  of  such  bank  then  remaining 
in  his  hands;  and  upon  such  transfer  and  delivery,  the  said 
superintendent  of  banks  shall  be  discharged  from  any  and  all 
further  liability  to  such  bank  and  its  creditors.  Such  agent  or 
agents  shall  convert  the  assets  coming  into  his  or  their  pos- 
session into  cash,  and  shall  account  for  and  make  distribution 
of  the  property  of  said  bank  as  Is  herein  provided  in  the  case 
of  distribution  by  the  superintendent  of  banks,  except  that  the 
expenses  thereof  shall  be  subject  to  the  direction  and  control 
of  a  court  of  record  of  competent  jurisdiction.  In  case  of  the 
death,  removal  or  refusal  to  act  of  any  such  agent  or  agents, 
the  stockholders,  on  the  same  notice,  to  be  given  by  the  super- 
intendent of  banks  upon  proof  of  such  death,  removal  or  re- 
fusal to  act  being  filed  with  him.  and  by  the  same  vote  hereinbe- 
fore provided,  may  elect  a  successor,  who  shall  have  the  same 
powers  and  be  subject  to  the  same  liabilities  and  duties  as  the 
agent  originally  elected.  Dividends  and  unclaimed  deposits 
remaining  unpaid  in  the  hands  of  the  superintendent  of  banks 
for  six  months  after  the  order  for  final  distribution  shall  be 
by  him  deposited  with  the  state  treasurer  in  the  same  manner 
and  subject  to  the  same  disposition  as  provided  for  in  section 
one  thousand  tw^o  hundred  thirty-four  of  the  Code  of  Civil 
Procedure.  The  superintendent  of  banks  may  pay  over  the 
moneys  so  held  "by  him  to  the  persons  respectively  entitled 
thereto  upon  being  furnished  satisfactory  evidence  of  their 
right  to  the  same.  In  cases  of  doubt  or  conflicting  claims  he 
may  require  an  order  of  the  superior  court  authorizing  and 
directing  the  payment  thereof.  [Amendment  approved  May 
6,  1913;  Stats.  1913,  p.  192.] 

Bank  ceasing  to  exist. 

Sec.  136a.  Any  bank  Avhich  has  ceased  to  do  a  banking  busi- 
ness whether  through  voluntary  action  on  its  part  or  through 
expiration  of  its  corporate  existence,  shall  immediately  liqui- 
date its  affairs  and  any  unclaimed  deposits  or  dividends  shall 
be  paid  into  the  state  treasury  in  the  manner  and  for  the 
purposes  provided  in  section  one  hundred  thirty-six  of  this 
act  within  six  months  after  the  date  such  bank  ceased  to  con- 
duct a  banking  business,  and  in  case  the  superintendent  of 
banks  shall  have  reason  to  conclude  that  the  liquidation  of 
such  bank  is  not  being  safely  or  expeditiously  conducted,  he 


§'137  BANKING.  .  935 

may  take  possession  of  the  property  of  such  bank  and  liquidate 
its  affairs  in  the  same  manner  as  provided  in  section  one  hun- 
dred thirty-six  of  this  act.  Whenever  any  bank  of  whose 
property  the  superintendent  of  banks  has  taken  possession  as 
aforesaid,  deems  itself  aggrieved  thereby,  it  may  within  the 
time  and  in  like  manner  and  effect  as  provided  in  section  one 
hundred  thirty-six  of  this  act  apply  to  the  superior  court  to 
enjoin  further  proceedings.  [New  section  approved  May  6, 
1913;  Stats.  1913,  p.  198.] 

Jurisdiction  in  superior  court. 

Sec.  136b.  In  any  action  or  proceeding  brought  under  any 
provision  of  this  act,  exclusive  original  jurisdiction  shall  be 
vested  in  the  superior  court  of  the  county  in  which  is  located 
the  principal  place  of  business  of  the  bank  affected  thereby, 
and  all  proceedings  relating  to  the  same  matter,  under  any 
provision  of  this  act,  including  proceedings  for  liquidation  of 
the  affairs  of  any  such  bank,  shall  be  filed  with  and  treated 
as  a  part  of  the  record  in  such  original  proceedings,  and  all 
papers  relating  to  any  such  action  or  proceeding,  including  the 
copy  of  certificate  of  appointment  of  any  special  deputy  and 
the  inventories  required  to  be  filed  in  the  matter  of  any  such 
liquidation,  shall  be  filed  with  and  made  a  part  of  the  record 
of  such  original  proceeding  without  the  payment  of  any  addi- 
tional fees  therefor,  and  in  any  such  action  no  damage  may  be 
awarded,  but  the  action  otherwise  shall  be  tried  and  deter- 
mined according  to  the  provisions  of  the  Code  of  Civil  Proce- 
dure. [New  section  approved  May  6,  1913';  Stats.  1913, 
p.  198.] 

Right  to  dissolve.     Discharge  of  receiver.    Unclaimed  moneys 
escheat.     Investment  of. 

Sec.  137.  1.  Any  bank  shall  have  the  right,  on  application  of 
the  stockholders  or  members,  to  apply  to  the  superior  court 
of  the  county  wherein  its  principal  place  of  business  is  situ- 
ated, to  dissolve  said  bank  in  the  manner  provided  for  in  title 
six,  part  three  of  the  Code  of  Civil  Procedure. 

2.  At  the  expiration  of  four  months  after  the  settlement  of 
the  final  account  of  the  receiver  of  any  bank  appointed  prior 
to  July  1,  1909,  any  dividends  due  depositors,  or  other  cred- 
itors, or  stockholders  of  such  bank  and  remaining  unpaid  or 
■  uncalled  for  and  in  the  hands  of  such  receiver  may  be  paid 
by  him  into  the  treasury  of  the  county  in  which  such  bank  is 
situated  which  money  shall  be  held  in  the  treasury  of  said 
county,  and  at  the  same  time  it  shall  be  the  duty  of  such  re- 
ceiver to  furnish,  to  the  county  treasurer  of  said  county  a  list 
of  names  of  all  depositors   or  other  persons  to  whom  such 


^36  ^  APPE(NDix.  §  139' 

money  belongs  or  who  are  entitled  thereto  and  thereupon  such 
receiver  shall  be  entitled  to  his  discharge. 

3.  The  moneys  referred  to  in  subdivision  two  of  this  section 
shall  be  paid  out  on  the  order  of  the  court  appointing  such 
receiver. 

4.  All  moneys  paid  under  subdivision  two  of  this  section,  un- 
called for  within  five  years  after  being  paid  in,  shall  by  opera- 
tion of  law,  and  without  action  had,  escheat  to  the  state.  All 
moneys  held  by  any  county  treasurer  under  subdivision  two  of 
this  section,  when  such  moneys  have  escheated  to  the  state  as 
hereinbefore  provided,  shall  be  paid  by  the  county  treasurer 
into  the  state  treasury,  and  thereafter  only  be  drawn  out  in 
such  maimer  as  may  be  provided  for  by  law  for  the  estates  of 
deceased  persons  escheated  to  this  state. 

5.  The  state  board  of  control  must  invest  such  monej^s  in  the 
same  manner  that  the  state  school  land  fund  is  invested  as  pro- 
vided by  law.  But  any  claimant  shall  be  entitled  to  recover 
as  herein  provided  only  the  principal  so  paid  into  the  state 
treasury.  [Amendment  approved  May  G,  1913i;  Stats.  1913, 
p.  198.     Also  amended  April  21,  1911;  Stats.  1911,  p.  958.] 

Reports,  failure  to  make. 

Sec.  138.  If  any  bank  shall  fail  to  make  any  report  re- 
quired by  the  provisions  of  section  one  hundred  thirty  or  one 
hundred  thirty  a  of  this  act,  within  ten  days  from  the  day 
designated  for  the  making  thereof  by  the  superintendent  of 
banks,  or  to  include  therein  any  matter  required  by  the  provi- 
sions of  either  of  said  sections,  it  shall  forfeit  to  the  people  of 
the  state  the  sum  of  one  hundred  dollars  for  each  day  that  any 
such  report  shall  be  so  delayed  or  withheld  by  the  failure  or 
neglect  of  such  bank.  In  the  event  of  the  failure  of  any  such 
bank  to  make  any  such  report  required  from  it,  the  superin- 
tendent of  banks  may,  in  his  discretion,  immediately  cause  the 
books,  papers  and  affairs  of  such  bank  to  be  examined  at  the 
expense  of  such  bank.  [Amendment  approved  May  6,  1913; 
Stats.  1913,  p.  199.] 

Directors  of  banks,  duties  of.     Report  of  directors  to  contain 
what. 

Sec.  139.  It  shall  be  the  duty  of  the  board  of  directors  of 
every  bank  to  examine  fully  into  the  books,  papers  and  affairs 
of  the  bank  of  which  they  are  directors,  and  particularly  into 
the  loans  and  discounts  thereof,  with  a  special  view  to  ascer- 
taining the  value  and  security  thereof,  and  of  the  collateral 
security,  if  any  given,  in  connection  therewith,  and  into  such 
other  matters  as  the  superintendent  of  banks  may  require ; 
such  examination  to  be  made  at  least  once  a  year,  but  no  such 
subsequent  yearly   examinations  shall  be  made   within  three 


§  140  BANKING.  937 

months  of  the  next  preceding  examination.  Such  directors 
shall  have  power  to  employ  such  assistance  in  making  such 
examinations  as  they  may  deem  necessary.  Within  ten  days 
after  the  completion  of  such  examination,  a  report  in  writing 
thereof,  sworn  to  by  the  directors  making  the  same,  shall  be 
made  by  the  board  of  directors  of  such  bank,  and  placed  on 
file  with  the  records  of  said  bank,  and  shall  be  subject  to  ex- 
amination by  the  superintendent  of  banks.  Such  report  shall 
particularly  contain  a  statement  of  the  assets  and  liabilities 
of  the  bank  examined,  as  shown  by  its  books,  together  Avith 
any  deductions  from  the  assets,  or  additions  to  liabilities, 
which  such  directors  or  committee,  after  such  examination, 
may  determine  to  make.  It  shall  also  contain  a  statement,  in 
detail,  of  loans,  if  any,  which  in  their  opinion  are  worthless 
or  doubtful,  together  with  their  reasons  for  so  regarding 
them ;  also  a  statement  of  loans  made  on  collateral  security, 
which  in  their  opinion  are  insufficiently  secured,  giving  in  each 
case  the  amount  of  the  loan,  the  name  and  market  value  of  the 
collateral,  if  it  has  any  market  value,  and,  if  not,  a  statement 
of  that  fact,  and  its  actual  value  as  nearly  as  possible.  Such 
report  shall  also  contain  a  statement  of  overdrafts,  of  the 
names  and  amounts  of  such  as  they  consider  worthless  or 
doubtful,  and  a  full  statement  of  such  other  matters  as  affect 
the  solvency  and  soundness  of  the  bank.  If  the  directors  of 
such  banks  shall  fail  to  make  such  examination  or  fail  to  cause 
it  to  be  made,  or  shall  fail  to  file  such  report  of  such  examina- 
tion in  the  manner  and  within  the  time  specified,  the  superin- 
tendent of  banks  shall  have  authority  to  make  or  cause  to  be 
made  an  extra  examination  of  such  bank  at  the  expense  of 
such  bank.  [Amendment  approved  May  6,  1913 ;  Stats.  1913, 
p.  200.] 

Report  of  superintendent  to  governor. 

Sec.  140.  The  superintendent  of  banks  shall  report  during 
the  month  of  October  of  each  year,  to  the  governor,  for  sub- 
mission to  the  next  ensuing  session  of  the  legislature : 

1.  A  summary  of  the  state  and  condition  of  every  bank  re- 
quired to  report  to  him,  and  from  which  reports  have  been  re- 
ceived the  preceding  year,  with  an  abstract  of  the  whole 
amount  of  capital  returned  by  them,  the  whole  amount  of 
their  debts  and  liabilities,  and  the  total  amount  of  means  and 
resources,  specifying  the  amount  of  specie  held  by  them  at 
the  time  of  the  last  report  to  him,  and  such  other  information 
in  relation  to  such  banks  as,  in  his  judgment,  may  be  useful. 

2.  A  statement  of  all  banks  authorized  by  him  to  do  business 
during  the  previous  year,  with  their  names  and  locations  and 
dates  of  incorporation,  and  particularly  designating  such  as 
have  commenced  business  during  the  year. 


938  APPENDIX.  §  141 

3.  A  statement  of  the  banks  whose  business  has  been  closed 
during  the  year. 

4.  Any  amendments  to  the  banking  law,  which,  in  his  judg- 
ment, may  be  desirable. 

5.  The  names  and  compensation  of  all  persons  employed  by 
him,  and  the  w^hole  amount  of  the  receipts  and  expenses  of 
the  department  during  the  year. 

6.  The  names  of  banks  placed  in  his  hands  in  process  of 
liquidation,  and  the  amount  of  dividends  paid  thereon. 

Such  report,  and  the  usual  number  of  copies  for  the  use  of 
the  legislature,  shall  be  printed  and  in  readiness  for  dis- 
tribution by  the  state  printer,  and  one  thousand  copies  shall 
be  printed  for  the  use  of  the  department,  the  expense  of  which 
shall  be  charged  among  the  general  expenses  of  the  depart- 
ment. 

Weekly  bulletin  to  be  posted  by  superintendent:  items  of. 
Bulletins,  file  of. 
Sec.  141.  1.  The  superintendent  of  banks  shall  keep  in  his 
office,  in  a  place  accessible  to  the  general  public,  a  bulletin- 
board  upon  which  he  shall  cause  to  be  posted  at  noon  on 
Friday  of  each  week  a  detailed  statement,  signed  by  him  or, 
in  case  of  his  absence  from  San  Francisco  or  inability  to  act, 
by  the  deputy  superintendent  in  charge,  giving  the  following 
items  of  general  information  with  regard  to  the  work  of  the 
department  since  the  preceding  statement: 

(a)  The  name  of  every  bank  that  has  filed  in  the  banking 
department  an  application  for  authorization  to  commence  busi- 
ness, its  location  and  the  date  of  filing  of  such  application. 

(b)  The  name  and  location  of  every  bank  authorized  by 
the  superintendent  of  banks  to  commence  business,  its  capital, 
surplus,  and  the  date  of  authorization. 

(c)  The  name  of  every  bank  to  which  a  certificate  of  au- 
thorization has  been  refused  by  the  superintendent  of  banks, 
and  the  date  of  notice  of  refusal. 

(d)  The  name  and  residence  of  every  person  appointed  by 
the  superintendent  of  banks  as  a  deputy,  examiner  or  em- 
ploj^ee  in  the  banking  department,  the  title  of  the  office  to 
which  appointed,  the  compensation  -paid,  and  the  date  of 
appointment. 

(e)  The  date  on  which  a  call  for  a  report  by  banks  was 
issued  by  the  superintendent  of  l)anks,  and  the  day  designated 
as  the  day  with  I'cference  to  which  such  report  should  be  made. 

(f)  The  name  and  location  of  every  bank  whose,  creditors 
or  depositors  have  been  paid  in  full  by  the  superintendent  of 
banks  and  a  meeting  of  whose  stockholders  shall  have  been 
called,  together  with  date  of  notice  of  meeting  and  date  of 
meeting. 


§  145  ^  BANKING.  939 

(g)  The  name  and  location  of  every  hank  suhject  to  the 
banking  law  whose  affairs  and  hnsiness  shall  have  been  finally 
liquidated,  or  in  course  of  liquidation. 

(h)  The  name  and  location  of  every  bank  which  has  applied 
for  approval  of  a  change  of  name,  and  the  name  proposed. 

2.  Every  such  bulletin,  after  having  been  posted  as  aforesaid 
for  one  week,  shall  be  placed  on  a  file  for  such  statements,  to 
be  kept  in  the  ol^ce  of  the  superintendent  of  banks.  All  such 
statements  shall  be  public  documents,  and  at  all  reasonable 
times  shall  be  open  to  public  inspection  during  usual  banking 
hours. 

Official  reports,  prima  facie  evidence. 

Sec.  142.  Every  of^cial  report  made  by  the  superintendent 
and  every  report  duly  verified  of  an  examination  made,  shall 
be  prima  facie  evidence  of  the  facts  therein  stated,  for  all  pur- 
poses in  any  action  or  proceeding  wherein  such  bank  is  a 
party. 

Neglect  of  duty  by  superintendent. 

Sec.  143.      [Repealed  May  6,  1913;  Stats.  1913,  p.  200.] 

Action  for  recovering*  forfeitures.  Fines  may  be  compromised. 
Sec.  144.  Whenever  by  the  terms  of  thi^  act  a  penalty  or 
forfeiture  is  imposed,  the  same  shall  be  recovered  in  an  action 
brought  at  the  request  of  the  superintendent  of  banks  by  the 
attorney  general,  in  the  name  of  the  people  of  the  state,  and 
the  sum  recovered  shall  be  paid  into  the  state  banking  fund 
and  used  in  payment  of  claims  against  the  said  fund.  Any 
fine  or  pecuniary  penalty,  Avhich  may  be  incurred  by  any  bank 
on  account  of  the  violation  of  any  provision  of  this  act,  may  be 
compromised  and  a  less  amount  than  that  prescribed  by  this 
act  accepted  by  the  superintendent  of  banks  at  any  time  prior 
to  the  institution  of  action  to  recover  the  same.  [Amendment 
approved  June  3,  1915;  Stats.  1915,  p.  1134.] 

Powers,  etc.,  abridged,  enlarged  or  modified.  Conformity  by 
July  1,  1918. 
Sec.  145.  The*  powers,  privileges,  duties  and  restrictions 
conferred  and  imposed  upon  any  corporation  or  individual 
existing  and  doing  business  under  the  laws  of  this  state  are 
hereby  abridged,  enlarged  or  modified  as  each  particular  case 
may  require  to  conform  to  the  provisions  of  this  act,  notwith- 
standing anything  to  the  contrary  in  their  respective  articles 
of  incorporation  or  charters.  All  the  provisions  of  this  act 
shall  apply  with  equal  force  and  effect  to  all  corporations 
which  are  now  doing  or  which  may  hereafter  do  a  banking 
business  in  this  state,  except  where  express  exception  or  ex- 


940  APPENDIX.  §  147 

emption  may  be  made  herein,  and  to  such  other  persons,  as- 
sociations, co-partnerships  or  corporations  who  shall,  by 
violating  any  of  its  provisions,  become  subject  to  the  penal- 
ties provided  herein.  The  legality  of  investments  heretofore 
made,  or  title  to  property  heretofore  acquired  or  conveyed 
through  transactions  heretofore  had  by  any  bank  pursuant  to 
any  provision  of  law  in  force  when  such  investments  were 
made  or  transactions  had,  shall  not  be  affected  by  the  pro^^- 
sions  of  this  act,  except  that  any  such  investments  made  prior 
to  July  1,  1909,  when  not  complying  with  the  provisions  hereof, 
shall  be  changed  to  conform  hereto ;  but  such  change  shall  be 
made  gradually  and  in  such  manner  as  to  prevent  loss  or 
embarrassment  in  the  business  of  such  bank,  or  unnecessary 
loss  or  injury  to  the  borrowers  on  such  security ;  provided, 
further,  that  in  any  event,  all  investments  and  securities  and 
excess  in  investments  made  prior  to  July  1,  1909,  which  are 
not  in  conformity  with  the  provisions  and  spirit  of  this  act 
and  which  have  been  acquired  and  are  now  held  by  any  bank, 
must  be  written  off  as  assets  of  such  bank  prior  to  July  1,  1918  ; 
and  no  bank  holding  any  such  investments  or  securities  ac- 
quired prior  to  July  1,  1909,  shall,  after  July  1,  1918,  be  per- 
mitted to  pay  any  dividends  to  its  stockholders  until  it  shall 
have  written  off  all  such  non-conforming  investments  or  se- 
curities ;  and  provided,  further,  that  the  legality  of  any  invest- 
ments heretofore  lawfully  made,  pursuant  to  the  provisions  of 
this  act  as  it  existed  on  and  subsequent  to  July  1,  1909,  shall 
not  be  affected  by  the  provisions  of  this  section.  [Amend- 
ment approved  June  3,  1915;  Stats.  1915,  p.  1134.  Also 
amended  May  6,  1913;  Stats.  1913,  p.  200.] 

Conflicting"  laws  repealed. 

Sec.  146.     All  acts,  or  parts  of  acts,  in  conflict  with  this  act 
are  hereby  repealed. 

Act  takes  effect  when. 

Sec.  147.     This  act  takes  effect  July  first,  1909. 


BONDS. 

An  Act  to  facilitate  the  giving  of  hands  required  hy  laic. 

[Approved  March  12,  1885;  Stats.  1885.  p.  114.] 

This  act  authorizerl  surety  corporations  to  act  as  sole  surety.  It  is 
apparently  superseded  by  sections  1056  and  1057  of  the  Code  of  Civil 
Procedure  and  by  section  955,  subdivision  -i,  of  the  Political  Code, 


CORPORATIONS.  941 

CORPORATIONS. 

Act  allowing  corporation  to  act  as  surety:  See  ante,  tit.  "Bonds." 

An  Act  to  provide  for  the  payment  of  the  icages  of  mechanics 
and  laborers  employed  hy  corporations. 
[Approved  March  31,  1891;  Stats.  1891,  p.  195.] 
Constitutionality.     Declared  unconstitutional   in   Slocum   v.   Bear  Val- 
ley Irrigation  Co.,  123  Cal.  555. 

This  act  required  corporations  to  pay  the  wages  of  the  mechanics  and 
laborers  hired  by  it  weekly  or  monthly.     See  next  act. 

An  Act  requinng  every  corporation  doing  Imsiness  in  this  state 
to  pay  their  employees,  and  each  of  them,  at  least  once  in 
each  and  every  month,  the  wages  earned  hy  such  employee; 
to  limit  the  defenses  ichich  may  he  set  up  hy  such  corpora- 
tion to  assignments  of  wages,  set-off  or  counterclaims,  or  the 
absence  of  such  employee  at  the  time  of  making  payment, 
and  in  case  of  such  absence  the  wages  are  payable  upon  de-  ■ 
mand;  to  prohibit  assignments ^of  wages  for  the  purpose  of 
evading  the  provisions  of  this  act,  and  agreements  to  accept 
wages  at  longer  periods  than  as  herein  provided  as  a  condi- 
tion of  employment ;  to  fix  a  penalty  for  this  violation  of 
the  provisions  of  this  act  hy  such  corporation,  and  to  pro- 
vide for  the  disposition  of  any  fines  recovered  from  corpora- 
tions violating  the  same. 

[Approved  March  29,  1897;  Stats.  1897,  p.  231.] 

See  prior  act.  See  also  Act  of  1915,  Stats.  1915,  p.  1292,  providing  for 
a  semi-monthly  pay  day.     This  act  is  in  the  General  Laws  Act,  2143b. 

constitutionality.  Declared  unconstitutional  in  Johnson  v.  Goodyear 
M.  Co.,  127  Cal.  4. 

An  Act  autJiorizing  certain  corporations  to  act  as  executor  and 
in  other  capacities,  and  to  provide  for  and  regidate  the 
adnmiistration  of  trusts  by  such  corporations. 

[1.  Approved  April  6,  1891;  Stats.  1891,  p.  490.  2.  Amended  Aprill, 
1897;  Stats.  1897,  p.  424.  3.  Amended  March  20,  1903;  Stats.  1903, 
p.  244.  4.  Amended  March  18,  1905;  Stats.  1905,  p.  232.  5.  Amended 
March  18,  1907;  Stats.  1907,  p.  562.] 

§  1.  What  corporation  may  act  as  executor. 

§  2.  Deposits  made  with  corporation. 

§  3.  Public  administrator  may  make  deposits. 

§  4.  Court  may  order  deposit  and  reduce  bonds. 

§  5.  Eesponsible   for  investments. 

§  6.  Interest. 

§  7.  Deposit  of  bonds  with  state  treasurer. 

§  8.  May  mortgage  real  estate. 

§  9.  Deposit,  increase  and  decrease  of. 

§  10.  Abstract  of  title. 


942  APPKNDIX. 

§  11.  Certificate  of  authority. 

§  12.  Semi-annual  statement. 

§  13.  Verification  of  statement. 

§  14.  Duty  of  bank  commissioners. 

§  15.  [No  section  of  this  number.] 

§  16.  Administering  oaths  and  examining  witnesses. 

§  17.  Duty  when  corporation  violates  law. 

§  18.  False  statement  revokes  authority. 

§  19.  Ketirement  from  business. 

§  20.  Conflicting  acts  repealed. 

§  21.  Time  of  taking  effect. 

§  22.  Communications  confidential. 

§  23.  Word  "trust."     Use  prohibited  when. 

What  corporation  may  act  as  executor. 

Section  1.  Any  corporation  which  has  or  shall  be  incorpor- 
ated under  the  general  incorporation  laws  of  this  state,  au- 
thorized by  its  articles  of  incorporation  to  act  as  executor, 
administrator,  guardian,  assignee,  receiver,  depositary  or 
trustee,  and  having  a  paid-up  capital  of  not -less  than  two 
hundred  and  fifty  thousand  dollars,  of  which  one  hundred 
thousand  dollars  shall  have  been  actually  paid  in,  in  cash,  may 
be  appointed  to  act  in  such  capacity  in  like  manner  as  in- 
dividuals. In  all  cases  in  which  it  is  required  that  an  execu- 
tor, administrator,  guardian,  assignee,  receiver,  depositary, 
or  trustee,  sliall  qualify  by  taking  and  subscribing  an  oath,  or 
in  which  an  affidavit  is  required,  it  shall  be  a  sufficient  quali.- 
fication  by  such  corporation  if  such  oath  shall  be  taken  and 
subscribed  or  such  affidavit  made  by  the  president  or  secre- 
tary or  manager  or  trust  officer  thereof,  and  such  officer  shall 
be  liable  for  the  failure  of  svich  corporation  to  perform  any  of 
the  duties  required  by  law  to  be  performed  by  individuals 
acting  in  like  capacity  and  subject  to  like  penalties;  and  such 
corporations  shall  be  liable  for  such  failure  to  the  full  amount 
of  its  capital  stock ;  provided,  any  such  appointment  as  guard- 
ian shall  apply  to  the  estate  only,  and  not  to  the  person.  Such 
corporation  shall  be  entitled  to  and  shall  be  allowed  proper 
compensation  for  all  the  services  performed  by  them  under  the 
foregoing  provisions  of  this  act ;  but  such  compensation  shall 
not  exceeed  that  allowed  to  natural  persons  for  like  services. 
[Amendment  approved  March  18,  1907;  Stats.  1907,  p.  562.] 

Deposits  made  with  corporation. 

Sec.  2.  Any  court,  having  appointed  and  having  jurisdic- 
tion of  any  executor,  administrator,  guardian,  assignee,  re- 
ceiver, depositary,  or  trustee,  upon  the  application  of  such 
officer  or  trustee,  or  upon  the  application  of  any  person  hav- 
ing an  interest  in  the  estate  administered  by  such  officer  or 
trustee,  after  notice  to  the  other  parties  in  interest  as  the 
court  may  direct,  and  after  a  hearing  upon  such  application. 


CORPORATIONS.  943 

may  order  such  officer  or  trustee  to  deposit  any  moneys  then 
in  his  hands,  or  which  may  come  into  his  hands  thereafter, 
and  until  the  further  order  of  said  court,  with  any  such  cor- 
poration, and  upon  deposit  of  such  money,  and  its  receipt  and 
acceptance  by  such  corporation,  the  said  officer  or  trustee  shall 
be  discharged  from  further  care  or  responsibility  therefor. 
Such  deposits  shall  be  paid  out  only  upon  the  orders  of  said 
court. 

Public  administrator  may  make  deposits. 

Sec.  3.  And  it  shall  be  lawful  for  any  public  administrator 
to  deposit  with  any  such  corporation  doing  business  in  the 
county,  or  city  and  county,  in  which  he  is  acting  as  such  ad- 
ministrator, any  and  all  moneys  of  any  estate  upon  which  he 
is  administering,  not  required  for  the  current  expenses  of  the 
administration.  And  such  deposits  shall  relieve  the  public 
administrator  from  depositing  with  the  county  treasurer  the 
moneys  so  deposited  with  such  corporation.  Moneys  de- 
posited by  a  public  administrator  may  be  drawn,  upon  the 
order  of  such  administrator,  countersigned  by  a  judge  of  a 
superior  court,  when  required  for  the  purpose  of  administra- 
tion, or  otherwise. 

Court  may  order  deposit  and  reduce  bonds. 

Sec.  4.  Whenever,  in  the  judgment  of  any  court  having 
jurisdiction  of  any  estate  in  process  of  administration  by  any 
executor,  administrator,  guardian,  assignee,  receiver,  deposi- 
tary, or  trustee,  the  bond  required  by  law  of  such  officer  shall 
seem  burdensome  or  excessive,  upon  application  of  such  officer 
or  trustee,  and  after  such  notice  to  the  parties  in  interest  as 
the  court  shall  direct,  and  after  a  hearing  on  such  application, 
the  said  court  may  order  the  said  officer  or  trustee  to  deposit 
with  any  such  corporation,  for  safe-keeping,  such  portion  or 
all  of  the  personal  assets  of  said  estate  as  it  shall  deem  proper ; 
and  thereupon  said  court  shall,  by  an  order  of  record,  reduce 
the  bond  to  be  given  or  theretofore  given  by  such  officer  or 
trustees,  so  as  to  cover  only  the  estate  remaining  in  the  hands 
of  said  officer  or  trustee ;  and  the  property  as  deposited  shall 
thereupon  he  held  by  said  corporation,  under  the  orders  and 
directions  of  said  court.  Any  court  having  jurisdiction  of 
an  estate  being  administered  by  a  public  administrator,  may 
direct  such  public  administrator  to  deposit  all  or  any  part  of 
the  moneys  of  the  estate  not  required  for  the  current  expenses 
of  the  administration,  with  any  such  corporation  doing  busi- 
ness in  the  county,  or  city  and  county,  where  such  public 
administrator  is  acting. 


944  APPENDIX, 

Responsible  for  investments. 

See.  5.  fSiich  corporations  shall  not  be  required  to  give  any 
bond  or  security  in  case  of  any  appointment  hereinbefore 
provided  for,  except  as  hereinafter  provided,  but  shall  be 
responsible  for  all  investments  which  shall  be  made  by  it  of 
the  funds  which  may  be  intrusted  to  it  for  investment  by  such 
court,  and  shall  be  further  liable  as  natural  persons  in  like 
positions  now  are,  and  as  hereinafter  provided.  The  amount 
of  money  which  any  such  corporation  shall  have  on  deposit 
at  any  time  shall  not  exceed  ten  times  the  amount  of  its 
paid-up  capital  and  surplus,  and  its  outstanding  loans  shall 
not  at  any  time  exceed  said  amount. 

Interest. 

Sec.  6.  Such  corporations  shall  pay  interest  upon  all 
moneys  held  by  them  by  virtue  of  this  act,  at  such  rate  as 
may  be  agreed  upon  at  the  time  of  its  acceptance  of  any  such 
appointment,  or  as  shall  be  provided  by  the  order  of  the  court. 

Deposit  of  bonds  with  state  treasurer. 

Sec.  7.  Each  corporation,  before  accepting  any  such  ap- 
pointment or  deposit,  shall  deposit  with  the  treasurer  of  state, 
for  the  benefit  of  the  creditors  of  said  corporation,  the  sum 
of  one  hundred  thousand  dollars  ($100,000.00),  in  bonds  of 
the  United  States,  or  municipal  bonds  of  this  state,  or  of  any 
county,  or  city,  or  school  district  thereof,  or  in  mortgages  on 
improved  and  productive  real  estate  in  this  state,  being  first 
liens  thereon,  and  the  real  estate  being  worth  at  least  twice 
the  amount  loaned  thereon.  The  bonds  and  securities  so  de- 
posited may  be  exchanged  from  time  to  time  for  other  securi- 
ties, receivable  as  aforesaid.  Said  bonds  of  the  United  States, 
or  municipal  bonds  of  this  state,  or  of  any  county,  city,  or 
school  district  thereof,  to  be  registered  in  the  name  of  said 
treasurer,  officially,  and  all  said  securities  to  be  subject  to  sale 
and  transfer,  and  to  the  disposal  of  the  proceeds  by  said  treas- 
urer, only  on  the  order  of  a  court  of  competent  jurisdiction, 
and  as  hereinafter  provided.  [Amendment  approved  April 
1,  1897;  Stats.  1897,  p.  424.] 

May  mortgage  real  estate. 

Sec.  8.  Any  such  corporation,  having  a  paid-up  capital  in 
excess  of  two  hundred  and  fifty  thousand  dollars,  may  be 
permitted  by  the  board  of  bank  commissioners  to  mortgage 
any  improved  and  productive  real  estate  owned  by  it,  in 
excess  of  said  amount,  to  the  treasurer  of  state,  for  such  sum 
as  the  said  board  may  determine ;  and  such  mortgage  may 
be  deposited  with  said  treasurer,  and,  when  so  deposited,  it 


CORPORATIONS.  945 

shall  be  included  in  the  amount  of  securities  hereinabove  re- 
quired to  be  deposited  with  said  treasurer  for  the  benefit  of 
the  creditors  of  said  corporation. 

Deposit,  increase  and  dectease  of. 

Sec.  9.  So  long  as  the  corporation  so  depositing  shall  con- 
tinue solvent,  such  corporation  shall  be  permitted  to  receive 
from  said  treasurer  the  interest  or  dividends  on  said  deposit ; 
provided,  however,  that  when  it  shall  appear  to  the  board  of 
bank  commissioners,  from  the  semi-annual  report  of  any  such 
corporation,  that  the  value  of  the  personal  property  and  cash 
held  and  possessed  by  such  corporation,  by  virtue  of  the  pro- 
visions of  this  act  and  any  amendment  thereof,  exceeds  ten 
times  the  amount  of  the  deposit  aforesaid,  said  board  shall 
require  said  corporation  to  forthwith  increase  its  said  deposit 
to  the  s^i  of  five  hundred  thousand  dollars  in  such  securities. 
And  whenever  it  shall  appear  to  said  board  that  the  amount 
of  personal  property  and  cash  so  held  by  any  such  corpora- 
tion has  been  reduced  below  ten  times  the  value  of  its  original 
deposit  above  provided  for,  and  said  corporation  is  not  in  any 
default  in  its  duties  and  obligations  hereunder,  they  shall 
allow  such  corporation  to  reduce  its  said  deposit  to  the  sum 
of  two  hundred  thousand  dollars,  by  the  withdrawal  of  such 
additional  deposit,  until  such  time  as  an  increase  in  its  hold- 
ings shall  again  require  an  additional  deposit,  as  hereinbe- 
fore provided. 

Abstracts  of  title. 

Sec.  10.  When  any  part  of  such  deposit  is  made  in  bonds 
and  mortgages,  it  shall  be  accompanied  by  full  abstracts  of 
titles  and  searches,  and  shall  be  examined  and  approved  by 
or  under  the  direction  of  the  said  board.  The  fees  for  an 
examination  of  title  by  counsel,  to  be  paid  by  the  corporation 
making  the  deposit,  shall  not  exceed  twenty  dollars  for  each 
mortgage,  and  the  fee  for  each  appraiser,  not  exceeding  two, 
besides  expenses,  shall  be  five  dollars  for  each  mortgage. 

Certificate  of  authority. 

Sec.  11.  It  shall  not  be  lawful  for  any  such  corporation  to 
accept  any  trust  or  deposit,  as  hereinbefore  provided,  after 
the  passage  of  this  act,  without  first  procuring  from  the  board 
of  bank  commissioners  a  certificate  of  authority,  stating  that 
such  corporation  has  complied  with  the  requirements  of  this 
act  in  respect  to  such  deposit. 

Semi-annual  statement. 

Sec.  12.  Such  corporation  shall  file  Avith  the  said  board  of 
bank  commissioners,  during  the  months  of  January  and  July 

Civ.  Code — 60 


946  APPENDIX. 

of  each  year,  a  statement,  under  oath,  of  the  condition  of  such 
corporation  at  the  close  of  business  on  the  thirty-first  day  of 
December  and  the  thirtieth  day  of  June,  respectively,  next 
preceding,  showing  its  financial  condition.  Also,,  a  list  and 
brief  description  of  the  trusts  held  by  such  corporation,  the 
source  of  the  appointment  thereto,  and  the  amount  of  real  and 
personal  estate  held  by  such  corporation  by  virtue  thereof, 
except  that  mere  mortgage  trusts,  wherein  no  action  has  been 
taken  by  such  corporation,  shall  not  be  included  in  such 
statement.  The  said  statement  shall  also  be  in  such  form, 
and  contain  such  reports,  returns,  and  information,  as  to  the 
affairs,  business,  condition,  and  resources  of  the  corporation, 
as  the  said  board  may  from  time  to  time  prescribe  and  require. 

Verification  of  statement. 

Sec.  13.  Such  statement  shall  be  verified  by  the  affidavit 
of  one  of  the  managing  officers  and  two  of  the  directors  or 
trustees  of  such  corporation,  who  shall  also  state  in  such  affi- 
davit that  they  have  examined  the  assets  and  books  of  such 
corporation  for  the  purpose  of  making  such  statement.  Any 
false  swearing  in  regard  to  such  statement  shall  be  deemed 
perjury,  and  shall  be  subject  to  the  punishment  prescribed  by 
law  for  such  offense. 

Duty  of  bank  commissioners. 

Sec.  14.  The  said  board  of  bank  commissioners  are  hereby 
authorized  and  empowered  to  address  any  inquiries  to  any 
such  corporation,  or  the  officers  thereof,  in  relation  to  its  do- 
ings and  conditions,  or  any  other  matter  connected  with  its 
affairs;  and  it  shall  be  the  duty  of  any  such  corporation  or 
person  so  addressed  to  promptly  reply,  in  writing,  to  such  in- 
quiries; and  they  may  also  require  reports  from  any  such 
corporation  at  any  time  they  may  deem  desirable.  It  shall 
be  the  duty  of  one  or  more  of  the  bank  commissioners,  as 
designated  by  the  commissioners,  annually,  or  as.  often  as  in 
their  judgment  they  may  deem  it  necessary,  without  previous 
notice,  to  visit  and  to  make  personal  examination  of  the 
solvency  of  any  such  corporation,  its  ability  to  fulfill  all  its 
obligations,  and  report  its  condition  to  the  attorney-general 
as  soon  as  may  be  after  such  examination. 

Sec.  15.     [No  section  numbered  15.] 

Administering  oaths  and  examining-  witnesses. 

Sec.  16.  Such  commissioners  shall  have  power  to  administer 
an  oath  to  any  person  whose  testimony  may  be  required  on 
any  such  examination,  and  to  compel  the  appearance  and  at- 
tendajice  of  any  such  person,  for  the  purpose  of  examination, 


CORPORATIONS.  94? 

by  summons,  subpoena,  or  attachment,  in  the  manner  now  au- 
thorized in  respect  to  the  attendance  of  persons  as  witnesses 
in  courts  of  record  in  this  state ;  and  all  books  and  papers 
which  may  be  deemed  necessary  to  examine  by  the  commis- 
sioners shall  be  produced,  and  their  production  may  be  com- 
pelled in  like  manner. 

Duty  when  corporation  violates  law. 

Sec.  17.  Whenever  it  shall  appear  to  the  board  of  bank  com- 
missioners, from  any  such  examination  or  report,  that  any  such 
corporation  has  committed  any  violation  of  law,  or  is  conduct- 
ing its  business  in  an  unsafe  or  unauthorized  manner,  they 
shall,  by  an  order  under  their  hands,  direct  the  discontinu- 
ance of  such  illegal  and  unsafe  or  unauthorized  practice,  and 
strict  conformity  with  the  requirements  of  the  law,  and  with 
safety  and  security  in  its  transactions ;  and  whenever  any 
such  corporation  shall  refuse  or  neglect  to  make  any  such 
report  as  hereinbefore  required,  or  to  comply  with  any  such 
order  as  aforesaid,  or  whenever  it  shall  appear  to  the  said 
board  that  it  is  unsafe  or  inexpedient  for  any  such  corpora- 
tion to  continue  to  transact  business,  they  shall  communicate 
the  facts  to  the  attorney-general,  who  shall  thereupon  institute 
such  proceedings  against  the  corporation  as  the  nature  of  the 
case  may  require. 

False  statement  revokes  authority. 

Sec.  18.  If  the  board  of  bank  commissioners  shall,  at  any 
time,  have  satisfactory  evidence  that  any  semi-annual  state- 
ment or  other  report  required  or  authorized  by  this  act,  made 
or  to  be  made  by  any  officer  or  officers  of  such  corporation, 
is  false,  it  shall  be  the  duty  of  the  said  board  to  immediately 
revoke  the  certificate  of  authority  granted  on  behalf  of  such 
corporation,  and  mail  a  copy  of  such  revocation  to  said  cor- 
poration and  to  the  clerk  of  every  court  of  record  in  this 
state.  Such  revocation  shall  not  be  set  aside  until  satisfac- 
tory evidence  shall  be  given  to  said  board  of  bank  commis- 
sioners that  such  corporation  is  in  substance  and  in  fact  in 
the  condition  set  forth  in  such  statement  or  report,  and  that 
all  the  requirements  of  this  act  have  been  complied  with. 
Such  revocation  shall  be  sufficient  cause  for  the  removal  of 
such  corporation  from  any  appointment  held  by  it  under  the 
provisions  of  this  act. 

Retirement  from  business. 

Sec.  19.  Any  corporation  which  desires  to  retire  from 
business  under  •  this  act,  shall  furnish  to  the  board  of  bank 
commissioners  satisfactory  evidence  of  its  release  and  dis- 
charge from  all  the  obligations  and  trusts  hereinbefore  pro- 


948  APPENDIX. 

vided  for;  whereupon,  they  shall  revoke  their  certificate  to 
such  corporation,  and  thereupon  the  treasurer  of  state  shall 
return  to  said  corporation  all  its  securities. 

Conflicting-  acts  repealed. 

Sec.  20.  All  laAvs  and  parts  of  laws  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

Time  of  taking-  effect. 

Sec.  21.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Communications  confidential. 

Sec.  22.  Any  corporation  exercising  the  powers  and  per- 
forming the  duties  provided  for  in  said  act,  shall  keep  in- 
violate all  communications  confidentially  made  to  it  touching 
the  existence,  condition,  management,  and  administration  of 
any  trusts  confided  to  it ;  and  no  creditor  or  stockholder  of 
any  such  corporation  shall  be  entitled  to  disclosure  of  any 
such  communication ;  provided,  however,  that  the  president, 
manager  and  secretary  of  such  corporation  shall  be  entitled 
to  knowledge  of  such  communication ;  and  provided  further, 
that  in  any  suit  or  proceeding  touching  the  existence,  condi- 
tion, management  or  administration  of  such  trust,  the  court 
wherein  the  same  is  pending  may  require  disclosure  of  any 
such  communication.  [New  section.  Added  March  20,  1903 ; 
Stats.  1903,  p.  244.] 

Word  "trust."     Use  prohibited  when. 

Sec.  23.  The  use  of  the  word  "trust"  in  combination  or 
in  connection  with  the  w^ord  "company,"  "corporation," 
"incorporation,"  "association,"  "society,"  "organization," 
or  "syndicate,"  is  hereby  prohibited  to  all  persons,  firms, 
associations,  companies  or  corporations,  other  than  corpora- 
tions provided  for  by  a  certain  act  of  the  legislature  entitled : 
"An  Act  authorizing  certain  corporations  to  act  as  executor 
and  in  other  capacities  and  to  provide  for  and  regulate  the 
administration  of  trusts  by  such  corporations,"  approved 
April  6,  1891,  and  any  person,  firm,  association,  company  or 
corporation  which  uses  the  word  "trust"  in  combination  with 
or  in  connection  with  the  word  "company,"  "corporation," 
"incorporation,"  "association,"  "society,"  "organization" 
or  "syndicate"  as  the  name  under  which  business  is  done 
or  transacted,  shall  be  subject  to  the  provisions  of  the  act 
last  referred  to  and  to  the  supervision  of  the  bank  commis- 
sioners as  required  by  the  said  act.  Any  person,  firm,  asso- 
ciation, company  or  corporation  making  use  of  the  word 
"trust"    in    combination    or    in    connection    with    the    word 


CORPORATIONS.  949 

'corporation,"  "incorporation,"  "association," 
"society,"  "organization"  or  "syndicate"  in  the  manner 
hereinabove  mentioned  in  the  transaction  of  business  and  not 
subject  to  the  provisions  of  said  act  and  the  supervision  of  the 
bank  commissioners  as  in  said  act  provided  shall  forfeit  for 
oach  day  the  offense  is  committed,  the  sum  of  one  hundred 
dollars  to  be  recovered  by  the  bank  commissioners  of  the  state 
of  California  in  the  manner  provided  by  law.  [New  section. 
Added  March  18,  1905;  Stats.  1905,  p.  232.] 

An  Act  to  protect  stockholders  and  persons  clealing  with  cor- 
porations in  this  state. 

[1.  Approved  March  29,  1878;  Stats.  1877-78,  p.  695.     2.  Amended  March 
22,  1905;  Stats.  1905,  p.  786.] 

Corporations.     False  reports  of  officers  of. 

Section  1.  Any  superintendent,  director,  secretary,  man-, 
ager,  agent,  or  other  officer,  of  any  corporation  formed  or 
existing  under  the  laAvs  of  this  state,  or  transacting  business 
in  the  same,  and  any  person  pretending  or  holding  himself 
out  as  such  superintendent,  director,  secretary,  manager, 
agent,  or  other  officer,  who  shall  willfully  subscribe,  sign,  in- 
dorse, verify,  or  otherwise  assent  to  the  publication,  either 
generally  or  privately,  to  the  stockholders  or  other  persons 
dealing  with  such  corporation,  or  its  stock,  any  untrue  or 
willfully  and  fraudulently  exaggerated  report,  prospectus, 
account,  statement  of  operations,  values,  business,  profits, 
expenditures  or  prospects,  or  other  paper  or  document  in- 
tended to  produce  or  give,  or  having  a  tendency  to  produce 
or  give,  to  the  shares  of  stock  in  such  corporation  a  greater 
value  or  less  apparent  or  market  value  than  they  really 
possess,  or  with  the  intention  of  defrauding  any  particular  per- 
son or  persons,  or  the  public,  or  persons  generally,  shall  be 
deemed  guilty  of  a  felony,  and  on  conviction  thereof,  shall 
be  punished  by  imprisonment  in  state  prison  or  a  county  jail 
not  exceeding  tAvo  years,  or  by  fine  not  exceeding  five  thou- 
sand dollars,  or  by  both. 

Sec.  2.     All  acts  and  parts  of  acts  in  conflict  with  this  act 
are  hereby  repealed. 

False  reports  by  officers,  punishment  for  giving:  See  Pen.  Code,  §  564. 


950  APPENDIX. 

A71  Act  to  provide  the  manner  of  execution  of  deeds  hy  cemetery 

corporations. 
[Approved  March  26,  1895;  Stats.  1895,  p.  75.] 

Deeds  by  cemetery  corporations. 

Section  1.  All  deeds  or  conveyances  executed  by  cemetery 
associations  or  incorporations  within  tb is  state,  sball  be  exe- 
cuted in  the  name  of  the  corporation  or  association,  under  the 
seal  thereof,  by  the  president,  or  vice-president,  and  secretary 
thereof. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this  stat- 
ute, in  so  far  as  they  conflict  with  the  same,  are  hereby 
repealed. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Cemetery  Corporations:   See  ante,  tit.  "Cemeteries." 

An  Act  requiring  corporations  organized  under  the  laws  of  an- 
other state,  territory,  or  foreign  country,  to  file  a  certified 
copy  of  tJieir  articles  of  incorporation  in  the  office  of  the 
secretary  of  state,  and  a  certified  copy  thereof,  duly  certi- 
fied Ijy  the  secretary  of  state  of  this  state  in  the  office  of  the 
county  clerk  of  the  county  where  its  principal  place  of  busi- 
ness is  located  and  also  where  such  corporation  owns  prop- 
erty, and  requiring  such  corporation  to  pay  to  the  secretary 
of  state  the  same  fees  as  are  paid  hy  corporations  formed 
under  the  laws  of  the  state  of  California,  and  providing  for 
a  penalty  for  the  violation  of  the  provisions  of  this  act. 
[Approved  March  8,  1901;  Stats.  1901,  p.  108.] 

Codified  by  sections  408,  409  and  410  of  the  Civil  Code  adopted  in 
1905.  For  former  acts  on  the  subject,  see  Stats.  1869-70,  p.  881,  and 
Stats.  1871-72,  p.  826. 

DEEDS. 

An  Act  relating  to  conveyances  of  real  estate. 

[Approved  March  11,  1874;  Stats.  1873-74,  p.  34.5.] 

§  1.     Conveyances  by  persons  whose  names  are  changed. 
§  2.     Record  of  conveyances  made  by  public  officers. 
§  3.     Indexing  of  such  conveyances. 

Conveyances  by  persons  whose  names  are  changed. 

Section  1.     Any  person  in  Avhom  the  title  of  real  estate  is 
vested,  who  shall  afterwards,  from  any  cause,  have  his  or  her 
name  changed,  shall,  in  any  conveyances  of  said  real  estate- 
so  held,  set  forth  the  name  in  which  he  or  she  derived  title  to 
said  real  estate. 


DEEDS.       HOMESTEADS.  951 

Record  of  conveyances  made  by  public  officers. 

Sec.  2.  All  conveyances  of  real  estate,  except  patents  is- 
sued by  the  state  as  a  party  made  by. any  public  officer  pur- 
suant to  any  law  of  this  state,  shall,  when  recorded  by  the 
county  recorder,  be  by  him  alphabetically  indexed  in  the 
"Index  of  Grantors,"  both  in  the  name  of  the  officer  making 
such  sale,  and  in  the  name  of  the  person  owning  the  property 
so  sold. 

Indexing  of  such  conveyances. 

.  Sec.  3.  It  is  hereby  made  the  duty  of  all  county  recorders 
to  alphabetically  index,  in  the  "Index  of  Grantors,"  both  in 
the  name  by  which  title  was  acquired,  and  also  by  Avhich  the 
same  was  conveyed,  all  conveyances  referred  to  in  section  one 
of  this  act. 

Sec.  4.  This  act  shall  be  in  force  from  and  after  its  passage. 
Code  commissioner's  note.  Concerning  this  statute  the  code  commis- 
sioner says  that  §  1  is  codified  by  §  1096  of  the  Civil  Code,  and  that  the 
rest  of  the  statute  should  be  added  to  §  4236  of  the  Political  Code:  See 
ante.  Legislation  §  1096. 

GUARDIANS. 

Act  providing  for  appointment  of  guardians  of  children  in  orphan 
asylums:  See  post,  tit.  "Infancy." 

HOMESTEADS. 

An  Act  supplementary!  to  an  act  entitled  '^ An  Act  to  autJiorize 
the    formation   of   corporations   to    provide    the    members 
thereof  tcith  homesteads,  or  lots  of  land  suitaMe  for  home- 
steads," approved  May   twentieth,   eighteen  hundred  and^ 
sixty -one. 

[Approved  March  23,  1874;  Stats.  1873-74,  p.  525.] 

§1.'    Extension  of  time  for  homestead  corporations. 
§  2.     How  existence  continued. 

Extension  of  time  for  homestead  corporations. 

Section  1.     Any  corporation  formed  under  the  act  to  which 
"this  act  is  supplemental,  whose  period  of  existence  is  not  stated 
in  its  articles  of  incorporation  to  be  ten  years,  may  continue 
its  corporate  existence  for  ten  years  from  the  date  of  filing 
•  its  articles  of  incorporation,  upon   complying   with  the  pro- 
visions of  this  act. 

How  existence  continued. 

Sec.  2.  Any  such  corporation  existing  on  the  first  day  of 
January,  eighteen  hundred  and  seventy-four,  may  at  any  time 


952  APPENDIX. 

before  its  period  of  existence,  as  stated  in  its  articles  of  in- 
corporation, shall  expire,  continue  its  existence,  as  stated  in 
section  one  of  this  act,  by  a  majority  vote  of  its  board  of 
trustees  at  any  meeting  of  such  board,  or  by  a  vote  of  a  ma- 
jority of  the  stockholders,  as  the  board  of  trustees  may  elect. 
A  certificate  of  the  action  of  the  directors,  signed  by  them 
and  their  secretary,  when  the  election  is  made  by  their  vote, 
or  upon  the  written  consent  of  the  stockholders  or  members, 
or  a  certificate  of  the  proceedings  of  the  meeting  of  the  stock- 
holders or  members,  when  such  election  is  made  at  any  such 
meeting,  signed  by  the  chairman  and  secretary  of  the  meet- 
ing and  a  majority  of  the  directors,  must  be  filed  in  the  office 
of  the  clerk  of  the  county  where  the  original  articles  of  cor- 
poration are  filed,  and  a  certified  copy  thereof  must  be  filed 
in  the  office  of  the  secretary  of  state;  and  thereafter  the  cor- 
poration shall  continue  its  existence  under  the  provisions  of 
this  act,  and  shall  possess  all  the  rights  and  powers,  and  be  sub- 
ject to  all  the  obligations,  restrictions,  and  limitations  pre- 
scribed by  the  act  of  which  this  is  supplementary. 

Sec.  3.     This  act  shall  take  effect  from  and  after  its  passage. 

INFANCY. 

An  Act  to  provide  for  the  appointment  of  guardians  of  children 
maintained  in  any  orphans'  home  or  orphan  asylum  in  this 
state. 

"^         [Approved  March  23,  1893;  Stats.  1893,  p.  203.] 

Preferences.     Consent.     Duty  of  court. 

Section  1.  When  any  orphan  or  half-orphan  has  been  main- 
tained in  any  orphans'  asylum  or  orphans'  home  in  the  state 
'  of  California  for  more  than  one  year,  the  managers  of  said 
home  or  asylum  shall  be  entitled  to  the  guardianship  of  such 
child  in  preference  to  any  other  person ;  provided,  however, 
that  such  managers  shall  not  be  appointed  guardian  of  a 
minor  child  over  fourteen  years  of  age  without  its  consent, 
nor  shall  this  act  preclude  the  court  of  competent  jurisdic- 
tion from  inquiring  into  the  fitness  of  such  managers  for  the 
guardianship  of  such  children ;  but  in  exercising  the  power 
of  the  court  to  appoint  guardians  for  minors,  the  managers  of 
the  home  having  the  care  of  such  child  for  more  than  one 
year  shall,  if  there  be  no  special  reasons  to  the  contrary  in 
any  particular  case,  be  preferred  in  the  guardianship  of  the 
person  of  the  child  to  the  parent  so  leaving  the  child,  without 
good  cause  therefor  being  shown,  under  the  care  of  said  home 
for  the  said  time. 

Sec.  2.     This  act  shall  take  effect  immediately, 


INSURANCE.  953 


mSURANCE. 

An  Act  to  provide  for  the  organization  and  management   of 
county  fire  insurance  companies. 

[1.  Approved  April  1,  1897;  Stats.  1897,  p.  439.  2.  Amended  March  23, 
1907;  Stats.  1907,  p.  941.  3.  Amended  April  ]5,  1909;  Stats.  1909, 
p.  912.       4.  Amen'ded  May  1,  1911;  Stats.  1911,  p.  1339.] 

§    1.  Incorporation  of. 

§    2.  Articles  of  incorporation.     Certificate. 

§    3.  Directors. 

§    4.  Officers. 

§    5.  Bonds. 

§    6.  Powers.     By-laws. 

§    7.  Membership. 

§    8.  Eisks. 

§    9.  Classifying  risks. 

§  10.  Insuring  outside  county  and  in  municipalities. 

§  11.  Adjustment  of  losses.     Arbitration. 

§  12.  Assessments  for  deficiency. 

§  13.  Notice  of  assessments. 

§  14.  Action  for  neglect  or  refusal  to  pay  assessment. 

§  15.  Annual  statement. 

§  16.  Withdrawal. 

§  17.  Eeport  of  officers. 

§  18.  Dissolution. 

§  19.  Conflicting  laws  repealed. 

Incorporation  of. 

Section  1.  Any  number  of  persons,  not  less  than  twenty- 
five,  residing  in  any  county  in  this  state,  owning  insurable 
property  aggregating  not  less  than  fifty  thousand  dollars  in 
value,  which  they  desire  to  have  insured,  may  incorporate 
for  the  purpose  of  mutual  insurance  against  loss  or  damage 
by  fire. 

Articles  of  incorporation.     Certificate. 

Sec.  2.  Such  persons  shall  file  with  the  insurance  commis- 
sioner a  declaration  of  their  intention  to  incorporate  for  the 
purposes  expressed  in  section  one  of  this  act,  which  declaration 
shall  be  signed  by  all  of  the  incorporators,  and  shall  contain 
a  copy  of  the  articles  of  incorporation  proposed  to  be  adopted. 
The  insurance  commissioner  shall  examine  the  proposed 
articles  of  incorporation,  and  if  they  conform  to  this  act  he 
shall  deliver  to  such  persons  a  certificate  permitting  them  to- 
incorporate  as  such  insurance  company.  Such  certificate  shall 
be  directed  to  the  clerk  of  the  county  in  which  such  corpora- 
tion is  proposed  to  be  organized,  and  shall  contain  a  copy  of 
the  proposed  articles  of  incorporation.  Upon  filing  with  the 
secretary  of  state  the  certified  copies  of  the  duly  executed 
articles  of  incorporation,  as  required  by  section  two  hundred 


954  APPENDIX. 

and  ninety  of  the  Civil  Code  of  the  state  of  California,  and 
of  the  certificate  above  provided  for,  the  secretary  of  state  shall 
thereupon  issue  a  certificate  of  incorporation  to  such  county  in- 
surance company,  and,  upon  organizing  under  such  articles  of 
incorporation,  such  county  fire  insurance  company  may  carry 
on  a  fire  insurance  business  as  hereinafter  provided.  The 
articles  of  incorporation  and  the  charter  or  certificate  obtained 
by  any  county  fire  insurance  company  operating  under  the 
provisions  of  this  act  shall  be  subject  to  the  control  and  modi- 
fication by  the  legislature  of  the  state  of  California.  The 
by-laws  and  all  amendments  thereto  shall  be  filed  with  the 
insurance  commissioner  within  sixty  (60)  days  after  their 
adoption. 

Directors. 

Sec.  3.  The  number  of  directors  shall  not  be  less  than  (7) 
seven,  nor  more  than  eleven  (11),  a  majority  of  whom  shall 
constitute  a  quorum  to  do  business.  These  directors  shall  be 
elected  from  the  members  of  the  association  by  ballot,  and 
shall  hold  office  for  one  year,  or  until  their  successors  are 
elected  and  qualified.  The  annual  meeting  of  the  members 
of  the  company  shall  be  on  the  second  Monday  in  January  of 
each  year.  In  the  election  of  the  first  board  of  directors  each 
member  shall  be  entitled  to  one  vote.  At  every  subsequent 
election,  every  person  insured  shall  be  entitled  to  as  many 
votes  as  there  are  directors  to  be  elected,  and  an  equal  addi- 
tional number  for  every  risk  or  risks  he  holds  in  the  company, 
and  he  may  cast  the  same  in  person  or  by  proxy,  distinbuting 
them  among  the  directors  to  be  elected,  or  among  a  less  num- 
ber of  directors,  or  cumulating  them  upon  one  candidate,  as 
he  shall  see  fit. 

Officers. 

Sec.  4.  The  directors  shall  elect,  from  their  own  number, 
a  president  and  a  vice-president,  and  shall  also  elect  a  treas- 
urer and  a  secretary,  who  may  or  may  not  be  members  of  the 
company.  All  of  such  officers  hold  their  office  for  one  year 
from  the  date  of  their  election,  .and  until  their  successors  are 
elected  and  qualified. 

Bonds. 

Sec.  5.  The  treasurer  and  secretary  shall  give  bonds  to  the 
company  for  the  faithful  performance  of  their  duties,  in  such 
amounts  as  shall  be  prescribed  by  the  board  of  directors. 

Powers.     By-laws. 

Sec.  6.  Such  corporation  and  its  directors  shall  possess  the 
usual  powers,  and  be  subject  to  the  usual  duties  of  corpora- 


INSURANCE.  955 

tions  and  directors  thereof,  and  may  make  such  by-hiAvs,  not 
inconsistent  with  the  constitution  and  the  laws  of  this  state, 
as  may  be  deemed  necessary  for  the  management  of  its  affairs, 
in  accordance  with  the  provisions  of  this  act.  Also,  to  pre- 
scribe the  duties  of  its  officers  and  to  fix  their  compensation, 
and  to  alter  and  amend  its  by-laws,  when  necessary. 

Membership. 

Sec.  7.  Any  person  owning  property  in  the  county  for 
which  any  such  company  is  formed  or  any  person  owning 
property  in  any  county  adjoining  the  county  wherein  such 
company  is  formed  as  hereinafter  provided  may  become  a 
member  of  such  company  by  insuring  therein,  and  shall  be 
entitled  to  all  the  rights  and  privileges  appertaining  thereto ; 
and  no  person  not  residing  in  the  county  in  which  the  company 
is  formed  shall  become  a  director  of  such  company.  [Amend- 
ment approved  March  23,  1907;  Stats.  1907,  p.  941.] 

Risks. 

Sec.  8.  Such  company  may  issue  policies  only  on  detached 
dwellings,  sehoolhouses,  churches,  barns  (except  livery-barns 
and  hotel-barns),  and  other  farm  buildings,  and  such  property 
as  may  be  contained  therein ;  also,  other  property  on  the  prem- 
ises owned  by  the  insured;  hay  and  grain  in  stack  or  in  the 
field,  and  live-stock  on  the  premises  of  the  insured,  anywhere 
in  the  county,  for  any  time  not  exceeding  five  years,  and  not 
to  extend  beyond  the  time  limited  for  the  existence  of  the 
charter,  and  for  an  amount  not  to  exceed  four  thousand  five 
hundred  dollars  on  'any  one  risk ;  provided,  that  no  company 
which  has  been  organized  more  than  six  months  shall  write  in- 
surance subject  to  one  fire  exceeding  three  per  cent  of  the 
amount  at  risk  upon  the  books  of  such  company.  All  persons 
so  insured  shall  give  their  obligation  to  the  company,  binding 
themselves,  their  heirs  and  assigns,  to  pay  their  pro  rata  share 
to  the  company  of  the  necessary  expense  and  of  loss  by  fire 
which  may  be  sustained  by  any  member  thereof  during  the 
time  for  which  their  respective  policies  are  written,  and  they 
shall  also  at  the  time  of  effecting  the  insurance  pay  such  a  per- 
centage in  cash,  and  such  other  charges,  as  may  be  required 
by  the  rules  or  by-laws  of  the  company. 

Classifying-  risks. 

Sec.  9.  All  such  companies  must  classify  the  property  in- 
sured therein  at  the  time  of  issuing  policies  thereon  under 
different  rates,  corresponding  as  nearly  as  may  be  to  the 
greater  or  less  risk  from  fire  loss  which  may  be  attached  to 
the  several  kinds  of  property  insured. 


956  APPENDIX. 

Insuring  outside  county  and  in  municipalities. 

Sec.  10.  No  such  company  shall  insure  any  property  be- 
yond the  limits  of  the  county  wherein  the  said  company  is 
organized,  except  that  a  company  may  insure  in  any  county 
next  adjoining  the  county  wherein  such  company  is  organized. 

Nor  shall  any  such  company  issue  policies  on  property  sit- 
uated within  the  corporate  limits  of  any  city  or  town  in  excess 
of  four  thousand  five  hundred  dollars  on  any  one  risk,  under 
one  or  more  policies.  No  adjoining  risks  can  be  taken  by 
such  company  unless  a  clear  space  of  at  least  one  hundred 
and  fifty  feet  intervenes,  and  such  intervening  space  must  con- 
tinue at  not  less  than  one  hundred  feet  during  the  life  of  the 
policy.  Nor  shall  any  risk  be  taken  on  any  building  closer 
than  one  hundred  feet  to  any  business  property ;  provided,  the 
amount  of  the  insurance  shall  not  exceed  seventy-five  per  cent 
of  the  value  of  the  property,  and  no  additional  insurance  shall 
be  alloAved.  [Amendment  approved  May  1,  1911 ;  Stats.  1911, 
p.  1339.  Also  amended  in  1907;  Stats.  1907,  p.  941,  and  in 
1909;  Stats.  1909,  p.  912.] 

Adjustment  of  losses.     Arbitration. 

Sec.  11.  Every  mem])er  of  such  company  who  may  sustain 
loss  or  damage  by  fire  shall  immediately  notify  the  president, 
or  in  his  absence,  the  secretary  thereof,  stating  the  amount  of 
damage  or  loss  sustained  or  claimed,  and  if  not  more  than 
fifteen  hundred  dollars,  then  the  president  and  secretary  shall 
proceed  to  ascertain  the  amount  of  such  loss  or  damage  and 
adjust  the  same.  If  the  claim  for  damage  or  loss  be  for  an 
amount  greater  than  fifteen  hundred  dollars,  then  the 
president  of  such  company,  or  in  his  absence,  the  vice- 
president,  or  in  the  absence  of  both,  the  secretary  thereof, 
shall  forthwith  convene  the  board  of  directors  of  such  com- 
pany, whose  duty  it  shall  be  when  convened,  to  appoint  a 
committee,  of  not  less  than  three  disinterested  members  of 
said  company,  to  ascertain  the  amount  of  such  damage  or  loss. 
If  in  either  case  there  is  a  failure  of  the  parties  to  agree  upon 
the  amount  of  such  damage  or  loss  they  may  submit  the  ques- 
tion of  the  amount  of  such  loss  to  arbitration,  and  in  that 
event  the  president  of  the  company  shall  appoint  one  disin- 
terested person  to  act  as  an  arbitrator,  and  the  claimant  or 
insured  shall  appoint  another,  and  if  such  two  arbitrators  fail 
to  agree  upon  the  amount  of  such  loss,  then  they  shall  select 
a  third  disinterested  person  to  act  with  them,  and  such 
arbitrators  so  appointed  sliall  have  full  authority  to  examine 
witnesses  and  to  do  all  other  things  necessary  to  the  proper  de- 
termination of  the  amount  of  loss  sustained  by  the  claimant, 
and  shall  make  their  award  in  writing  to  the  president  of  the 


INSURANCE.  957 

company,  and  to  the  insured,  and  such  award  so  as  aforesaid 
made,  shall  be  final  as  to  the  amount  of  the  loss  sustained. 
The  pay  of  said  committee  shall  be  three  dollars  per  day  for 
each  day's  services  so  rendered,  and  five  cents  for  each  mile 
necessarily  traveled  in  the  discharge  of  their  duties,  which 
shall  be  paid  by  the  claimant  unless  the  award  of  such  com- 
mittee shall  exceed  the  sura  offered  by  the  company  in  liquida- 
tion of  such  loss  or  damage,  in  which  case  such  expense  shall 
be  paid  by  the  company.  [Amendment  approved  March  23, 
1907 ;  Stats.  1907,  p.  941.  Also  amended  April  15,  1909 ;  Stats. 
1909,  p.  912.] 

Assessments  for  deficiency. 

Sec.  12.  When  the  amount  of  any  loss  shall  have^  been 
ascertained,  which  exceeds  in  amount  the  cash  funds  of  the 
company,  the  president  shall  convene  the  directors  of  said 
companj^  Avho  shall  make  an  assessment  upon  all  the  property 
to  the  amount  for  Avhich  each  several  piece  of  property  is  in- 
sured, taken  in  connection  with  the  rate  of  premium  under 
which  it  may  be  classified;  provided  further  that  the  board  of 
directors  may  at  their  annual  meeting  levy  an  assessment  not 
to  exceed  twenty-five  cents  on  the  one  hundred  dollars  on 
first-class  insurance  and  a  pro  rata  amount  on  other  classes  and 
said  sum  so  raised  shall  constitute  a  reserve  fund  to  be  used 
in  emergency  cases  only  and  another  assessment  for  this  fund 
shall  not  be  made  while  this  reserve  remains  intact.  [Amend- 
ment approved  March  23,  1907;  Stats.  1907,  p.  941.] 

Notice  of  assessments. 

Sec.  13.  It  shall  be  the  duty  of  the  secretary,  whenever 
such  an  assessment  shall  have  been  made,  to  immediately  notify 
every  person  holding  a  risk  in  such  company,  personally,  by  an 
agent,  or  by  letter  directed  to  his  usual  post-office  address,  of 
the  amount  of  such  loss,  and  the  sum  due  from  him,  as  his  share 
thereof,  and  of  the  time  and  to  whom  such  payment  is  to  be 
made ;  but  such  time  shall  not  be  less  than  thirty  days,  nor 
more  than  ninety  days,  from  the  date  of  such  notice. 

Action  for  neglect  or  refusal  to  pay  assessment. 

Sec.  14.  An  action  may  be  ])rought  against  any  member  of 
such  company  who  shall  neglect  or  refuse  to  pay  any  assess- 
ment made  upon  him  by  the  provisions  of  this  act,  or  other  lia- 
bilities due  the  company,  and  the  directors  of  any  company  so 
formed  Avho  shall  Avillfully  refuse  or  neglect  to  perform  the 
duties  imposed  upon  them  by  law  or  by  the  by-laws  of  the 
company  shall  be  liable  in  their  individual  capacity  to  the 
person  sustaining  such  loss.  An  action  may  also  be  brought 
and  maintained  against  any  such  company  by  members  thereof 


958  APPENDIX. 

for  losses  sustained  if  payment  is  withheld  after  the  amount 
of  such  losses  have  been  determined,  and  is  due  by  the  terms 
of  the  policy. 

Animal  statement. 

Sec.  15.  It  shall  be  the  duty  of  the  secretary  to  prepare 
an  annual  statement,  showing  the  condition  of  such  company 
on  the  thirty-first  day  of  December,  and  present  the  same  at 
the  annual  meeting. 

Withdrawal. 

Sec.  16.  Any  member  of  such  company  may  withdraw 
therefrom  by  surrendering  his  policy  for  cancellation  at  any 
time  while  the  organization  continues  the  business  for  which 
it  was  organized,  by  giving  notice  in  writing  to  the  secretary 
thereof,  and  paying  his  share  of  all  claims  that  may  exist 
against  such  company;  provided,  that  the  company- shall  have 
power  to  cancel  or  terminate  any  policy  by  giving  the  insured 
five  days'  written  notice  to  that  effect,  and  returning  to  him 
any  excess  of  premium  he  may  have  paid  during  the  term  of 
the  policy,"  over  the  cost  of  his  insurance,  as  measured  by  the 
rates  of  standard  fire  insurance  companies  doing  business  in 
this  state. 

Report  of  oflficers. 

Sec.  17.  It  shall  be  the  duty  of  the  president  and  secretary, 
within  thirty  days  after  the  first  day  of  January  in  each  year, 
to  prepare,  under  their  own  oath,  and  transmit  to  the  insur- 
ance commissioner,  a  statement  of  the  condition  of  the  com- 
pany on  the  last  day  of  the  month  next  preceding  the  annual 
meeting.  If,  upon  examination,  the  insurance  commissioner 
finds  that  such  company  is  doing  business  correctly,  in  accord- 
ance with  the  provisions  of  this  act,  he  shall  thereupon  furnish 
the  company  his  certificate,  which  shall  be  deemed  authority 
to  continue  business  during  the  ensuing  year,  subject,  how- 
ever, to  the  provisions  of  this  act.  For  such  examination  and 
certificate  the  company  shall  pay  one  dollar.  Each  company 
shall  pay,  at  the  time  of  organization,  five  dollars  to  the  insur- 
ance commissioner,  for  all  services  which  he  shall  render  in 
the  matter  of  organization. 

Dissolution. 

Sec.  18.  Any  such  company  may  be  proceeded  against  and 
dissolved  in  the  manner  and  upon  the  same  conditions  as  pro- 
vided in  case  of  other  insurance  companies  incorporated  in 
this  state. 

Conflicting-  laws  repealed. 

Sec.  19.  All  acts  and  parts  of  acts  in  conflict  Avith  this  act 
are  hereby  repealed. 


ffl 


INSURANCE.  959 

A)i  Act  relating  to  life,  health  and  accident  insurance  of  live- 
stock on  the  assessment  plan  and  the  conduct  of  the  business 
of  such  insurance. 

[Approved  March  23,  1907;  Stats.  1907,  p.  952.] 

§    1.  Contract  of  mutual  insurance  of  animals  defined. 

§  2.  How  corporations  may  be  formed.  Investments.  Condition  pre- 
cedent to  issuing  insurance. 

§    3.  What  contracts  of  insurance  shall  specify. 

§    4.  Eeserve   fund   required. 

§    5.  Foreign   corporations,  conditions  required. 

§  6.  Limitations  of  contracts.  Applications  for  insurance.  False  state- 
ments, penalty  for. 

§    7.  Benefits  not  liable  to  attachments. 

§    8.  Annual   statement    to    be    filed. 

§    9.  When  corporation  may  have  license  revoked. 

§  10.  Assessments,  notice   of   to   be  mailed. 

§  11.  No   section    of   this  number. 

§  12.  Fees  for   filing  statements,  etc. 

§  13.  Expenses  of  insurance  commissioner,  how  paid. 

Contract  of  mutual  insurance  of  animals  defined. 

Section  1.  Every  contract  Avhereby  a  benefit  may  accrue 
to  a  party  or  parties  therein  named  upon  the  death  or  physical 
disability  of  an  animal  insured  thereunder,  or  for  the  pay- 
ment of  any  sums  of  money  dependent  in  any  dei^ree  upon  the 
collection  of  assessments  or  dues  from  owners  holding  similar 
contracts,  shall  be  deemed  a  contract  of  mutual  insurance  upon 
the  assessment  plan.  Such  contracts  must  show  that  the  lia- 
bilities of  the  insured  thereunder  are  not  limited  to  fixed 
premiums. 

How  corporations  may  be  formed.  Investments.  Condition 
precedent  to  issuing-  insurance. 

Sec.  2.  Corporations  may  be  formed  under  the  general 
laws  of  this  state  to  carry  on  the  business  of  mutual  live-stock 
insurance  upon  the  assessment  plan,  and  shall  be  subject  only 
to  the  provisions  of  this  act.  No  such  corporation  shall  issue 
contracts  of  insurance  until  at  least  two  hundred  (200)  persons 
owning  live-stock  have  applied,  in  writing,  for  membership  or 
insurance  therein,  and  have  paid  to  the  treasurer  of  such  cor- 
poration the  sum  of  five  thousand  (5000)  dollars.  This  sum 
shall  be  invested  in  bonds  or  securities,  approved  by  the  in- 
surance conniiissioner  of  this  state,  or  deposited  in  some  bank 
in  this  state  where  it  will  earn  interest.  Said  bonds  or  secur- 
ities, or  evidences  of  such  deposit,  shall  be  placed,  through  the 
insurance  commissioner  of  this  state,  with  the  state  treasurer, 
and  the  principal  sum  shall  be  held  in  trust  for  the  contract- 
holders  of  such  corporation,  with  the  right  in  the  corporation 
to  exchange  said  bonds,  securities,  or  evidence  of  bank  deposit 


960  APPENDIX. 

for  others  of  like  value.  Such  corporation  shall  also,  as  a 
condition  precedent  to  issuing  any  contracts  of  insurance, 
obtain  the  written  certificate  of  the  insurance  commissioner 
that  it  has  complied  with  the  requirements  of  this  act ;  and 
that  the  name  of  the  corporation  is  not  the  same  as  that  of 
any  other  corporation  of  this  or  other  states,  as  indicated  by 
the  insurance  department  reports  in  his  office ;  nor  shall  the 
commissioner  approve  any  name  or  title  so  closely  resembling 
another  as  to  mislead  the  public.  No  corporation  formed 
hereunder  shall  have  legal  existence  after  one  year  from  the 
date  of  its  articles,  unless  its  organization  has  been  completed, 
and  business  commenced ;  nor  shall  any  corporation  or  in- 
dividual solicit,  or  cause  to  be  solicited,  any  business,  until 
such  corporation  shall  have  complied  Avith  the  provisions  of 
section  six  hundred  and  thirty-three  of  the  Political  Code  of 
this  state. 

What  contracts  of  insurance  shall  specify. 

Sec.  3.  The  contracts  of  insurance  issued  by  such  corpora- 
tion shall  specify  the  sum  or  sums  to  be  paid  upon  the  happen- 
ing of  the  contingency  insured  against,  and  when  such  pay- 
ments will  be  made.  Unless  the  contract  shall  have  been  in- 
validated by  fraud  or  by  breach  of  its  conditions,  the  corpora- 
tion shall  be  obligated  to  pay  the  beneficiary  the  amount  or 
amounts  specified  in  its  contract  at  the  time  or  times  therein 
named,  and  such  indebtedness  shall  be  a  lien  upon  all  the  prop- 
erty of  such  corporation,  with  priority  over  all  indebtedness 
thereafter  incurred,  except  as  hereinafter  provided  in  case  of 
insolvency.  Failure  to  make  such  payment  within  thirty  days 
after  notice,  at  the  home  office,  by  mail,  as  provided  by  law, 
of  final  judgment,  unless  waiver  is  made  by  the  beneficiary, 
shall  constitute  a  forfeiture  of  the  right  to  do  business. 

Reserve  fund  required. 

Sec.  4.  Every  domestic  corporation  organized  or  doing 
business  under  this  act  shall  accumulate  a  reserve  or  emer- 
gency fund,  Avhich  shall  at  all  times  be  not  less  than  the 
largest  benefit  contracted  to  be  paid  by  it  to  any  one  person. 
Every  existing  domestic  corporation  must  accumulate  such 
fund  within  one  year  from  the  date  when  this  act  takes  effect, 
and  any  corporation  organized  hereunder  within  one  year  from 
the  date  of  its  certificate  of  incorporation.  Such  fund,  to  the 
extent  of  the  largest  amount  contracted  to  be  paid  by  any  such 
corporation  to  any  one  person,  shall  be  so  invested  and  de- 
posited, as  provided  in  section  two  hereof,  with  the  right  in 
the  corporation  to  exchange  any  such  securities  for  others  of 
equal  value.     The  deposit  required  by  section  two  of  this  act 


INSURANCE.  961 

shall  constitute  a  part  of  the  reserve  required  by  this  section, 
at  the  option  of  such  corporation.  When  any  corporation  doing 
business  hereunder  shall  discontinue  business,  this  fund  shall 
be  returned  to  such  corporation,  or  so  disposed  of  as  may  be 
determined  by  the  superior  court  of  the  county,  or  city  and 
county,  in  which  is  its  principal  place  of  business. 

Foreign  corporations,  conditions  required. 

Sec.  5.  Corporations  organized  under  the  laws  of  any  other 
state  or  country  to  transact  the  business  of  mutual  assessment 
or  live-stock  insurance,  must,  as  a  condition  precedent  to  trans- 
acting business  in  this  state,  deposit  wdth  the  insurance  com- 
missioner of  this  state  a  certified  copy  of  its  charter,  or  other 
instrument,  required  by  its  home  authorities ;  a  statement, 
under  oath,  of  its  president  or  secretary,  of  its  business  for 
the  preceding  year,  in  such  form  as  may  be  required  by  the 
insurance  commissioner  of  this  state ;  an  appointment  of  a 
general  agent,  service  upon  whom  shall  bind  the  corporation  ; 
a  certificate  that  for  the  next  preceding  twelve  months  it  has 
paid,  in  full,  the  maximum  amount  named  in  its  contracts  of 
insurance ;  a  certificate  from  the  proper  officer  of  its  state  or 
government  that  like  corporations  of  this  state  are  legally 
entitled  to  do  business  in  such  state  or  country ;  copies  of  its 
contracts  of  insurance  and  applications,  which  must  show  that 
the  liabilities  of  its  members  are  not  limited  to  fixed  premiums ; 
and  evidence,  satisfactory  to  the  insurance  commissioner,  that 
the  corporation  has  accumulated  a  fund  equal  to  that  required 
of  like  corporations  in  this  state,  constituting  a  reserve  or  sur- 
plus fund,  held  in  trust  for  the  benefit  of  its  contract-holders, 
and  so  invested  and  held  as  required  by  the  laws  of  the  state 
or  government  under  which  such  corporation  was  organized. 
The  insurance  commissioner  shall  thereupon  issue  a  license  to 
such  corporation  to  do  business  in  this  state.  This  license 
must  be  renewed  annually,  and  may  be  revoked  whenever  it 
is  ascertained  that  the  statements  required  to  be  made  by  this 
section  are  not  true.  Upon  such  revocation,  notice  thereof 
shall  be  given  by  the  insurance  commissioner,  by  publication 
in  some  newspaper  published  in  the  city  and  county  of  San 
Francisco,  for  two  weeks,  daily,  and  no  new  contracts  shall 
be  made  by  such  company  in  this  state.  "When  any  other 
state  or  country  imposes  any  additional  license,  fees,  taxes,  or 
penalties  upon  any  corporation  organized  or  doing  business 
under  this  act,  like  license,  fees,  taxes, -or  penalties  shall  be 
imposed  upon  corporations  of  the  same  kind,  and  their  agents, 
of  such  state  or  country  doing  business  in  this  state. 

Civ.  Code — 61 


962  APPENDIX. 

Limitations  of  contract.     Applications  for  insurance.     False 
statements,  penalty  for. 

Sec.  6.  No  corporation  doing  business  under  this  act  (ex- 
cept accident  or  casualty  corporations)  shall  issue  a  contract 
of  insurance  upon  the  life  of  any  animal  after  it  has  passed 
its  fifteenth  birthday.  Every  such  contract  of  insurance  shall 
be  founded  uj^on  written  application  therefor,  and  (except 
when  the  application  is  for  health,  accident,  or  casualty  insur- 
ance only,  or  for  one  hundred  dollars  life  insurance,  or  less) 
such  application  shall  be  accompanied  by  the  report  of  a 
reputable  veterinarian,  containing  a  detailed  statement  of  his 
examination  of  the  animal,  and  showing  the  animal  to  be  in 
good  health,  and  recommending  the  issuance  of  a  contract  of 
insurance.  Any  solicitor,  agent,  employee,  examining  vet- 
erinarian, or  other  person  making  a  false  or  fraudulent  state- 
ment to  any  corporation  doing  business  under  this  act,  with 
reference  to  any  application  for  insurance,  or  for  the  purpose 
of  obtaining  any  money  or  benefit  from  such  corporation,  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars  nor 
more  than  five  hundred  dollars,  or  by  imprisonment  in  the 
county  jail  for  not  less  than  thirty  days  nor  more  than  one 
year,  or  by  both  such  fine  and  imprisonment,  in  the  discretion 
of  the  court ;  and  any  person  who  shall  make  a  false  statement 
of  any  material  fact  or  thing  in  a  sworn  statement  as  to  the 
death  or  disability  of  an  animal  of  the  contract-holder  in  any 
such  corporation,  for  the  purpose  of  j)rocuring  or  aiding  the 
beneficiary  or  beneficiaries,  or  contract-holder,  in  procuring 
the  payment  of  a  benefit  named  in  the  contract,  shall  be  guilty 
of  perjury,  and  may  be  proceeded  against  and  punished  as 
provided  hy  the  statutes  of  this  state  in  relation  to  the  crime  of 
perjury. 

Benefits  not  liable  to  attachments. 

Sec.  7.  The  money,  benefit,  annuities,  endowment,  charity, 
relief,  or  aid  to  be  paid  as  provided  by  the  contracts  issued  by 
any  corporation  doing  business  under  this  act,  shall  not  be 
liable  to  attachment  or  other  process,  and  shall  not  be  seized, 
taken,  appropriated,  or  applied  by  any  legal  or  equitable 
process,  nor  by  operation  of  law,  to  pay  any  debts  or  liability 
of  the  contract-holder,  or  any  beneficiary  named  thereunder. 

Annual  statement  to  be  filed. 

Sec.  8.  Every  domestic  and  foreign  corporation  doing  busi- 
ness under  this  act,  shall,  annually,  on  or  before  the  first  day 
of  February,  file  with  the  insurance  commissioner,  in  such 
form  as  he  shall  prescribe,  a  statement  of  the  affairs  for  the 


INSURANCE.  963 

year  ending  on  the  precedinj?  thirty-first  day  of  Decemljer. 
The  insurance  commissioner,  in  person  or  by  duly  authorized 
deputy,  shall  have  the  power  of  examination  into  the  affairs 
of  any  domestic  corporation  doing  business  or  claiming  to  do 
business  under  this  act,  at  any  time,  in  his  discretion,  and 
shall  make  such  examination  at  least  once  a  year. 

When  corporation  may  have  license  revoked. 

Sec.  9.  If  the  insurance  commissioner,  after  examination 
of  the  affairs  of  a  corporation,  shall  find  that  such  corporation 
is  not  doing  its  business  in  conformity  to  this  act,  or  that  it 
is  doing  a  fraudulent  or  unlawful  business,  or  that  it  is  not 
carrying  out  its  terms  of  contract,  or  that  it  cannot  Avithin 
three  months  from  the  date  of  notice  of  default  pay  its  obliga- 
tions, he  shall  cite  the  president,  secretary,  manager,  or  gen- 
eral agent  of  said  corporation,  or  all  of  them,  to  appear  before 
him  (stating  the  time  and  place)  to  show  cause  why  the  au- 
thority of  such  corporation  to  do  business  shall  not  be  revoked ; 
and  if  they  cannot  show  cause,  then  he  shall  report  the  facts 
to  the  attorney-general  of  this  state,  avIio  shall  commence  pro- 
ceedings in  the  proper  court  to  restrain  said  corporation  from 
doing  any  further  business. 

Assessments,  notice  of  to  be  mailed. 

Sec.  10.  No  policy  or  certificate  issued  by  any  corporation 
or  association  doing  business  under  the  provisions  of  this  act 
shall  lapse  or  be  lapsed  for  the  non-payment  of  any  assess- 
ments, dues,  or  premiums,  unless  the  corporation  or  association 
has  first  mailed  to  the  insured  under  such  policy  or  certificate, 
at  his  or  her  last  given  post-office  address,  a  notice  setting 
forth  the  amount  to  be  paid,  and  the  time  the  same  is  due  and 
payable ;  and  such  notice  shall  be  mailed  at  least  fifteen  days 
before  the  assessment  is  due  (provided,  that  such  corporations 
doing  business  under  this  act  as  collect  specific  amounts  at' 
specific  dates,  as  contained  in  the  contract,  shall  not  be  com- 
pelled to  s'end  such  notices),  and  an  affidavit  made  by  the  offi- 
cer, book-keeper,  or  clerk  of  any  such  corporation  having 
charge  of  the  mailing  of  notices,  setting  forth  the  facts  as 
they  appear  on  the  records  in  the  office  of  the  said  corjDoration, 
showing  that  such  notice  was  mailed  and  the  date  of  mailing, 
shall  constitute  conclusive  evidence  of  the  mailing  of  such 
notice. 

§  11.     No  section  of  this  number. 

Fees  for  filing  statements,  etc. 

Sec.  12.  The  fees  for  filing  statements,  certificates,  or  other 
documents  required  by  this  act,  or  for  any  service  or  act  of  the 


964  APPENDIX. 

insurance  commissioner,  and  the  penalties  for  any  violation  of 
this  act,  shall,  except  as  otherwise  provided  herein,  be  the  same 
as  provided  in  the  laws  of  this  state  relating  to  life-insurance 
companies,  and  shall  be  disposed  of  as  provided  by  such  law. 

Expenses  of  insurance  commissioner,  how  paid. 

Sec.  13.  And  for  all  lawful  expenses  under  this  act,  or  by 
reason  of  any  of  its  provisions  in  the  prosecution  of  any  suit 
or  proceedings,  or  otherwise,  for  the  enforcement  of  the  pro- 
visions of  this  act,  the  insurance  commissioner  must  present 
bills  duly  certified  by  him  and  accompanied  with  vouchers,  to 
the  state  board  of  examiners,  who  must  allow  the  same,  and 
direct  payment  thereof  to  be  made ;  and  the  state  controller 
shall  draw  warrants  therefor  on  the  state  treasurer  for  the 
payment  of  the  same  to  the  insurance  commissioner,  in  addi- 
tion to  the  ordinary  contingent  expenses,  w^hich  warrant  shall 
be  payable  out  of  the  general  fund. 

Sec.  14.     This  act  shall  take  effect  immediately. 


IRRIGATION. 

Laws  relating  to:   See  General  Laws,  tit.  "Irrigation." 

LIENS. 

An  Act  giving  a  lien  to  loggers  a)id  laborers,  employed  hi  log- 
ging-camps, \ipon  the  logs  cnt  and  hauled  hy  the  persons 
who  employ  them. 

|1.  Approved  March  30,  1878;  Stats.  1877-78,  p.  747.  2.  Amended  April 
12,  1880;  Stats.  1880,  p.  38.  3.  Amended  March  8,  1887;  Stats.  1887, 
p.  53.] 

§  1.     Labor  with  logs;  lien  upon. 

§  2.     Lien  to  cease;  how  and  when. 

§  3.     Suits  to  be  commenced  in  proper  courts. 

§  4.     Plaintiff  to  have  lumber  attached. 

§  5.     Clerk  to  issue  writ. 

§  6.     Sheriff  to  attach  logs. 

§  7.     Sections    made    applicable. 

§  8.     Attachment;  how  made. 

§  9.     Where  lien   shall   extend. 

Labor  with  logs;  lien  upon. 

Section  1.  A  person  who  labors  at  cutting,  hauling,  raft- 
ing, or  driving  logs  or  lumber,  or  who  performs  any  labor  in 
or  about  a  logging-camp  necessary  for  the  getting  out  or  trans- 
portation of  logs  or  lumber,  shall  have  a  lien  thereon  for  the 
amount  due  for  his  personal  services,  which  shall  take  pre- 
cedence of  all  other  claims,  to  continue  for  thirty  days  after 


LIENS.  '     "  965 

the  logs  or  lumber  arrive  at  the  place  of  destination,  for  sale 
or  manufacture,  except  as  hereinafter  provided.  [Amend- 
ment approved  April  12,  1880;  Stats.  188a,  p.  38.] 

Lien  to  cease ;  how  and  when. 

Sec.  2.  The  lien  hereby  created  shall  cease  and  determine 
unless  the  claimant  thereof  shall,  within  twenty  days  from  the 
time  of  such  labor  shall  have  been  completed,  file  and  record 
in  the  office  of  the  county  recorder  of  the  county  where  such 
labor  was  performed  a  verified  claim,  containing  a  statement: 

First.  Of  his  demand,  after  deducting  all  just  credits  and 
offsets. 

Second.     The  time  within  which  such  labor  Avas  done. 

Third.  The  name  of  the  person  or  persons  for  Avhich  the 
same  was  done. 

Fourth.  The  place  where  the  logs  or  timber  upon  which 
such  lien  is  claimed  are  believed  to  be  situated,  and  the  marks 
upon  the  same. 

Fifth.     The  reputed  owner  thereof;  and. 

Sixth.  The  reputed  owner  of  the  land  from  which  the  same 
were  cut  and  hauled. 

Suits  to  be  commenced  in  proper  courts. 

Sec.  3.  All  liens  hereby  provided  for  shall  cease  and  deter- 
mine unless  suit  to  foreclose  the  same  shall  be  commenced 
in  the  proper  court  within  twenty-five  days  from  the  time 
the  same  are  filed.  [Amendment  approved  April  12,  1880; 
Stats.  1880,  p.  39.] 

Plaintiff  to  have  lumber  attached. 

Sec.  4.  The  plaintiff  in  any  such  suit,  at  the  time  of  issuing 
the  summons,  or  at  any  time  afterAvard,  may  have  the  logs 
or  timber  upon  which  such  lien  subsists  attached,  as  further 
security  for  the  payment  of  any  judgment  he  may  recover, 
unless  defendant  give  him  good  and  sufficient  security  to  pay 
such  judgment,  in  which  event  such  logs  shall  be  forthwith 
discharged  by  the  sheriff  from  such  attachment,  and  from  the 
lien  hereby  created. 

Clerk  to  issue  writ. 

Sec.  5.  The  clerk  of  the  court  must  issue  the  Avrit  of  at- 
tachment upon  receiving  an  affidavit  by  or  on  behalf  of  the 
plaintiff,  showing: 

First.  That  defendant  is  indebted  to  the  plaintff  upon 
a  demand  for  labor,  for  which  his  claim  has  been  duly  filed 
in  accordance  with  section  two  of  this  act. 

Second.  That  the  sum  for  which  the  attachment  is  asked  is 
an  actual  bona  fide  existing  debt,  due  and  owing  from  the 


%6  APPENDIX. 

defendant  to  the  plaintiff,  and  that  the  attachment  is  not 
sought,  and  the  action  is  not  prosecuted,  to  hinder,  delay,  or 
defraud  any  creditor  or  creditors  of  the  defendant. 

Sheriif  to  attach  logs. 

Sec.  6.  The  writ  must  be  directed  to  the  sheriff  of  the 
county,  and  must  require  him  to  attach  and  safely  keep  the 
logs  and  timber  specified  in  such  lien,  or  so  iiiuch  thereof  as 
may  be  sufficient  to  satisfy  plaintiff's  demand,  unless  the  de- 
fendant give  good  and, sufficient  security,  as  provided  in  this 
act,  in  which  case  to  take  such  security  and  discharge  any 
attachment  he  may  have  made,  and  to  deliver  up  such  logs  to 
defendant,  who  shall  receive  the  same  free  from  the  lien  upon 
which  such  suit  is  brought. 

Sections  made  applicable. 

Sec.  7.  Sections  five  hundred  and  thirty-nine,  eleven  hun- 
dred and  eighty-nine,  eleven  hundred  and  ninety-five,  eleven 
hundred  and  ninety-seven,  eleven  hundred  and  ninety-eight, 
and  eleven  hundred  and  ninety-nine  of  the  Code  of  Civil  Pro- 
cedure are  hereby  made  applicable  to  this  act.  [Amendment 
approved  March  8,  1887;  Stats.  1887,  p.  53.] 

Attachment;  how  made. 

Sec.  8.  Such  attachment  shall  be  made  by  taking  such  logs 
into  possession,  and  the  sheriff  shall  make  an  inventory  and 
return  of  his  proceedings  as  directed  in  chapter  four,  title 
seven,  of  the  Code  of  Civil  Procedure. 

Where  lien  shall  extend. 

Sec.  9.  The  lien  provided  for  by  this  act  shall  in  no  case 
extend  beyond  the  limits  of  the  county  in  which  the  logs  or 
timber  in  controversy  were  cut. 

Sec.  10.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Code  commissioner's  note.  Concerning  this  statute  the  code  com- 
missioner says  that  so  much  of  it  as  it  is  deemed  necessary  to  preserve 
is  codified  by  §  3065  of  the  Civil  Code.  See  ante,  Legislation  §  3065, 
As  there  was  no  repeal  of  this  statute,  however,  it  is  inserted  here. 


MASTER  AND  SERVANT.      MINES  AND  MINING.  &67 

MASTER  AND  SERVANT. 

An  Act  to  provide  for  a  lunch-hour  for  laborers  in  sawmills, 
shake-mills,  shingle-mills,  and  logging -camps. 

[Ai3proved  February  28,  1901;  Stats.  1901,  p.  75.] 

§1.     Lunch-hour,  for  laborers  iu  lumber  camps  and  mills. 
§  2.     Punishment  for  violating  statute. 

Lunch-hour  for  laborers  in  lumber  camps  and  mills. 

Section  1.  Every  person,  corporation,  copartnership,  or 
company  operating  a  sawmill,  shake-mill,  shingie-mill,  or  log- 
ging-camp, in  the  state  of  California,  shall  allow  to  his  or  its 
employees,  w^orkmen,  and  laborers  a  period  of  not  less  than 
one  hour  at  noon  for  the  midday  meal. 

Punishment  for  violating  statute. 

Sec.  2.  Any  person,  corporation,  copartnership,  or  com- 
pany, his  or  its  agents,  servants,  or  managers,  violating  any 
of  the  provisions  of  this  act  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  a  fine'  of  not 
more  than  two  hundred  dollars  nor  less  than  one  hundred 
dollars  for  each  violation  of  the  provisions  of  this  act. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  on  the  first 
day  of  April,  nineteen  hundred  and  one. 

MINES  AND  MINING. 

An  Act  for  the  protection  of  Miners. 

[Approved  March  16,  1872;  Stats.  1871-72,  p.  413.] 

§  1.    .Protection    of    miners. 

§  2.     Escape-shaft. 

§  3.     Liabilities.     Damages. 

Protection  of  miners. 

Section  1.  It  shall  not  be  lawful  for  any  corporation,  asso- 
ciation, owner,  or  owners  of  any  quartz-mining  claims  within 
the  state  of  California,  where  such  corporation,  association, 
owner,  or  owners  employ  twelve  men  daily,  to  sink  down  into 
such  mine  or  mines  any  perpendicular  shaft  or  incline  beyond 
a  depth  from  the  surface  of  three  hundred  feet  without  pro- 
viding a  second  mode  of  egress  from  such  mine,  by  shaft  or 
tunnel,  to  connect  with  the  main  shaft  at  a  depth  of  not  less 
than  one  hundred  feet  from  the  surface. 

Escape-shaft. 

Sec.  2.  It  shall  be  the  duty  of  each  corporation,  association, 
owner,  or  owners  of  any  quartz  mine  or  mines  in  this  stal^e, 


9'68  Appendix. 

where  it  becomes  necessary  to  Avork  such  mines  beyond  the 
depth  of  three  hundred  feet,  and  where  the  number  of  men  em- 
ployed therein  daily  shall  be  twelve  or  more,  to  proceed  to  sink 
another  shaft  or  construct  a  tunnel  so  as  to  connect  with  the 
main  working-shaft  of  such  mine  as  a  mode  of  escape  from 
underground  accident  or  otherwise.  And  all  corporations, 
associations,  owner,  or  owners  of  mines  as  aforesaid,  working 
at  a  greater  depth  than  three  hundred  feet,  not  having  any 
other  mode  of  egress  than  from  the  main  shaft,  shall  proceed 
as  herein  provided. 

Liabilities.     Damages. 

Sec.  3.  When  anj-  corporation,  association,  owner,  or 
owners  of  any  quartz  mine  in  this  state  shall  fail  to  provide 
for  the  proper  egress  as  herein  contemplated,  and  where  any 
accident  shall  occur,  or  any  miner  working  therein  shall  be 
hurt  or  injured,  and  from  such  injury  might  have  escaped  if 
the  second  mode  of  egress  had  existed,  such  corporation,  asso- 
ciation, owner,  or  owners  of  the  mine  where  the  injuries  shall 
have  occurred,  shall  be  liable  to  the  person  injured  in  all 
damages  that  may  accrue  by  reason  thereof;  and  an  action  at 
law  in  a  court  of  competent  jurisdiction  may  be  maintained 
against  the  owner  or  owners  of  such  mine,  Avhich  owners  shall 
be  jointly  or  severally  liable  for  such  damages.  And  where 
death  shall  ensue  from  injuries  received  from  any  negligence 
on  the  part  of  the  owners  thereof  by  reason  of  their  failure 
to  comply  with  any  of  the  provisions  of  this  act,  the  heirs  or 
relatives  surviving  the  deceased  may  commence  an  action  for 
the  recovery  of  such  damages  as  provided  by  an  act  entitled 
an  act  requiring  compensation  for  causing  death  by  wrongful 
act,  neglect,  or  default,  approved  April  twenty-sixth,  eighteen 
hundred  and  sixty-two. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  six  months 
from  and  after  its  passage. 

ORPHANS. 

See  ante,  tit.  "Infancy." 


I 


RAILROADS.  969 


KAILROADS. 

An  Act  to  confirm;  ratify,  and  make  valid  ordinances  heretofore 
passed  by  the  Trustees,  Council,  or  other  body  intrusted 
with  the  Government  of  any  incorporated  city,  city  and 
county,  or  town,  giving  authority  and  permission  to  propel 
cars  upon  railroad  tracks  laid  through  the  streets  and  public 
highways  of  such  incorporated  city,  city  and  county,  or 
town,  by  electricity. 

[Approved  February  2o,  1891;  Stats.  1891,  p.  12.] 

Ordinances  giving'  authority  to  propel  cars  by  electricity,  rati- 
fied.   ' 

Section  1.  In  all  cases  where,  prior  to  the  passage  of  this 
act,  authority  to  lay  railroad  tracks  through  streets  or 
public  highways  of  any  incorporated  city,  city  and  county,  or 
town,  has  been  obtained  for  a  term  of  years,  not  exceeding  fifty, 
from  the  trustees,  council,  or  other  body  to  whom  Avas  in- 
trusted the  government  of  the  city,  city  and  county,  or  town, 
and  permission  has  been  granted  by  such  governing  body  to 
propel  cars  upon  such  tracks  by  electricity,  such  authority  and 
permission  shall  be,  and  shall  be  held  and  deemed  as  valid 
and  legal  as  the  same  Avould  have  been,  if,  at  the  time  of  the 
obtaining  thereof,  section  four  hundred  and  ninety-seven  of 
the  Civil  Code  had  expressly  declared  that  permission  might 
be  given  to  propel  cars  upon  such  tracks  by  electricity,  as  well 
as  by  horses,  mules,  or  wire  ropes  running  under  the  streets 
and  propelled  by  stationary  steam-engines ;  provided,  that  all 
such  permissions  or  franchises  heretofore  granted  shall  be  sub- 
ject to  the  provisions  of  the  laws  of  this  state  applicable  to 
street-railroads  in  general,  and  subject  to  the  same  regulations 
from  city,  city  and  county,  and  town  authorities  as  if  the  said 
franchises  were  hereafter  granted. 

See.  2.     This  act  shall  take  effect  and  be  in  force  from  and 
-  after  its  passage. 

Constitutional:  People  v.  Los  Angeles  etc.  Ry.  Co.,  91  Gal.  338. 

An  Act  to  enable  railroad  companies  to  complete  their  railroads. 
[Approved   April   1,   1878;   Stats.   1877-78,  p.   944.] 

Authorizing-  construction  of  railroads. 

Section  1.  Every  railroad  company  heretofore  organized 
under  the  laws  of  this  state,  and  which  has  comph^od  a  por- 
tion of  its  road  prior  to  the  passage  of  this  act,  is  hereby  au- 
thorized and  empowered  to  complete  its  road  as  described  in 


970  APPENDIX. 

its  articles  of  incorporation,  notwithstanding  it  may  not  have 
begun  the  construction  of  its  road  within  two  years  after  filing 
its  original  articles  of  incorporation,  and  notwithstanding  it 
may  not  have  completed  and  put  in  operation  five  miles  of  its 
road  each  year  thereafter. 

Sec.  2.     This  act  shall  take  effect  from  and  after  its  passage. 

An  act  to  create  the  office  of  Commissioner  of  Transportation, 
and  to  define  its  powers  and  duties;  to  fix  the  nmximum. 
charges  for  transporting  passengers  and  freiglits  on  certain 
railroads,  and  to  prevent  extortion  and  unjust  discrimina- 
tion  thereon. 

[1.     Approved  April  1.  1878;  Stats.  1877-78,  p.  969.     2.     Repealed  March 
19,  1909;  Stats.  1909,  p.  499.] 

The  act  of  April  1,  1878  (Stats.  1877-78,  p.  969),  repealed  the 
previous  act  of  simiJar  character  of  April  3,  1876  (Stats.  1875- 
76,  p.  783). 

An  Act  to  organize  and  define  the  powers  of  the  Board  of  Rail- 
road Commissioners. 

[Approved   April    lo,    1880;    Stats.    1880,   p.    45.] 

This  act  was  repealed  by  the  act  of  March  19,  1909  (Stats.  1909. 
p.  499).  The  act  of  1909  was  repealed  by  the  act  of  Februarv  10.  1911. 
(Stats.  1911,  p.  13).  The  act  of  1911  was  in  turn  repealed  by  the  act 
of  December  23,  1911  (Stats.  1911,  p.  18,  Extra  Session).  This  last  act 
is  known  as  the  Public  Utilities  Act:  It  can  be  found  in  the  General 
Laws,  title  "Public  Utilities,"  Act  2886. 

An  Act  to  limit  and  fix  the  rates  of  fares  on  street-railroads  in 
cities  and  toivns  of  more  than  one  hundred  thousand  in- 
habitants. 

[Approved  January  1,  1878;  Stats.  1877-78,  p.  18.] 

§  1.     Kates  of  fare  of  street-railroads. 
§  2.     Violation   and  forfeiture. 

Rates  of  fare  of  street-railroads. 

Section  1.  No  street-railroad  in  any  city  or  town  of  this 
state,  with  more  than  one  hundred  thousand  inhabitants,  shall 
be  allowed  to  charge  or  collect  a  higher  rate  of  fare  than  five 
cents  for  each  passenger  per  trip  of  any  distance  in  one  direc- 
tion, either  going  or  coming,  along  any  part  of  the  whole 
length  of  the  road  or  its  connections. 

Violation  and  forfeiture. 

Sec.  2.  Every  violation  of  the  provisions  of  section  one  of 
this  act  shall  subject  the  owner  or  owners  of  the  street-railroad 


RAILROADS.  971 

violating  the  same  to  a  forfeiture  to  the  person  so  unlawfully 
charged,  or  paying  more  than  is  therein  allowed  to  be  charged, 
the  sum  of  two  hundred  and  fifty  dollars  for  each  and  every 
instance  when  such  unlawful  charge  is  made  or  collected,  to  be 
recovered  by  suit  in  any  court  of  competent  jurisdiction ;  such 
causes  of  action  sliall  be  assignable,  and  the  action  may  be 
maintained  by  the  assignee  in  his  own  name,  and  several  causes 
of  action  arising  out  of  unlawful  charges  or  collections  from 
different  persons  may  be  vested  in  the  assignee  and  united  in 
the  same  action. 

Sec.  3.     This  act  shall  be  in  force  from  its  passage. 

An  Act  to  limit  the  time  within  which  franchises  or  privileges 
for  the  construction,  extension,  or  operation  of  street-rail- 
roads may  he  granted  hy  Boards  of  Supervisors  of  the  sev- 
eral counties,  and  cities  and  counties,  of  this  state. 
[Approved  February  24,   1893;   Stats.   1893,  p.  29.] 

§  1.     Limit  of  time  within  which  franchises  may  be  granted. 
§  2.     Validity  of  franchise. 
§  3.     Conflicting  acts  repealed. 

Limit  of  time  within  which  franchise  may  be  granted. 

Section  1.  It  shall  be  unlaAvful  for  the  board  of  supervisors 
of  any  county,  or  city  and  county,  within  the  ninety  days 
next  preceding  the  date  of  holding  a  general  election,  and 
Avithin  the  seventy  days  next  immediately  following,  including 
the  day  of  holding  such  general  election,  to  authorize  or  pass 
any  ordinance,  order,  or  resolution  granting  to  any  person 
or  persons,  or  association  of  persons,  or  corporation  Avhatso-- 
ever,  any  privilege  or  franchise  for  the  construction,  exten- 
sion, or  operation  of  any  street-railroad,  or  extension  of  time 
for  the  construction  or  operation  of  any  street-railroad,  over 
or  upon  any  or  part  of  any  street,  road,  highAvay,  squares,  or 
park  within  the  county,  or  city  and  county. 

Validity  of  franchise. 

Sec.  2.  Any  franchise  or  privilege  granted,  or  attempted  to 
be  granted,  in  violation  of,  or  contrary  to,  the  provisions  of 
this  act  shall  be  absolutely  void  and  of  no  effect. 

Conflicting-  acts  repealed. 

Sec.  3.  All  acts  or  parts  of  acts  in  conflict  with  this  act 
are  hereby  repealed. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Sale  of  street-railroad  franchises.     Compare,  in  connection  with  this 
act,  the  act  of  1901,  Stats.  1901,  p.  265,  which  became  a  law,  under 


972  APPENDIX. 

constitutional  provision,  without  governor's  approval,  March  11,  1901, 
and  the  act  of  1905,  Stats.  1905,  p.  777,  amended  1909,  Stats.  1909, 
p.  125  (General  Laws,  Act  1229).  See  also  the  decision  in  Horton  v. 
City  of  Los  Angeles,  119  Cal.  602,  and  City  of  Los  Angeles  v.  Davidson, 
150   Cal.   59. 

An  act  reqmring  city,  city  and  county,  or  town  authorities  to 
exact  and  require  from  persons  or  corporations  seeking  per- 
mission and  authority  to  lay  railroad  tracks  through  streets 
or  p^iblic  highways  of  any  incorporated  city,  city  and 
county,  or  town,  a  satisfactory  promise  and  undertaking  to 
permit  and  allow  mail-carriers  in  the  employ  of  the  United 
States  government  at  all  times,  while  engaged  in  the  actual 
discharge  of  duty,  to  ride  on  the  cars  of  such  railroad  with- 
out paying  fare;  and  to  make  such  promise  and  undertaking 
a  condition  precedent  to  the  granting  of  such  permission 
and  authority  hy  such  governing  hoard. 

[Approved  February  27,  1893;  Stats.  1893,  p.  44.] 

Mail-carriers,  permitted  to  ride  free  on  railroads. 

Section  1.  In  all  cases  hereafter,  where  application  is  made 
to  the  city,  city  and  county,  or  town  authorities,  or  to  the 
trustees,  council,  or  other  body  to  whom  is  intrusted  the  govern- 
ment of  the  city,  city  and  county,  or  town,  for  permission  and 
authority  to  lay  railroad  tracks  through  streets  or  public  high- 
ways of  any  incorporated  city,  city  and  county,  or  town,  such 
authorities,  before  granting  such  permission  and  authority,  in 
addition  to  the  terms  and  restrictions  which  they  are  now,  by 
law,  authorized  to  impose,  must  exact  and  require  from  the 
persons  or  corporation  asking  or  seeking  such  permission  and 
authority,  a  satisfactory  promise  and  undertaking  to  permit 
and  allow  mail-carriers  in  the  employ  of  the  United  States 
government,  at  all  times,  while  engaged  in  the  actual  dis- 
charge of  duty,  to  ride  on  the  cars  of  such  railroad  without 
paying  any  sum  of  money  whatever  for  fare  or  otherwise. 
And  such  governing  body  of  city,  city  and  county,  or  town 
authorities  must  make  such  promise  and  undertaking  on  the 
part  of  such  persons  or  corporations  a  condition  precedent  to 
the  granting  of  such  permission  and  authority  to  lay  railroad 
tracks  through  streets  or  public  highways  of  such  city,  city 
and  county,  or  town ;  provided,  that  all  such  permissions  and 
franchises  shall  be  subject  to  all  other  provisions  of  the  laws 
of  this  state  applicable  to  street-railroads  in  general,  and  sub- 
ject to  regulations  from  city,  city  and  county,  and  town  au- 
thorities. 

Sec.  2.  This  act  shall  take  effect  and  be  in  full  force  from 
and  after  its  passage. 


INDEX. 

(973) 


I 


INDEX. 

A 

ABANDONMENT. 

Abandoned  property,  statute  relating  to  lost  property  does  not  ap- 
ply to,  §  1872. 
Child  abandoned,  adoption  of,  §  224. 
Child,  of.     See  Adoption. 
Child,  by  father,  custody  on,  §  197. 
Child,  of,  what  deemed  to  be,  §  224. 

Child,  parent  presumed  to  relinquish  services  and  custody  on,  §  211. 
Child,  parent  loses  right  to  guardianship  on,  §  246. 
Fire  patrol,  acts  of,  do  not  justify  abandonment  of  building,  §  453a. 
Homestead,  abandoned  how,  §§  1243,  1244. 
Husband,  of,  by  wife,  support,  §  175. 

Marine  insurance,  in,  §§  2716-2732.     See  Insurance,  XV. 
Notice  of,  not  necessary  on  actual  total  loss,  §  2709. 
Parent,  by  child,  parent  not  liable  for  support,  §  208. 
Ship-master's  authority  terminated  by,  §  2381. 
Ship,  of,  by  master,  power  of,  §  2040. 

Ship,  of,  duty  of  master  to  save  money  and  valuables,  §  2041. 
Ship,  of,  liability  of  master  where  articles  lost,  §  2041. 
Thing  alDandoued  voluntarily,  code  provisions  do  not  apply  to,  §  1872. 
Water,  of  appropriation  of,  §  1411. 

ABATEMENT. 

Legacies,  of,  §  1362. 

Nuisance,  of,  §§  3484-3503.     See  Nuisance. 

ABDUCTION. 

In  general,  §  49. 

Of  persons  in  certain  relations  forbidden,  §  49. 

ABSOLUTE  OWNERSHIP.     Ownership,  when  absolute,  §  679. 

ACCEPTANCE.     See  Contracts,  III;  Negotiable  Instruments. 
Accord,  of,  §  1523. 

Benefit  of  transaction,  of,  effect  of,  §§  1589,  3521. 
Of  guaranty,  notice  when  necessary,  §  2795. 
Of  principal,  waives  interest,  when,  §  3290. 
Of  rent,  renews  lease,  when,  §  1945. 
Partial  performance,  of,  §  1741. 

ACCESSION. 

Freightage  not  chargeable  on  natural  increase  of  freight,  §  2139. 

Income  of  property  includes  what,  §  748. 

Income  undisposed  of,  to  whom  belongs,  §  733. 

Increase  of  things  belongs  to  hirer,  §  1926. 

Loaned  projjerty,  increase  of  belongs  to  lender,  §  1885. 

Loan  for  exchange,  increase  belongs  to  whom,  §  1904. 

Owner,  products  and  accessions  belong  to,  §  732. 

Personalty,  to,  by  uniting  several  different  things,  rights  of  owners, 

§§  1025,  1030. 
Personalty,  to,  damages  for  wrongfully  using  materials  of  another, 

§  1033. 
Personalty,  to,  increase  of  thing  pledged,  §  2989. 

(975) 


976  INDEX. 

ACCESSION.      (Continued.) 

Personalty,  to,  inseparable  materials,  rights  on,  §  1029. 

Personalty,  to,  materials  of  several  owners,  rights  on,  §§  1025,  103U. 

Personalty,  to,  owner  may  elect  b^^tween  thing  and  its  value,  §  1032. 

Personalty,  to,  principal  part  is  what,  §§  1026,  1027. 

Personalty,  to,  principal  part,  removal  of,  §  1026. 

Personalty,  to,  product  of  things  acquired  by  trespass,  title  to,  §  1031. 

Personalty,  to,  uniting  materials  and  workmanship,  rights  on,  §  1028. 

Pledge,  increase  of,  is  covered  by,  §  2989. 

Products  of  thing  belong  to  hirer,  §  1926. 

Property  may  be  acquired  by,  §  1000. 

Eealty,  to,  alluvion,  rights  in,  §  1014. 

Realty,  to,  avulsion,  land  may  be  reclaimed  within  a  year,  §  1015. 

Eealty,  to,  avulsion,  rights  on,  §  1015. 

Realty,  to,  fixtures  when  belong  to  owner  of  land,  §  1013. 

Realty,  to,  fixtures,  what  removable  by  tenant,  §  1019. 

Realty,  to,  island  formed  by   division   of  stream,  §  1918. 

Realty,  to,  island  in  navigable  stream,  §  1016. 

Realty,  to,  island  in  unnavigable  stream,  §  1017. 

Realty,  to,  islands,  §§  1016-1018. 

Realty,  to,  sudden  removal   of   bank,  rights   of   owner,  §  1015. 

Trustee  mingling  trust  property,  liability  of,  §  2236. 

ACCESSORY. 

Lien  is,  §  2909. 

Transfer  of  incident  does  not  transfer  principal,  §  1084. 

Transfer  of  principal  thing  passes,  §§  1084,  1104,  3540. 

ACCIDENT.     See  Mistake. 

Contract  not  expressing  intent  because  of,  intent  governs,  §  1640. 
Deposit  by,  to  be  accepted,  §  1816. 
Trust  arises  from,  when,  §  2224. 

ACCIDENT  INSURANCE.     See  Insurance;   Mutual  Life,  Health,   Aeei- 
dcut  and  Annuity  Insurance  on  Assessment  Plan. 
Notice  of  injury,  provision  limiting  time  for,  when  void,  §  2633a. 
Notice  of  injury,  when  may  be  given,  §  2633a. 

ACCORD  AND  SATISFACTION, 

Acceptance    of    consideration   of   an   accord   extinguishes   obligation, 

§  1523. 
Accord  defined,  §  1521. 
Accord,  effect  of,  §  1522. 
Satisfaction  defined,  §  1523. 
Satisfaction,  part    performance    in,    extinguishes    obligation,    when, 

§  1524. 

ACCOUNT. 

Assignee  for  creditors  mav  be  required  to,  §  3469. 

Employee's  duty  to,  §§  1986,  2014. 

Interest  on,  time  from  which  runs,  §  1917. 

Master  of  ship,  accounting  by,  where  he  trades  on  his  own  account, 

§  2042. 
Of  voluntary  interferer  with  property,  §  2078. 
Partner  must,  for  profits  of  adverse  business,  §  2438. 
Partner's  mutual  liability  to,  §  2412. 
Servant,  by,  §§  1986,  2014. 
Trustee,  requiring  to,  §  2237. 

ACCRETION.     See  Accession. 


INDEX.  977 

ACCUMULATIONS. 

Directions  for  longer  term  than  minority,  effect  of,  §  725. 

Directions  for,  to  be  for  benefit  of  minors  in  being,  §  724. 

Directions  for,  void  unless  allowed  by  code,  §  723. 

Directions  for,  what  allowed,  §§  724,  725. 

Directions  for,  when  void  in  part,  §  725. 

Express  trust  to  accumulate  rents  and  profits  may  be  created,  §  857. 

Income,  dispositions  of,  code  provisions  governing,  §  722. 

Income  when  directed  to  support  of  minor,  §  726. 

Time  of  commencement  of,  and  termination  of,  §  724. 

Undisposed  income,  to  whom  belongs,  §  733. 

Void  provision  in  direction  for,  effect  of,  §  725. 

ACKNOWIiEDGMENTS.     See  Eecording. 

Act  curing  defects  in,  §  1207.     Appendix,  tit.  "Acknowledgments." 

Action  to  cure  defective,  §  1202. 

Action  to  obtain  judgment  proving  instrument,  §  1203. 

Afiiant  to  be  known  to  officer,  §  1185. 

Apprenticeship  contract,  §  275. 

Articles  of  incorporation,  of,  §  292. 

Articles  of  incorporation  of  consolidated  corporations,  of,  §  605. 

Articles  of  incorporation  of  non-profit  co-operative,  agricultural,  viti- 

cultural  and  horticultural  association,  §  653o. 
Articles  of  incorporation  of  non-profit  co-operative  association,  §  653v. 
Assignment  for  creditors,  §§  3458,  3459. 
Attorney  in  fact,  form  of  acknowledgment  by,  §  1192. 
Authenticated,  how,  §  1193. 
Authenticated,  to  be  by  officer  taking,  §  1193. 
Certificate  of  clerk  to  foreign  acknowledgment,  effect  of,  §  1189. 
Certificate  of,  defective,  action  to  correct,  §  1202. 
Certificate  of,  form  of,  §  1189. 
Certificate  to  be  indorsed  on,  §1188. 
Chattel  mortgage,  of,  §§  2957,  2963. 
Code  does  not  affect  instruments  made  and  recorded  before,  §§  1205, 

1206. 
Contempt,  officer  taking,  may  punish  for,  §  1201. 
Corporation,  acknowledgment   of   instrument  executed   by,  §  1161. 
Corporation,  form  of  acknowledgment  by,  §  1190. 
Corporation,  prerequisites  to  taking,  §  1185. 
Correcting  defective  certificate  of,  action  for,  §  1202. 
Correction  of,  acts  legalizing  defective  acknowledgments.     Appendix, 

tit.  "Acknowledgments." 
Declaration  of  marriage,  §§  77,  79^/2. 

Defective,  act  curing,  §  1207.     Appendix,  tit.  "Acknowledgments." 
Defective,  action  to  correct,  §  1202. 
Deputy  may  take,  §  1184. 

Foreign,  certificate  of  clerk  to,  effect  of,  §  1189. 
Foreign,  form  of,  §  1189. 
Foreign,  who  may  take,  §§  1182,  1183. 
Form  of  acknowledgment  by  corporation,  §  1190. 
Form  of  acknowledgment  by  married  women,  §§  1093,  1187. 
Form  of  certificate  of,  by  attorney  in  fact,  §  1192. 
Form  of,  foreign,  §  1189. 
Form  of,  general,  §  1189. 

Homestead,  of  conveyance  or  encumbrance  of,  §  1242. 
Homestead,  of  declaration  of  abandonment,  §§  1243,  1244. 
Homestead,  of  selection,  §§  1262,  1266. 
Illegitimate  child,  acknowledgment  of,  §§  230,  1387. 
Civ.  Code — 02 


978  INDEX. 

ACKNOWLEDGMENTS.     (Continued.) 

Indorsement  of  certificate  on,  §  1188. 

Inventory  of  wife's  property,  of,  §  165. 

Instrument  recorded  without,  validating,  §  1207. 

Justice  of  peace,  certificate,  what  to  show  when  used  out  of  county, 
§  1194. 

Marriage,  declaration  of,  §  77. 

Marriage  settlement,  how  made,  §  178. 

Marriage  settlement,  necessity  of,  §  178. 

Marrietl  woman's  conveyance,  how  made,  §§  1093,  1187. 

Married  woman's  power  of  attorney,  how  made,  §  1094. 

Married  woman's,  defective,  act  curing,  §  1207. 

Mortgages,  acknowledgment  of,  §  2952. 

Oath,  officer  taking,  may  administer,  §  1201. 

Officers  taking,  have  what  authority,  §  1201. 

Officers,  what,  may  take  in  state,  §§  1180,  1181. 

Officers,  what,  may  take  outside  state,  §  1182. 

Officers,  what,  may  take  outside  United  States,  §  1183. 

Partnership,  certificate  where  doing  business  under  fictitious  name 
to  be  acknowledged,  §  2468.  r 

Partnership,  special,  certificate  of,  acknowledgment  of,  §  2480. 

Power  of  attorney  and  revocation  thereof,  §  1216. 

Power  of  attorney  to  execute  mortgage,  of,  §  2933. 

Prerequisites  to  taking,  §  1185. 

Proof  of  execution  of  instruments  not  acknowledged,  §  1195. 

Proof  of  instrument,  action  for,  who  may  maintain,  §  1203. 

Proof  of  instrument,  action  to  obtain,  effect  of  judgment  in,  §  1204. 

Proof  of  instrument,  certificate,   defective,  action  to  correct,  §  1202. 

Proof  of  instrument,  certificate   of   officer,  what   to   state,  §  1200. 

Proof  of  instrument,  handwriting,  by,  what  to  be  shown,  §  1199. 

Proof  of  instrument,  handwriting,  how  proved  by,  §  1199. 

Proof  of  instrument,  handwriting,   may  be  proved  by,  when,  §  1198. 

Proof  of  instrument,  instruments  made  before  code,  prior  law  gov- 
erns, §§  1205,  1206. 

Proof  of  instrument,  officer  taking,  authority  of,  §  1201. 

Proof  of  instrument,  witness,  identity  of,  proof  of  where  not  known, 
§  1196. 

Proof  of  instrument,  witness  must  prove  what,  §  1197. 

Proof  of  instrument,  witness  to  be  personally  known  to  officer,  §  1196. 

Eecorded  without,  what  instruments  cannot  be,  §  1161. 

Recorded  without,  what  instruments  may  be,  §§  1159,  1160,  1163. 

Requisites  for,  §  1185. 

Seals,  when  officers  must  affix,  §  1193. 

Signatures,  officers  must  affix,  §  1193. 

Subpoenas,  officer  taking   acknowledgments,   may   issue,  §  1201. 

What  law  governs  where  executed  before  code,  §§  1205,  1206. 

Where  to  be  made,  §§  1180,  1181. 

Who  may  take,  §§  1180-1184. 

Who  may  take  in  state,  |§  1180,  1181. 

Who  may  take  without  the  state,  §  1182. 

Who  may  take  without  the  United  States,  §  11S3. 

Wine,  of  sale  of,  §  3440. 

ACQUIESCENCE. 

Removes  objections,  §  3516. 

ACTIONS.     See  subject  in  question. 

Action  lies  to  obtain  judgment  proving  instrument,  §  1203. 
Infants,  right  of  to  maintain,  §  42. 


INDEX.  979 

ACTIONS.     (Continued.) 

Limitation  of.     See  Limitation  of  Actions. 

Pending,  not  affected  by  code,  §  6. 

Repeal  by  code,  existing  actions  not  affected,  §  20. 

ACTS  OF  GOD. 

Carrier  liable  for  if  negligent,  §  2195. 
Carrier's  liability  relieved  by,  §  2194. 
Excuses  operation  of  road,  §  468. 
Performance  of  obligation  excused  by,  §  1511. 

ADEMPTION. 

Advancement  or  gift,  when  only  an,  §  1351. 

ADJOINING  OWNERS.     See  Coterminous  Owners;  Lateral  Support. 
Easement  of  lateral  support,  §  801. 

ADJOURNMENT. 

Corporate  election,  §  314. 
Corporate  meeting,  §  312. 

ADMINISTRATORS.     See  Executors  and  Administrators. 

ADMIRALTY.     See  Shipping. 

ADOPTION. 

Abandoned,  child  may  be  determined  to  be,  by  order  of  juvenile  court, 

§224. 
Abandoned  child,  who  is,  §  224. 
Abandonment  of  child,  what  deemed  to  be,  §  224. 
Adopting  parent  to  be  ten  years  -older,  §  222.- 
Any  minor  child  may  be  adopted,  §  221. 
Consent,  abandonment  of  child,  not  necessary  on,  §  224. 
Consent,  abandonment  of  child,  what  deemed  fo  be,  §  224. 
Consent,  necessity  of,  §  224. 

Consent,  managers  of  orphan  asylum  may  give,  when,  §  224. 
Consent  of  child  over  twelve  necessary,  §  225. 
Consent  of  district  attorney  in  case  of  abandoned  child,  §  224. 
Consent  of  husband  or  wife,  §  223. 
Consent  of  mother  of  illegitimate,  §  224. 
Consent  of  non-residents,  §§  224,  226. 
Consent  of  parents,  necessity  of,  §  224. 
Consent  of  parents,  when  not  required,  §  224. 
Consent,  signing  of,  §  226. 
Contract  of,  how  entered  into,  §§  226,  227. 
District  attorney,  consent  of,  where  child  abandoned,  §  224. 
Effect  of,  rights  and  duties  of  parties,  §§  228,  229. 
Effect  on  parents  of  child,  §  229. 
Filing  of  papers  and  proceedings,  §  227. 
Dlegitimate  child,  adoption  of,  §§  230,  234. 
In  general,  §  221. 

Manager  of  orphans'  home  may  consent,  when,  §  224. 
Married  man,  consent  of  wife  necessary  to  adoption  by,  §  223. 
Married  woman,  consent  of  husband  necessary  to  adoption  by,  §  223. 
Name,  family,  adopted  child  may  take,  §  228. 
Non-resident,  consent  of,  §§  224,  226. 

One  spouse  cannot  adopt  without  consent  of  other,  §  223. 
Order  of,  §  227. 
Orphan  asylum,  from,  §  224. 
Petition  for,  §  226. 


980  INDEX. 

ADOPTION.      (Continued.) 

Proceedings  on,  §§  226,  227. 
Eecord  of  proceedings,  §  227. 
Who  may  adopt,  §§  221,  222. 
Who  may  be  adopted,  §§  221,  222. 

ADULT. 

Who  is  an,  §  27. 

Compensation  for  support  of  adult  child,  §  210. 

ADULTERY.     See  Divorce. 
Defined,  §  93. 
Divorce,  as  ground  for,  §  92. 

ADVANCEMENT. 

Child,  to,  effect  of,  §  1309. 

Death  of  heir  advanced  to  before  decedent,  §  1399. 

Effect  of  on  distributive  shares,  §§  1395,  1399. 

Less  or  greater  than  share,  effect  of,  §  1396. 

Must  be  taken  toward  share  in  intestate's  property,  §  1395. 

Valuation  of  by  decedent  binding,  §  1398. 

Value  of,  determined  how,  §  1398. 

What  is,  §  1398. 

When  only  deemed  ademption,  §  1351. 

When  too  much  or  too  little,  effect  of,  §  1396. 

ADVERSE  POSSESSION. 

Confers  title,  §  1007. 

Effect  of,  in  general,  §  1007. 

Occupancy  for  time  prescribed  by  statute,  rights  on,  §§  1006,  1007. 

Owner  of  property  in  adverse  possession  of  another  may  transfer  it, 

§ 10i7. 
Property  adversely  held  may  be  mortgaged,  §  2921. 

ADVERTISEMENTS. 

Bonds,  advertising  that  they  are  legal  investments  for  savings  banks. 
Appendix,  tit.  "Banking,"  §  61. 

AFFIDAVIT. 

As  to  sums  contributed  by  special  partners,  §  2481. 

Assignment  for  creditors,  truth  of  inventory,  §  3462. 

Corporation,  on  filing  articles,  §  295. 

Mining  claim,  of  annual  work  on,  §§  1426m,  1426n. 

Mining  claims,  showing  work  or  posting  of  notices  on  may  be  re- 
corded, §  1159. 

Partnership,  fictitious  name,  affidavit  of  publication,  §  2471. 

Partnership,  special,  as  to  sums  contributed  by  partners,  §  2481. 

Partnership,  special,  of  publication  of  certificate,  §  2484. 

Publication  of  notice  of  assessment,  affidavits  of,  §  348. 

Stock,  of  publication  of  notice  for  sale  of  delinquent,  §  348. 

Subscription  to  stock,  and  payment  of  ten  per  cent,  affidavit  as  to, 
§295. 

Transfer  of  stock  by  non-resident,  affidavit  on,  §  326. 

Trust  companies,  by,  how  taken.     Appendix,  tit.  "Banking,"  §  90. 

AFFILIATION.     See  Bastards. 

Alaintenance  of  illegitimate  child  by  father,  §  196a. 

AFFIRMATIONS. 

Oath  includes  affirmation,  §  14. 

Officer  authorized  to  take  proof  of  instrument  may  administer,  §  1201. 

Testify  includes,  §  14. 


INDEX.  981 

AFTER-ACQUIRED  PROPERTY. 

Passes  b}'  will.  §  1312. 

AFTER-ACQUIRED  TITLE. 

Conveyance  passe?,  §  1106. 
Inures  to  mortgagee,  §  2930. 

AGE. 

Majority,  age  of.     See  Majority. 

AGENCY. 

Acknowledgment  by  attorney  in  fact,  form  of,  §  11 92. 

Acts  of  agent,  liability  of  principal  for,  §§  2338,  2339. 

Acts  that  may  be  done  througli  agent,  §§  2304,  230.5. 

Actual  authority,  agent  not  to  exceed,  §  2019. 

Actual  authority  defined,  §  2316. 

Actual  authority,  extent  of,  §§  231.5,  2318,  2319. 

Actual  authority  of  factor,  §  2368. 

Actual  authority,  what,  §  2316. 

Actual,  defined,'§  2299. 

Actual  or  ostensible,  agency  is,  §  2298. 

Agent,  anyone  may  appoint,  having  capacity  to  contract,  §  2296. 

Agent,  collecting,  duty  of,  §  2021. 

Agent,  defined,  §  2295. 

Agent,  general,  defined,  §  2297. 

Agent  must  keep  principal  informed,  §  2020. 

Agent  not  having  authority  to  contract,  liability,  §  2343. 

Agent  not  to  act  in  own  name,  §  2322. 

Agent,  obligations  of,  code  sections  applying  to,  §  2345. 

Agent,  rights  of  person  dealing  with,  without  knowledge  of  agency, 

§  2336. 
Agent's  liability  to  third  persons,  §  2343. 

Agent's  obligation   to   surrender  property  to  third  person,  §  2344. 
Agent,  special,  defined,  §  2297. 
Agent  to  conform  to  authority,  §  2019. 
Agent  warrants  his  authority,  §  2342. 
Agent,  who  may  be,  g  2296. 

All  rights  and  liabilities  accruing  to  agent  accrue  to  principal,  §  2331. 
Attorney  in  fact,  conveyances  by,  how  executed,  §  1095. 
Auctioneers.     See  Auctions. 

Authority,  acts  within  actual  or  ostensible  bind,  §  2330. 
Authority,  actual,  must  not  be   exceeded,  §  2019. 
Authority,  actual.     See  ante,  this  subject. 
Authority,   agent    can    do   no    act   which   trustee   is   forbidden   to   do, 

§  2322. 
Authority,  agent  cannot  act  in  his  own  name,  §  2322, 
Authority,  agent  cannot  define    scope    of,  §§  2319,  2322. 
Authority,  agent  cannot   have,  to   defraud  principal,  §  2306. 
Authority,  agent  cannot     make  representations  as  to,  §§  2319,  2322. 
Authority,  agent  has  such  as  aa*ually  or  ostensibly  conferred,  §  2315. 
Authority,  agent  represents   principal   for  all   acts   within   scope   of, 

§  2330. 
Authorit}',  agent's  necessary,  §  2319. 
Authority,  agent  warrants  his,  §  2342. 

Authority,  as  to  persons  with  notice  of  restrictions  on,  §  2318. 
Authority,  consideration  unnecessary  to  creation  of,  §  2308. 
Authority,  construction  of,  when  partly  general  and  partly  specific, 

§  2321. 
Authority  construed  by  its  specific  terms,  not  by  general,  §  2321, 


982  "  -  INDEX. 

AGENCY.      (Continued.) 

Authority,  damages  for  breach  of  warranty  of,  §  3318. 

Authority,  excess  of,  acts  in  whether  bind,  §  2333. 

Authority,  extent  of,  §§  2315,  2318,  2319,  2320,  2330. 

Authority,  general,   controlled  by  specific,  §  2321. 

Authority,  general,  does  not  authorize  what  acts,  §  2322. 

Authority,  how  may  be  conferred,  §§  2307,  2309. 

Authority,  implied,  has  to  do  what  acts,  §  2319. 

Authority,  incomplete  execution  of,  binds  principal,  when,  §  2331. 

Authority,  instructions,   authority  to   disobey,  §  2320. 

Authority,  instrument  intended  to  bind  principal  does  bind  him, 
when,  §  2337. 

Authority,  joint,  majority  may  exercise,  §  12. 

Authority,  measure  of,  §§  231o,  2318,  2319,  2320,  2330. 

Authority,  necessary,  agent  has  to  do  what  acts,  §  2319. 

Authority,  necessary,  agent  has  to  make  what  representations,  §  2319. 

Authority,  oral  authorization,  sufficiency  of,  §  2309. 

Authority,  ostensible.     See  post,  this  subject. 

Authority,  representations,  power  to  make,  §  2319. 

Authority,  scope  of  his  agency,  cannot  define,  §§  2319,  2322. 

Authority,  specific  controls  general,  §  2321. 

Authority,  subagent.     See  post,  Subagent,  this  title. 

Authority,  termination  where  power  coupled  with  interest,  §  2356. 

Authority  that  may  be  delegated  to  agent,  §§  2304,  2305. 

Authority  to  buy   or  sell  realty  to  be  written,  §  1624. 

Authority  to  disobey  instructions,  §  2320. 

Authority  to  lease,  to  be  written  when,  §  1624. 

Authority  to  receive  price,  §§  2325,  2326. 

Authority  to  sell  includes  authority  to  covenant,  §§  2323,  2324. 

Authority  to  sell  includes  authority  to  warrant,  §§  2323,  2324. 

Authority  to  sell,  power  to  receive  price  under,  §§  2325,  2326. 

Authority,  warrant  of,  by  agent,  §  2342. 

Authority,  warrant  of,  by  agent,  damages  for  breach  of,  §  3318. 

Authority,  what  may  be  conferred  on  agent,  §  2304. 

Authority,  what  terminates,  §§  2355,  2356. 

Authority,  when  to  be  conferred  in  writing,  §  2309. 

Authority,  whether   principal   bound  when   agent  exceeds,  §  2333. 

Code   provisions   governing,   subject   to   what   limitations,  §  2345. 

Collecting  agent's  duty  in  collecting  bill  or  note,  §  2021. 

Consideration  unnecessary  in  creation  of,  §  2308. 

Covenants,  agents  may  give,  §  2324. 

Created  by  ratification,  §  2307. 

Created,  may  be  by  precedent  authorization  or  subsequent  ratifica- 
tion, §  2307. 

Credit,  agent's  liability  respecting,  §  2343. 

Credit,  effect  of  payment  on  giving  exclusive,  to  agent,  §  2335. 

Damages  for  breach  of  warranty  of  agent's  authority,  §  3318. 

Death  of  agent  terminates,  §  2355. 

Death  of  principal  effect  of  -where  agency  coupled  with  interest, 
§  2356. 

Death  of  principal  terminates,  generally,  §  2356. 

Defined,  §  2295. 

Delegate  powers,  when  agent  may,  §  2349. 

Delegation  of,  §§  2349-2351. 

Delegation,  subagent  rightfully  appointed,  original  agent  not  liable 
for  acts  of,  §  2351. 

Delegation,  subagent  rightfully  appointed  represents  principal,  §  2351. 

Delegation,  unlawful  employment  of  subagent.  effect  of,  §  2350. 


INDEX.  983 

AGENCY.      (Continued.) 

Delivery  of  contraet  to  agent,  §  1626. 

Employee,  power  of  attorney  to  collect  wages  revocable  at  any  time, 

§  955. 
Expiration  of  term  terminates,  §  2355. 
Extinction  of  subject  of,  terminates,  §  2355. 
^       Factors.     See  Factors. 

Fraud,  agent  no  authority  to  defraud  principal,  §  2306. 

General  agent  defined,  §  2297. 

General  agent  to  sell,  authority  to  receive  price,  §  2325. 

General  authority,  does  not  include  what  acts,  §  2322. 

General  authority,  exceptions  to,  §  2322. 

Incapacity  of  parties  terminates,  §§  2355,  2356. 

Indemnity,  agreement  of,  covers  acts  of  agent,  §  2775. 

Infant  cannot  give  delegation  of  power,  §  33. 

Instructions,  agent's  power  to  disobey,  §  2320. 

Instrument,  how  executed  by  attorney  in  fact,  §  1095. 

Instrument  intended  to  bind  principal  does  bind  him  when,  §  2337. 

Insurance  by  agent,  form  of  policy,  §  2589. 

Keeping  principal  informed,  duty  as  to,  §  2020. 

Liability    of    principal    for    negligent    acts    or    omissions    of    agent, 

§§  2338,  2339. 
Manager  of  ship  general  agent  for  owners,  §  2070. 
Married  woman's  power  of  attorney,  effect  of,  §  1094. 
Measure  of  agent's  authority,  §§  2315,  2318,  2319,  2320,  2330. 
Minor  cannot  delegate  power,  §  33. 

Mortgage,  power  of  attorney  to  execute,  how  executed,  §  2933. 
Negligence  of  agent,  liability  of  principal,  §§  2338,  2339. 
Negotiable  instrument,  agent  to  collect,  duty  of,  §  2021. 
Negotiable  instrument,  presentment  of  to  agent,  §  3131. 
Notice  of  agency,  rights  of  one  dealing  with  agent  without,  §  2336. 
Notice  of  dishonor  by  agent,  how  given,  §  3149. 
Notice  to  agent,  when  notice  to  principal,  §  2332. 
Notice  to  principal,  agent  has  notice  of,  §  2332. 
Omissions  by  agent,  principal  liable  for,  §§  2338,  2839. 
Oral  authorization,  sufficiency  of,  §  2309. 
Ostensible,  agency,  when  is,  §  2300. 

Ostensible  authority  as  to  persons  having  notice,  §  2318. 
Ostensible  authority  defined,  §  2317. 
Ostensible  authority,  extent  of,  §  2318. 
Ostensible  authority  of  agent,  §  2315. 
,      Ostensible  authority   of  factor,  §  2369. 

Ostensible  authority,  principal   liable   to  what  persons  only  for   act 

under,  when,  §  2334. 
Ostensible,  defined,  §  2300. 
Ostensible  or  actual,  agency  is,  §  2298. 
Partner  liable  as  agent,  §  2443. 
Partners'  liability  for  each  other,  §  2429. 
Payment  to  agent,  when  exonerates,  §  2335. 

Power  coupled  with  interest,  effect  of  death  of  principal,  §  2356. 
Power  of  attorney.     See  Power  of  Attorney. 
Power  of  attorney,  how  only  revoked  where  recorded,  §  1216. 
Power  of  attorney  to  collect  wages  revocable  at  any  time,  §  955. 
Power  of  attorney  to  gratuitous  employee,  duties  of,  under,  §  1977. 
Powers.     See  Powers. 

Price,  authority  to  receive,  §§  2325,  2326. 

Principal  bound  by  instrument  intended  to  bind  him,  §  2337. 
Principal,  how  affected  by  agent's  acts  within  his  authority,  §  2330, 


984  INDEX. 

AGENCY.      (Continued.) 

Principal,  when  bound  by  incomplete  execution  of  authority,  §  2331. 
Principal,  whether  bound  when  agent  exceeds  authority,  §  2333. 
Principal,  who  ma}*  be,  §  2296. 

Proof  of,  in  action  against  railroad  for  penalty,  §  506. 
Eatification,  accepting  or  retaining  benefit  of  act,  §  2310. 
Ratification,  creation  of,  by,  §  2307. 
Ratification  not  to  injure  third  persons,  §  2313. 
Ratification  of  agent's  act,  how  only  may  be  made,  §  2310. 
Ratification  of  part  of  indivisible  transaction,  effect  of,  §  2311. 
Ratification,  rescission  of,  when  without  consent,  §  2314. 
Ratification  rescission  of,  when  without  knowledge,  §  2314. 
Ratification    void    unless   principal    had   power   to   confer   authority, 

§  2312. 
Real  estate  agent  may  give  covenants,  §  2324. 
Real  estate   broker,   emplovment   must   be   written  under  statute   of 

frauds,  §  1624. 
Renunciation  of  agency,  terminates,  §  2355. 
Representations,  power  of  agent  to  make,  §  2319. 
Rescission  of  ratification,  §  2314. 
Revocation  by  principal  terminates,  §  2356. 
Revocation,  power  of  attorney  to  collect  wages  revocable  at  any  time, 

§  955. 
Revocation  of  power  of  attornev,  manner  of,  where  power  recorded, 

§  1216. 
Rights  of  person  dealing  with  agent  without  notice  of  agency,  §  2336. 
Scope  of,  agent  not  to  define,  §§  2319,  2322. 
Set-off.  right  of,  of  one  dealing  with  agent  without  notice  of  agency, 

§  2336. 
Ship-master  as  agent,  §§  2373-23S5.     See  Shipping. 
Ship-master's  authority,  as  agent,  §  2044. 
Ship's  manager  as  agent,  §§  2388,  2389. 
Signature  by  attorney  in  fact,  how  made,  §  1095. 
Special  agent  to  sell,  authority  to  receive  price,  §  2326. 
Special  agent  defined,  §  2297. 
Special  or  general,  agents  are,  §  2297. 

Statute  of  frauds,  effect  of  on  contract  of  agency,  §§  1624,  2309. 
Subagent,  delegation  of  powers  to,  right  of,  §  2349. 
Subagent,  effect  of  unauthorized  appointment  of,  §  2350. 
Subagent,  liability   of,  §  2022. 

Subagent,  liability  of  original  principal  for  acts  of,  §  2354. 
Subagent,  notice  of  dishonor,  how  given  by,  §  3149.  , 

Subagent  represents  principal,  §  2351. 
Subagent,  what  powers  cannot  be  delegated  to,  §  2349. 
Terminated  by  what,  §§  2355,  2356. 
Termination  of,  power  coupled  with  interest,  §  2356. 
Third  person,  agent's  obligation  to  surrender  property  to,  §  2344. 
Third  persons,  agent's  responsibility  to,  §  2343. 
Torts,  agent's  liability  for,  to  third  persons,  §  2343. 
Torts  of  agent,  liability  of  principal,  §§  2338,  2339. 
Trustee's  powers  as  agent,  §  2267. 
Vaeancv   in    incumbency   of   corporation    sole,    effect    of    on    agencv. 

§  602a. 
Wages,  power  of  attorney  to  collect  revocable  at  any  time,  §  955. 
Warrant,  authority  to,  included  in  power  to  sell,  §§  2323,  2324. 
Warrant  of  authority  by  agent,  §  2342. 
What  authority  may  be  conferred  on,  §  2305, 
Who  may  act  as  agent,  §  2349. 


INDEX.  985 

AGENCY.      (Continued.) 

Who  may  be  appointed  as  agent,  §  2349. 

Willful  or  wrongful  acts  or  omissions  of  agent,  liability  for,  §§  2338, 

2339. 
Written,  authority  to  lease  to  be,  when,  §  1624. 
Written,  authority  to  purchase  or  sell  realty  to  be,  §  1624. 

AGISTOE. 

Compensation  for  part  of  week  or  month,  §  1853. 
Duty  of,  §  1834. 
Liens  of,  §  3051. 

AGRICULTURAL  ASSOCIATIONS.     See  Non-profit  Co-operative,  Agri- 
cultural, Viticultural  and  Horticultural  Associations. 

AGRICULTURAL  FAIR  CORPORATIONS. 

Debt  for  realty  may  be  secured  by  mortgage,  §  621. 

Debts  contracted   illegallly,   directors  liable  for,  §  621. 

Debts  not   to  be   contracted  beyond  amount  in  treasury  except  for 

realty,  §  621. 
Debts,  power  to  create  for  realty,  §  621. 
Fees,  limitation  upon   amount  of,  §  622. 
Fees  to  be  provided  in  by-laws,  §  622. 
Have  no  capital  stock,  §  622. 
Income  of,  from  what  derived,  §  622. 
Membership  of,  §  622. 
Not  conducted  for  profit,  §  622. 
Eeal  estate,  for  what  purpose  to  be  held,  §  620. 
Eeal  estate,  how  much  may  be  purchased,  leased  or  sold  by,  §  620. 

AGRICULTURAL  LAND. 

Limitation  upon  term  for  which  may  be  leased,  §  717. 

AGRICULTURE.     See    Agricultural    Fair    Corporations;    Non-profit    Co- 
operative,  Agricultural,   Viticultural  and  Horticultural  Associa- 
tions. 
Lease  of  land  for,  cannot  be  for  over  fifteen  years,  §  717. 

AIR. 

Easement  of,  §  801. 

ALIEN. 

Apprenticeship  of,  §  274. 

Inheritance  by,  §§  672,  1404. 

May  take,  hold  and  dispose  of  realty  and  personalty,  §  671. 

Must  appear  and  claim  ])roperty  within  five  years,  §§  672,  1404. 

Non-resident,  failure  to  claim  estate,  proceedings  in  case  of,  §§  1405, 

1406. 
Non-resident,  interest  in  estate  escheats,  when,  §  1406. 
Non-resident,  property  escheats  subject  to  charges,  §  1407. 
Non-resident,  taking  by  succession,  within  what  time  to  make  claim, 

§  1404. 
Property  rights  of,  §  672. 

ALIENATION.     See  Conveyances. 

Condition  restraining,  effect  of,  §  711. 

Contingent  remainder  on  estate  for  years  must  vest  during  lives  in 

being,  §  776. 
Estate  for  life  limited  as  remainder  on  term  of  years,  to  be  to  one 

in  being,  §  777. 


986  INDEX. 

ALIENATION.      (Continued.) 

Estate  for  years,  power  to  suspend  alienation  of,  §  770. 
Future  interest,  suspending  power  of,  void,  §  716. 
Income  undisposed  pending  suspension,  to  whom  belongs,  §  733. 
Limitation  on  power  of  suspension  in  estates  for  years,  §  770. 
May  be  suspended  how  long,  §  715. 
Of  chattel  real,  power  to  suspend,  §  770. 
Power  of,  how  long  may  be  suspended,  §  715. 
Power  of,  when  suspended,  §  716. 

Successive  estates  for  life  beyond  lives  in  being,  remainder  on,  tak- 
ing effect  of,  §  774. 
Successive  estates  for  life  to  be  limited  to  persons  in  being  at  cre- 
ation, §  774. 
Suspension  of  power  of,  by  trust,  what  is,  §  771.  — 

Who  entitled  to  income  where  no  disposition  of  it,  §  733. 

ALIMONY.     See  Divorce. 

ALLUVION. 

Defined,  §  1014. 
Ownership   of,  §  1014. 

ALTERATION. 

Alteration  and  cancellation  of  contracts  in  general,  §§  1697-1701. 

Duplicate,   alteration  of,   effect  of,  §  1701. 

Guarantor  exonerated  by,  §  2821. 

Insurance,  alteration  of  representation,  §  2576. 

Insurance,  fire,  effect  of  alteration,  §§  2753,  2754. 

Material,  extinction  of  contract  by,  §  1700. 

Verbal  contract,   consideration    not    necessary,  §  1697. 

Verbal  contract,  extinguished  by,  to  extent  of,  §  1697. 

Verbal  contract  may  be  altered  by  consent,  §  1697. 

Written  contract,  how  altered,  §  1698. 

ALTERNATIVE. 

Future  interest  in  the,  may  be  created,  §  696. 
Obligations,  §§  1448-1451.     See  Obligations. 

AMBIGUITY. 

Wills,  in,  construction,  §  1323. 

AMENDMENT. 

Articles  or  certificate  of  incorporation,  of,  §  362. 
Laws  relating  to  corporations.     See  Corporations,  II. 
Notice  of  location  of  mining  claims,  filing  amended,  §  1426h. 

AMUSEMENTS.     See  Theaters. 

All  citizens  to  have  equal  rights  in  public  places,  §  51. 

Denial  of  equal  rights,  punishment,  §  52. 

Inciting  denial  of  equal  rights,  punishment  of,  §  52. 

Persons  may  be  excluded  from  when,  §  53. 

Eefusal  of  admission  to  places  of,  punishment,  §  54. 

Eefusal  of  admission,  unlawful,  §  53. 

ANIMALS. 

Action  for  injuries  by  dog,  knowledge  of  character  of  dog  need  not 

be  shown,  §  3341. 
Agistors.     See  Agistors. 
Bull  used  for  propagation,  lien  for  services  and  how  enforced,  §§  3062- 

3064. 


\ 


INDEX.  987 

ANIMALS.      (Continued.) 

Care  required  of  borrower,  §  1887. 

Combinations  to  obstruct  sales  of  live-stock  prevented.  Appendix, 
tit.  "Animals." 

Cruelty  to.  See  Societies  for  Prevention  of  Cruelty  to  Children  and 
Animals. 

Damages  for  injuries  by  vicious,  §  3341. 

Damages  for  injuries  to,  §  3340. 

Depositary  of,  compensation  of  for  parts  of  week,  §  1853. 

Depositary  of,  duties  of,  §  1834. 

Depositary  of,  lien  of,  §  3051. 

Dog  injuring  sheep  or  goats  may  be  killed,  §  3341. 

Dog  killing  goats,  sheep,  or  poultry,  liability  of  owner,  §  3341. 

Dog  killing  goats,  sheep,  or  poultry,  knowledge  of  dog's  tendency 
need  not  be  shown  in  action  by  owner,  §  3341. 

Domestic,  subject  of  ownership,  §  655. 

Diity  of  person  saving,  §  1865. 

Game,  right  to  take  game  and  fish  as  a  servitude,  §  802. 

Insurance  of  live-stock  on  assessment  plan,  act  relating  to.  Appen- 
dix, tit.  "Insurance." 

Jacks  used  for  propagation,  lien  for  services  and  how  enforced, 
§§  3062-3064. 

Killing  or  injuring  goats  by  dogs,  damages  for,  §  3341. 

Killing  poultry  by  dogs,  damages  for,  §  3341. 

Killing  sheep  by  dogs,  damages,  §  3341. 

Lien  of  persons  pasturing,  boarding,  etc.,  §  3051. 

Lien  in  favor  of  owner  of  bulls,  jacks  or  stallions  used  for  propaga- 
tion, §§  3062-3064. 

Limitations  of  liability  for,  in  bill  of  lading,  effect  of,  §  2176. 

Poultry,  liability  of  owner  of  dog  killing,  §  3341. 

Propagation,  lien  of  owner  of  animals  used  for,  §  3062. 

Railroads,  liability  of  for  injuries  to,  §  485. 

Saver  of,  appraisement  and  preparation  and  filing  of  list,  §  1865. 

Saver  of,  duty  of,  §  1865. 

Saver  of,  not  to  charge  compensation,  §  1865. 

Saver  of,  penalty  for  failure  to  comply  with  statute  or  surrender 
property,  §  1871. 

Saver  of,  publication  of  list  by,  §  1871. 

Saver  of,  title  vests  in  after  what  time,  §  1871. 

Stallions  used  for  propagation,  lien  for  services  and  how  enforced, 
§§  3062-3064. 

There  may  be  ownership  of,  §  655. 

"Veterinary  hospital  proprietors  have  lien  for  services,  §  3051. 

Veterinary  hospital  proprietors,  lien  is  dependent  on  possession, 
§  3051. 

Veterinary  hospital  proprietors,  lien,  sale  for,  manner  of  and  dis- 
position of  proceeds, §  3052. 

Veterinary  surgeons  have  lien  for  services,  §  3051. 

Veterinary  surgeons,  lien  is  dependent  on  possession,  §  3051. 

Veterinary  surgeons,  lien,  sale  for,  manner  of  and  disposition  of  pro- 
ceeds, §  3052. 

Vicious,  damages  for  injuries  by,  §  3341. 

'Vicious,  knowledge  of  propensities  need  not  be  shown,  §  3341. 

Vicious,  right  to  kill,  §  3341, 

Wild,  property  in,  §  656. 

ANNUITY. 

Beneficiary  may  be  restrained  from  disposing  of,  §  867. 


%S  INDEX. 

ANNUITY.     (Continued.) 

Commences,  when,  §  1368. 

Defined,  §  1357. 

Effect  of  failure  of  fund,  §  1357. 

Failure  of  fund,  resort  to  other  property,  §  1357. 

ANNUITY  INSURANCE.     See  Mutual  Life,  Health,  Accident  and  An- 
nuity Insurance  on  Assessment  Plan. 

ANNULMENT. 

Of  indenture   of  apprenticeship,  §  276. 
Of  marriage.     See  Marriage. 

APPEAL. 

Divorce,  revision  of  order  disposing  of  homestead,  §  148. 
Interlocutory  decree  of  divorce,  appeal  from,  §  131,  note. 
Interlocutory  decree   of  divorce,   appeal  from  decree   in,  finaj  judg- 
ment not  entered  until  after  disposition  of,  §  132. 
Order  relating  to  property  on  divorce,  subject  to,  §  148. 

APPLICATION. 

Of  interest,  §  1479. 

Of  money  transferred  to  trustee,  when  one  must  see  to,  §  2244. 

Of  performance,  §  1479. 

Of  performance,  rescission  of,  §  1479. 

Of  performance,  where  several  obligations,  §  1479. 

Partnership  property,  of,  to  partnership  debts,  §  2405. 

APPOINTMENT. 

Effect  of  power  of  on  future  interest  where  not  executed,  §  781. 

No  person  guardian  of  estate  without,  §  242. 

Of  guardian  by  the  court,  §§  243,  244. 

Of  guardian  by  the  court  supersedes  parent,  §  204. 

Of  successor  to  trustee,  dutj'  of  trustee  concerning,  §  2260. 

Of  trustee,  how  made,  §  2287. 

APPORTIONMENT. 

Lien  is  not  parti}'  extinguished  on  part  performance,  §  2913. 

Of  burden  of  servitude  on  partition  of  dominant  tenement,  §  807. 

Of  consideration  in  case  of  prevention  of  performance,  §  1514. 

Of  covenants,  §  1467. 

Of  devises  and  legacies  in  ease  of  pretermission  of  child,  §  1308. 

Of  freightage,  according  to   distance,  §  2142. 

Of  freightage,  by  acceptance  of  part,  §  2141. 

Of  freightage,  by  contract,  §  2140. 

Of  general  average  loss,  §§  2151.  2152,  2153. 

Of  hire,  §  1935. 

Of  losses  occasioned  by  collision  of  vessels,  §  973. 

Termination  of  hiring  before  time,  apportionment  of  hire,  §  1935. 

APPRAISEMENT. 

Of  homestead,  §§  1245-1258.     See  Homesteads. 
Of  property  found,  §  1865. 

Reports  of  mortgage  insurance  companies  to  insurance  commissioner. 
appraisements  of  properties  to  accompany,  §  453gg. 

APPRENTICESHIP. 

Act  relating  to  masters  and  apprentices,  §  264,  note. 
Age  at  which  minor  ma}-  be  bound,  §  264. 
Age  to  which  minor  may  be  bound,  §  264. 


INDEX.  989 

APPRENTICESHIP.     (Coutinued  .) 

Breach  of  covenant,  damages,  how  applied,  §  273. 

Breach  of  covenant,  master  liable  for,  §  273. 

Breach  of  covenants,  action  lies  within  what  time,  §  273. 

Complaint  of  apprentice,  duty  to  hear,  §  271. 

Death  of  master,  effect  of,  §  266. 

Discharge  by  superior  court,  binding  minor  again,  §  272. 

Discharge  of  apprentice,  power  of  superior  court,  §  272. 

Duty  to  inquire  into  treatment  of  apprentice,  §  270. 

Enticing  apprentice,  liability  for,  §  275. 

Executor,  when   may   bind,  §  265. 

Father  loses  right  to  bind,  when,  §  265. 

Father  may  bind,  §  265. 

Fees,  none  to  be  charged  where  homeless  minor  apprenticed,  §  268. 

Guardian  may  bind  ward,  when,  §  265. 

Harboring  runaway  apprentice,  liability  for,  §  275. 

Hearing  of  complaints  of  apprentices,  §  271. 

Homeless  minor,  no  fee  to  be  charged,  §  268. 

Homeless  minor,    provision   in    indenture    as    to    education,    clothing, 
etc.,  §  268.- 

Homeless  minor,  superior  court  may  bind,  §  268. 

Homeless  minor,  who  may  institute  proceedings,  §  268. 

Illegitimate  child,   mother   alone    can   bind,  §  265. 

Illegitimate  child,  mother  marrying,  right  to  bind,  §  265. 

Indenture,   consent   of  mother,  indorsement  of  incapacitv   of  father, 
§  267. 

Indenture,  delivering  and  filing  of,  §  266. 

Indenture,  effect  of  death  of  master,  §  266. 

Indenture,  how  executed,  §  266. 

Indenture   not   complying  with   statute   is   void,  §  266. 

Indenture  of  homeless  minor,  provision  as  to  education,  clothing,  etc., 
§  268. 

Indenture,  what  to  contain,  §  266. 

Jury  trial  on  incapacity  of  father  where  mother  consents,  §  267. 

Jury  trial,  who  to  pay  costs  of,  §  267. 

Master  to  keep  apprentice  within  state,  §  269. 

Minor  may  bind  himself,  when,  §  265. 

Minors  who  may  be  bound  as,  §  264. 

Misbehavior  by  apprentice,  liability  for,  §  274. 

Misbehavior  by  apprentice,  proceedings  against,  §  274. 

Misbehavior  by  apprentice,  proceedings  against,  costs  of,  §  274. 

Misbehavior  by  apprentice,  remedy  of  master,  §  274. 

Money,  clothes,  etc.,  delivery  to  apprentice,  §  269. 

Money,  clothes,  etc.,  duty  of  superior  court  as  to,  §  272. 

Money,  clothes,  etc.,  provision  as  to  in  indenture,  §  268. 

Mother,  consent  of,  jury  trial  on  incapacity  of  husband,  §  267. 

Mother  marrying,  right  of  to  bind,  §  265. 

Mother  may  bind,  when,  §  265. 
,  Occupations  to  which  minors  may  be  apprenticed,  §  264. 

it         Protection  of  apprentice,  duty  as  to,  §  270. 

m..       Release  of  master  removing  from  state  or  quitting  business,  §  276. 
K         Superior  court,  duty  as  to  money,  clothes,  etc.,  §  272. 
P         Superior  court  may  bind  homeless  minors,  §  268. 

Superior  court,  power  to  discharge  apprentice,  §  272. 

Superior  court,  power  to  rebind  after  discharge,  §§  272,  276. 

Superior  court  to  defend  apprentice  from  mistreatment,  §§  270,  271. 

Superior  court  to  hear  complaints  of  apprentices,  §  271. 

Treatment  of  apprentice,  duty  to  inquire  into,  §  270. 


990  INDEX. 

APPRENTICESHIP.     (Continued .) 
Who   may  be  bound  as,  §  264. 
Who  may  bind  minor,  §§  265,  268. 

APPURTENAiSrCE. 

Deemed  fixture,  when,  §  661. 

Definition  of,  §  662. 

Easements.     See  Easements. 

Incident  passes  with  transfer  of  principal,. §§  1084,3540. 

Incidents,  transfer  of,  does  not  pass  principal  thing,  §  1084. 

Irrigation  stock  appurtenant  to  land,  §  324. 

Irrigation  stock  appurtenant  to  land,  how  sold,  §  324. 

Land,  what  deemed  to  be  appurtenant  to,  §  662. 

Passes  by  transfer  of  land,  §§  476,  1084,  3540. 

Real  property,  is,  §  658. 

Ship,  what  are  appurtenances  to,  §  961. 

ARBITRATION. 

Partner  cannot  submit  to,  §  2430. 

Specific  performance  of  agreement  for,  not  granted,  §  3390. 

ARTICLES  OF  INCORPORATION.  See  Corporations;  Foreign  Corpo- 
rations. 

ASSAULT. 

Of  member  of  one's  family,  right  to  protect  against,  §  50. 

Of  servant,  master,  ward,  or  guest,  right  to  protect  against,  §  50. 

Eight  of  self-protection  against,  §  50. 

ASSESSMENT  INSURANCE.  See  Mutual  Benefit  and  Life  Associa- 
tions; Mutual  Life,  Health,  Accident  and  Annuity  Insurance  on 
Assessment   Plan. 

ASSESSMENTS.     See  Corporations,  XV;  Mutual  Benefit  Associations. 
Boards  of  trade,  chambers  of  commerce,  and  mechanics'  institutes, 

by,  §§  592c,  592d. 
Covenant  for  payment  of,  runs  with  land,  §  1463. 
Encumbrance  includes,  §  1114. 
Fire  patrol,  to  maintain.     See  Fire  Patrol. 

ASSIGNEES. 

Corporation  authorized  to  act  as,  minimum  capital  required  and  affi- 
davit as  to, §  290a. 

Deposit  of  money  in  trust  company  by,  under  order  of  court  and  dis- 
charge from  liability.     Appendix,  tit.  "Banking,"  §  91. 

Deposit  of  personal  assets  in  trust  company  and  reduction  of  bond. 
Appendix,  tit.  "Banking,"  §  93. 

ASSIGNMENTS. 

Action  against  street  railwav  for  penaltv  for  overcharging,  of,  §  504. 

Bill  of  lading,  of,  §§  2127,  2128. 

Chose  in   action,   of,  §  954. 

Debt  secured  bj-  mortgage,  of,  carries  security,  §  2936. 

Five  days'  notice  on  assignment  of  stock  in  trade,  §  3440.     • 

General,  to  indorser  excuses  notice  of  dishonor,  §  3157. 

Goodwill,  of,  and  rights  of  assignee,  §  993. 

Landlord  or  tenant,  hj.     See  Landlord  and  Tenant. 

Life   insurance  policj',   of,  §  2764. 

Literary  property  is  assignable,  §  982. 

May  be  oral,  when,  §  1052. 


INDEX.  991 

ASSIGNMENTS.     (Continued.) 

M'embership  in  non-profit  co-operative  agricultural,  viticultural  and 

horticultural  association  not  assignable,  §  653n. 
Mere  possibility  cannot  be  transferred,  §  1045. 
Mortgage,  assignment  of  may  be  recorded,  §  2934. 
Mortgage,  record  of  assignment  of,  as  notice,  §§  2934,  2935. 
.  Non-negotiable  contract  may  pass  by,  §  1459. 
Non-negotiable  instrument,  transfer  of,  subject  to  defenses,  §  1459. 
Non-negotiable  instrument  transferable  by  indorsement,  §  1459. 
Notice   of  five  days  to   be   given   on   assignment  of  stock  in  trade, 

§  3440. 
Obligation,  rights  arising  out  of,  are  transferable,  §  1458. 
Obligations,  burden  of,  not  transferable  without  consent,  §  1457. 
Partner  may  not  make,  §  2430. 

Power  to  sell  in  encumbrancer  passes  to  assignee,  §  858. 
Products  of  the  mind,  of,  §  980. 
Property  of  any  kind  may  be  transferred,  §  1044. 
Ee-entry,  right  of,  may  be  transferred,  §  1046. 
Transfer.     See  Transfer. 
.  Wages,  provision  relating  to,  §  955.     See  Master  and  Servant. 
Warranty  of  written  instrument  sold,  §  1774. 

ASSIGNMENTS  FOR  CREDITORS. 

Accounting  by  assignee,  §  3469. 

Acknowledging,  §§  3458,  3459. 

Affidavit  by  assignor,  effect  of  refusal  to  make,  §  3462. 

Affidavit  to  inventory  by  assignor,  §  3462. 

Alteration  of,  consent  of  parties  necessary,  §  3473. 

Assignee,  accounting  by,  §  3469. 

Assignee,  allowance  of  expenses,  §  3471. 

Assignee,  compensation  of,  §  3471. 

Assignee,  election  of  in  place  of  sheriff,  §  3449. 

Assignee,  expenses  of,  §  3471. 

Assignee  not  liable  for  void  acts  done  in  good  faith,  §  3472. 

Assignee  not  purchaser  for  value,  §  3460. 

Assignee,  powers  and  duties  of,  §  3449. 

Assignee,  rights  accrue,  when,  §  3449. 

Assignee,  sheriff  to   be  paid   fees   and   expenses  before   transfer   to, 

§  3449. 
Assignee  takes  subject  to  rights  of  third  parties,  §  3460. 
Assignee,  transfer  to  by  sheriff,  how  made,  §§  3449,  3458,  3459. 
Assignee,  transfer   to   by   sheriff,   recitals   in   prima   facie   evidence, 

§  3449. 
Assignee,  transfer  to  by  sheriff,   to  be  acknowledged  and  recorded, 

§  3458. 
Assignee,  transfer  to,  sheriff  to  make,  §  3449. 

Assignee  without  authority  until  inventory  and  bond  filed,  §  3468. 
Assignment,  what  to  contain,  §  3449. 
Assignor,  citation  of  for  examination,  §  3462. 
Assignor,  compelling  surrender  of  books,  papers,  etc.,  by,  §  3462. 
Bond,  amount  and  conditions  of,  §  3467. 
Bond,  assignee  to  give,  §  3467. 
Bond,  failure  to  file,  effect  of,  §  3467. 
Bond,  filed,  to  be,  before  authority  commences,  §  3468. 
Bond,  filing,  place  of,  §  3467. 
Bond,  filing,  time  of,  §  3467. 
Bond,  sheriff  need  not  give,  §  3467. 
By  more  than  one  assignor,  inventory,  filing  of,  §  3464. 


992  INDEX. 

ASSIGNMENTS  FOR  CREDITORS.     (Continued.) 
By  more  than  one  assignor,  recording  of,  §  3464. 
Cancellation  of,  not  without  consent  of  parties,  §  3473. 
Citation   of  assignor  for  examination,  §  3462. 
Claims  of  creditors,  how  presented,  §  3468. 
Coercion  of  creditor,  effect  of,  §  3457.  - 

Compensation  and  expenses  of  assignee,  §  3471. 
Compensation  and  expenses   of   sheriff,  §  3449. 
Conflict   of   laws,   assignment   bv   person   residing   in   another  state, 

§  34.51. 
Contingent  liabilities  may  be  secured,  §  3452. 
Creditors,  list  of,"with  residences  and  amount  and  nature  of  demands, 

§  3449. 
Creditors,  statement  of  demands  of,  §  3449. 
Debts  that  may  be  secured,  §  3452. 
Deeds,  where  encumbered  property  sold,  §  3468. 
Dividends  to  creditors,  §  3468. 
Examination  of  assignor,  §  3462. 
Exempt  property  does  not  pass,  §  3470. 
Fraud  in,  effect  of,  §  3457. 
How  made,  §§3449,  3458. 
Insolvency  defined,  §  3450. 
Insolvent  debtor  may  make,  §  3449. 
Insurance  on  life  does  not  pass  by,  §  3470. 
Inventory,  affidavit  to,  §  3462. 

Inventory,  affidavit  to,  effect  of  failure  or  refusal  to  make,  §  3462. 
Inventorv  and  affidavit,  assignee  mav  make,  where  assignor  refuses, 

§  3462. 
Inventory,  effect  of  refusal  or  neglect  to  make  and  file,  §  3462. 
Inventory,  filing,  §§  3460-3465. 
Inventory,  filing  of,  effect  of  want  of,  §  3465. 
Inventory,  time  to  file,  §  3461. 

Inventory  to  be  filed  before  assignee's  authority  commences,  §  3468. 
Inventory,  what  to  contain,  §  3461. 
Inventory,  where  more  than  one  assignor,  §  3464. 
Limitations  on,  §  3449. 

List  of  creditors  with  addresses  and  amounts  of  demands,  §  3449. 
Meeting  of  creditors,  adjournment  of,  §  3449. 

Meeting  of  creditors,  majority  in  amount  of  demands  governs,  §  3449. 
Meeting  of  creditors,  notice  of,  contents  of,  §  3449. 
Meeting  of  creditors,  notice  of,  mailing  and  publication  of,  §  3449. 
Meeting  of  creditors,  notice  of,  sheriff  to  give,  §  3449. 
Meeting  of  creditors,  proxy,  how  executed,  §  3449. 
Meeting  of  creditors,  publication  of  notice  of,  §  3449. 
Meeting  of  creditors,   secured  creditors   not  to  vote,  §  3449. 
Meeting  of  creditors,  sheriff  to  preside,  §  3449. 
Meeting  of  creditors,  time  of,  §  3449. 
Meeting  of  creditors,  voting,  §  3449.  ' 

Meeting  of  creditors,  voting  by  secured  creditors,  §  3449. 
Meeting  of  creditors,  voting  may  be  in  person  or  by  proxy,  §  3449. 
Modification  of,  not  without  consent  of  parties,  §  3473. 
Non-resident,  by,  §§  3449,  3451. 

Xon-resident,  power  to  transfer  property  in  state,  §§  3449,  3451. 
Xon-residents,    general    assignment    bv,   to    conform    to    our   statute, 

§  3451. 
Notice  of  meeting  of  creditors,  §  3449. 
Notice  of  meeting.     See  ante,  Meeting  of  Creditors. 


INDEX.  993 

ASSIGNMENTS  FOR  CREDITORS.     (Continued.) 

Notice  to  creditors,  incorrect  statement  of  claim,  remedy,  §  3449. 

Notice  to  creditors,  recitals  as  to,  eifect  of,  §  3449. 

Notice  to  creditors,  requiring  them  to  present  demands,  §  3468. 

Notice  to  creditors  to  present  claims,  filing  of,  §  3468. 

Notice  to  creditors   to   present   claims,   mailing   and   publication    of, 
§  3468. 

Out  of  state,  where  assignor  is,  §§  3449,  3451. 

Partner  may  not  make,  §  2430. 

Passes  no  better  title  than  assignor  has,  §  3460. 

Perishables,  disposal  of,  §  3468. 

Preferences,  right  to  make  and  effect  of,  §§  3451,  3457. 

Provisions  exempting  assignee   from  liability  for  neglect  or  miscon- 
duct, invalidates,  §  3457. 

Provisions  preventing  or  delaying  execution  of  trust,  effect  of,  §  3457. 

Publication  of  notice  of  creditors'  meeting,  §§  3449,  3468. 

Real  propertv,  subject  to  provisions  of  Recording  Act,  §  3466. 

Recording,  §§  1164',  3458,  3459,  3463,  3464,  3466. 

Recording,  effect  of  not,  §  3465. 

Recording  where  more  than  one  assignor,  §  3464. 

Reservations  for  assignor,  effect  of,  §  3457. 

Reserving  interest  avoids,  §  3457. 

Restrictions  on,  §  3449. 

Secured  creditor  admitted  onlv  for  balance  of  debt,  unless  releases 
security,  §  3468. 

Secured  creditor  admitted  to  dividend  only  for  balance  after  deduct- 
ing security,  §  3468. 

Secured  creditor  cannot  prove  any  of  debt,  when,  §  3468. 

Secured  creditor  cannot  vote  at  meeting  without  releasing  security, 
§  3449. 

Secured  creditor  may  prove  whole  debt,  how,  §  3468. 

Secured  creditor,  release  of  right  of  redemption,  §  3468. 

Secured  creditor,  sale  of  the  property,  §  3468. 

Sheriff  need  not  give  bond,  §  3449. 

Sheriff's  fees  and  expenses,  §  3449. 

Sheriff''s  liabilitv  on  official  bond,  §  3467. 

Sheriff,  to  be  made  to,  §  3449. 

Sheriff  to  hold  property,  §  3449. 

Sheriff,  to  what  sheriff  to  be  made,  §  3449. 

Sheriff,  transfer  by  to  be  acknowledged  and  recorded,  §  3458. 

Sheriff,  transfer  by  to  be  in  writing,  §§  3458,  3459. 

Sheriff's  transfer  to  assignee,  recitals  in,  prima  facie  evidence,  §  3449. 

Statement  of  creditor's  demand,  §  3449. 

Subscribing,  §  3458. 

Surrender  of  books,  papers  and  vouchers  to  assignee,  court  may  order, 
§  3462. 

Third  parties,  assignee  takes  subject  to  rights  of,  §  3460. 

To  what  sheriff  to  be  made,  §  3449. 

Transfer    bv    non-resident    not    affected    by    provisions    concerning, 
§  3451. " 

Verification  of,  §  3462. 

Void,  when,  §§  3457,  3459. 

Who  may  make,  §§3430,  3449. 

Writing,  must  be  in,  §§  3458,  3459. 

Writing,  transfer  by  sheriff  to  be  in,  §§  3458,  3459, 
Civ.  Code — 63 


994  INDEX. 

ASSOCIATIONS.  See  Boards  of  Trade;  Building  and  Loan  Associations; 
Chambers  of  Commerce;  Co-operative  Associations;  Co-operative 
Business  Associations;  Corporations;  Mechanics'  Institute;  Non- 
profit Co-operative,  Agricultural,  Viticultural  and  Horticultural 
Associations;  Non-profit  Co-operative  Corporations;  Pioneer 
Society;  Protective  Associations;  Friendly  Society. 

Bank  act  applies  to  what  associations.     Appendix,  tit.  "Banking,"  §  1. 

Letters  of  credit,  license  from  superintendent  of  banks  necessary 
before  issuing.     Appendix,  tit.  "Banking,"  §  13. 

Letters  of  credit,  license  to  issue,  fee  for.  Appendix,  tit.  "Banking," 
§13. 

Letters  of  credit,  right  to  issue.     Appendix,  tit.  "Banking,"  §  13. 

Meetings,  manner  of  calling  vrhere  by-laws  provide  method,  §  653ha. 

Meetings,  manner  of  calling  where  constitution  or  by-laws  fail  to  pro- 
vide method,  §  653ha. 

Meetings,  manner  of  calling  where  proper  ofiicer  fails  or  refuses  to 
act,  §  653ha. 

Protective,  act  validating  acknowledgments.  Appendix,  tit.  "Ac- 
knowledgments." 

Trustees,  increase  or  decrease  in  number  of,  majority  may  vote  for, 
§361. 

Trustees,  increase  or  decrease  in  number  of,  procedure  for,  §  361. 

ASSURANCE. 

Executory  contract  of  sale  binds  seller  to  give  covenant  of  further, 
§  1733. 

ASYLUMS. 

Orphan,  managers  may  consent  to  adoption,  when,  §  265. 

ATTACHMENT. 

Exemption  of  moneys  from  mutual  assessment  company,  §  ■453k. 
Lien  of  officer  levying  writ,  §  3057. 
Logger,  attachment  in  action  by,  §  3065. 
Mortgaged  personalty,  of,  §§  2968-2970. 

Mortgaged  property,  how  attached  and  proceedings  on,  §  2969. 
Mortgaged    property,    sale    of    and    disposition    of   nroceeds,  §§  2968, 
2970. 

ATTORNEY. 

Fees  in  action  by  co-owner  of  irrigation  flume  for  contribution,  §  8-13. 
Negotiable  instrument  may  provide  for  attorney's  fees,  §  3088. 
Powers  of.     See  Power  of  Attorney. 

ATTORNEY-GENERAL. 

Actions  for  penalties  or  forfeitures  under  the  banking  act.  Appen- 
dix, tit.  "Banking,"  §  144. 

Duty  of,  when  alien  heir  does  not  claim  succession,  §  1405. 

Duty  to  collect  penalty  where  railroad  raises  rates,  §  494. 

Inquiring  into  affairs  of  corporations,  §  382. 

Inquirv  into  right  of  co-operative  business  association  to  do  business, 
§653k. 

May  inquire  into  right  of  non-profit  co-operative,  agricultural,  viti- 
cultural and  horticultural  association  to  do  business,  §  653s. 

May  inquire  into  right  of  non-profit  co-operative  corporation  to  do 
business,  §  653z. 

Proceedings  where  succession  to  estate  not  claimed,  §§  1405,  1406. 

ATTORNEY  IN  FACT. 

Certificate  of  acknowledgment  by,  form  of,  §  1192. 
How  to  convey  realty,  §  1095. 
Kevoking  power  of,  §  1216. 


indeXt  995 

attornment. 

Of  tenant  to  stranger,  §  194S. 

To  landlord  on  grant  of  rent,  reversions,  or  remainders,  §  1111. 

AUCTION. 

Auctioneer  has  what  authority  from  bidder,  §  2363. 

Auctioneer  has  what  authority  from  seller,  §§  2362,  2363. 

Bid,  withdrawing,  §  1794. 

By-bidding,  effect  of,  §  1797. 

Defined,  §  1792. 

Delinquent  stock,  sale  of,  §  341. 

Five  days'  notice  of  sale  of  stock  in  trade  at,  to  be  recorded,  §  3440. 

Memorandum,  auctioneer,  authority  of,  to  sign,  §  2363. 

Memorandum  of  auctioneer  is  sufficient,  §  1624. 

Memorandum  of  sale,  auctioneer's,  effect  of,  §  1798. 

Pledge,  auction  sale  of,  pledgee  or  pledge-holder  may  purchase,  §  3010. 

Pledge,  sale  of,  to  be  by  auetiori,  §  3005. 

Sale  complete,  when,  §  1793. 

Sale  of  property  subject  to  lien  for  services,  §  30.52^. 

Sale  under  written  conditions  not  alterable  by  parol,  §  1795. 

Sale  without  reserve,  bids  by  seller  or  agent,  void,  §  1796. 

Sale  without  reserve,  rights  of  buyer,  §  1796. 

Statute  of  frauds,  memorandum  by  auctioneer  satisfies,  §  1624. 

Warrant,  power  of  auctioneer  to,  §  2362. 

AUTHOR. 

Property  of,  in  writings,  §§  980-985.     See  Literary  Property. 

AUTHORITY. 

Joint,  construction  of  words  giving,  §  12. 
Of  particular  persons.     See  particular  title. 

AUTOMOBILES. 

Franchises  for  roads  for,  consent  of  majority  of  frontage,  §  524. 
Franchise  for  roads  for,  power  to  grant,  §  524. 
Liens  of  keepers  of  garages  for  services,  §  3051. 

AVERAGE.     See  General  Average. 

AVULSION. 

In  general,  §  1015. 

Land  may  be  reclaimed  within  year,  §  1015. 

What  is,  §  1015. 

AWARD.     See  Arbitration. 

6 

BAGGAGE.     See  Passenger  Carriers. 

Amount  of,  for  each  passenger,  §  2180. 

Bicycle  carried  as  luggage  need  not  be  crated,  §  2181. 

Bicycles,  passenger  not  -entitled  to  carry  more  than  one  as  luggage, 
§2181. 

Checks,  penalty  for  refusal  to  give,  §  479. 

Defined,  §2181. 

Lien  of  hotel,  loilging-house  keepers,  etc.,  how  enforced,  §  1861. 

Lien  of  hotel,  lodging-house  keepers,  etc.,  sale  of,  procedure  and  dis- 
position of  proceeds,  §  1861. 

Lien  of  hotel,  lodging-house  keepers,  etc.,  on,  for  unpaid  charges, 
§  1861. 


996  INDEX. 

BAGGAGE.      (Continued.) 

Liniitatiou  of  liability  of  innkeeper  or  lodging-house  keeper  for, 
§  1859. 

On  freight  train,  §  483. 

Eailway,  checks  to  be  affixed  to,  §  479. 

Eights  of  hotel,  lodging-house  keeper,  etc.,  where  baggage  not  prop- 
erty of  guest,  §  1861. 

Sale  of  unclaimed,  by  innkeeper,  lodging-house  keeper,  etc.,  rights  of, 
§  1862. 

Sale  of  unclaimed,  procedure  for,  and  disposition  of  proceeds,  §  1862. 

Samples,  wares,  etc.,  of  commercial  traveler,  §  2181. 

What  includes,  §  2181. 

BAIL.     See  Indemnity. 
Defined,  §  2780. 

Indemnity  in  legal  proceedings,  sureties  on,  called  bail,  §  2780. 
Obligations  governed  by  statutes  specially  applicable,  §  2781. 
Obligations,  how  governed,  §  2781. 
Sureties,  when  are  called  bail,  §  2780. 

BAILMENT.     See   Automobiles;  Deposit;   Depositary;   Garages;   Hiring; 
Loan;  Pledge;  Warehouseman. 
Gratuitous  depositary,  creditor  is,  when,  §  1505. 
Lien  on  personalty  for  services  performed  on,  §  3051. 
Services  performed  about  personalty,  lien  for.     See  Service. 

BALED  HOPS. 

Allowance  of  tare  on,  §  995. 

BANK  COMMISSIONER, 

Land  and  building  corporation,  report  of,  §  644. 
Land  and  building  corporations  subject  to,  §  647. 

BANKING  CORPORATIONS.     Sec  Banks  and  Banking. 

BANK  NOTES. 

Negotiable,  are,  §§  3095,  3261. 
Negotiable  after  payment,  §  3261. 

BANKRUPTCY.     See  Assignments  for  Creditors;   Insolvency. 

BANKS  AND  BANKING. 
I.  Generally. 
IL  Banking  Act  of  1909. 

I.     Generally. 

See  Corporations;    Savings  and  Loan  Corporations. 
Act   relating  to   non-profit   co-operative   corporations   does  not   apply 

to, §  653za. 
Affidavit  as  to  capital  stock,  filing  of  before  issuance  of  certificate, 

§  290a. 
Banking  corporations,  election  to  have  capital  stock,  §  300. 
Book  showing  stockholders,  conclusiveness  of,  §  321. 
Book  showing  stockholders  open  for  inspection,  §  321. 
Book  showing  stockholders,  to  be  kept,  §  321. 
Capital,  amount  paid  up,  publication  of,  §  583a.  . 
Capital  stock,  advertisement  as  to,  penaltv  for  not  obeying  statute, 

§  583a. 
Capital  stock,  advertisement  or  statement  as  to.  to  show  amount  paid 

up,  §  583a. 


INDEX.  997 

BANKS  AND  BANKING.     I.  Generally.     (Continued.) 

Capital  stock,  all  to  be  subscribed  before  certificate  issued,  §  580. 

Capital  stock,  amount  of  required,  §  580. 

Capital  stock,  amount  to  be  paid  on,  §  580. 

Capital  stock,  amount  to  be  paid  on,  minimum  required,  §  290a. 

Capital  stock,  proceedings  on  electing  to  have,  §  300. 

Capital  stock,  right  to  issue,  and  proceedings  on  issuance,  §  300. 

Certificate  of  deposit  negotiable,  §§  3095,  3261. 

Checks.     See  Negotiable  Instruments,  VII. 

Co-operative  business  associations,  provisions  relating  to,  do  not 
apply  to,  §  6531. 

Deposits,  unclaimed,  duty  of  bank  commissioners,  §  583b. 

Deposits,  unclaimed,  penalty  for  failure  to  publish,  §  583b. 

Deposits,  unclaimed,  statements  of  to  be  published,  §  583b. 

Dividends,  from  what  only  to  be  paid,  §  300. 

Dividends,  limitation  upon  power  to  pay,  §  300. 

Dividends,  power  to  declare,  §  583. 

Foreign  banking  partnership,  fictitious  name,  need  not  file  or  publish 
certificate,  §  2467. 

Letters  of  credit.     See  Letters  of  Credit. 

Lien,  banker  has,  §  3054. 

Lien  of  banker  is  dependent  on  possession,  §  3054. 

Misdemeanor,  advertisement  or  statement  as  to  capital  stock  with- 
out showing  amount  paid  up  is,  §  5S3a. 

Misdemeanor,  persons  engaged  in  banking  guilty  of,  unless  true 
names  shown,  §  582. 

Mortgage  participation  certificates  and  securities  guaranteed  by  poli- 
cies of  mortgage  insurance  as  legal  investments  for  funds  of, 
§  453ff. 

Names  of  persons  in  unincorporated  bank,  failure  to  show,  penalty, 
§  582. 

Names  of  persons  in  unincorporated  bank  to  be  shown,  §  582. 

Notice  showing  names  of  directors  and  number  of  transfer  of  shares, 
§321. 

Powers  and  rights  of  banking  corporation,  §  300. 

Savings.     See  Savings  and  Loan  Corporations. 

Special  partnership  cannot  be  formed  for  business  of  banking,  §  2477. 

Superintendent,  approval  of  proceedings  of  trust  companies,  §  290a. 

Surplus  and  reserve  fund,  conversion  into  paid-upon  capital  stock, 
§583. 

Surplus  and  reserve  fund,  creation  of,  §  583. 

Surplus  and  reserve  fund,  restoration  of  after  conversion  to  capital 
stock, §  583. 

True  names  of  persons  engaged  in  banking  to  be  shown,  §  582. 

Trust  companies.     See  Trust  Companies. 

II.     Banking  Act  of  1909, 

Administrator  or  executor,  eligibility  of  as  director  of  bank.  Ap- 
pendix, tit.  "Banking,"  §  10. 

Action  under  bank  act,  court  of  county  of  principal  place  of  business 
has   exclusive  jurisdiction.     Appendix,   tit.   "Banking,"  §  136b. 

Action  under  bank  act,  no  damages  to  be  awarded.  Appendix,  tit. 
"Banking,"  §  136b. 

Action  under  bank,  tried  and  determined  according  to  code.  Appen- 
dix, tit.  "Banking,"  §  136b. 

Action  under  bank  act,  what  proceedings  and  papers  made  part  of 
record  of.     A})pendix,  tit.  "Banking,"  §  136b. 

Act  to  be  known  as  "bank  act."     Appendix,  tit.  "Banking,"  §  1, 


998  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Advertising  as  a  bank,  penalties  and  remedy  for  violation  of  statute 
relating  to.     Appendix,  tit.  "Banking,"  §  12a. 

Advertising  as  a  bank,  prerequisites  to.  Appendix,  tit.  "Banking," 
§  12a. 

Advertising  capital,  resources,  liabilities,  etc.,  provision  as  to.  Ap- 
pendix, tit.  "Banking,"  §  14. 

Advertising  or  doing  business  as  a  bank.  Appendix,  tit.  "Banking," 
§  12. 

Advertising  statements,  what  to  show.  Appendix,  tit.  "Banking," 
§  14. 

Advertisements,  stationery,  etc.,  to  show  character  of  banking  busi- 
ness done.     Appendix,  tit.  "Banking,"  §  28. 

Affidavit,  certified  copy  of,  filing  of  before  certificate  issued.  Appen- 
dix, tit.  "Banking,"  §  8. 

Any  number  of  persons  not  less  than  three  may  form  banking  cor- 
poration.    Appendix,  tit.  "Banking,"  §  3. 

Applies  to  what  corporations,  associations,  corporations  or  copart- 
nerships.    Appendix,  tit.  "Banking,"  §  1. 

Approval  by  superintendent  of  banks  and  certificate,  necessary  before 
doing  business.     Appendix,  tit.  "Banking,"  §  127. 

Articles  of  incorporation,  filing  certified  copy  of  with  superintendent 
of  banks.     Appendix,  tit.  "Banking,"  §  8. 

Assets  of  bank,  director,  officer,  agent,  or  servant  not  to  be  inter- 
ested in  purchase  of.     Appendix,  tit.  "Banking,"  §  42. 

Assets  of  bank,  punishment  where  auditor,  officer,  agent,  or  servant 
interested  in  purchase  of.     Appendix,  tit.  "Banking,"  §  42. 

Bad   debts,  what  debts  are.     Appendix,  tit.  "Banking,"  §  21a. 

Bank  ceasing  to  exist,  deposits  or  dividends,  unclaimed,  disposition 
of.     Appendix,  tit.  "Banking,"  §  136a. 

Bank  ceasing  to  exist,  authority  of  superintendent  of  banks  as  to 
and  rights  of  bank.     Appendix,  tit.  "Banking,"  §  136a. 

Bank  ceasing  to  exist,  liquidation  of  affairs  of.  Appendix,  tit. 
"Banking,"  §  136a. 

"Bank,"  definition  of.     Appendix,  tit.  "Banking,"  §  2. 

Bank  includes  what  corporations.     Appendix,  tit.  "Banking,"  §  2. 

"Bank,"  what  corporations  mav  not  use  term.  Appendix,  tit.  "Bank- 
ing," §  12.  " 

Banking  to  be  done  only  by  corporations  duly  organized.  Appendix, 
tit.  "Banking,"  §  2. 

Banking,  what  deemed  to  be.     Appendix,  tit.  "Banking,"  §  2. 

Board  of  directors  of  bank,  duty  to  examine  into  aifairs  of  bank. 
Appendix,  tit.  "Banking,"  §  139. 

Bonds,  investigation  of  by  superintendent  of  banks.  Appendix,  tit. 
"Banking,"  §  61a. 

Borrowed  monev,  public  moneys  deposited  with  are  not.  Appendix, 
tit.  "Banking,"  §  21a. 

Bonds,  limit  on  power  to  invest  in  or  loan  upon.  Appendix,  tit. 
"Banking,"  §  46. 

Bonds,  limit  on  right  to  purchase.     Appendix,  tit.  "Banking,"  §  36. 

Borrowing  monev  and  pledging  assets,  right  of.  Appendix,  tit. 
"Banking,"  §'21a. 

Branch  offices,  opening  of.     Appendix,  tit.  "Banking,"  §  9. 

Branch  offices,  rights  and  duties  as  to.  Appendix,  tit.  "Banking," 
§9. 

Branch  offices,  word  "branch"  to  appear  on  signs,  advertising,  letter- 
heads, etc.     Appendix,  tit.  "Banking,"  §  2S. 

Building  and  loan  associations  exempted  from  provisions  of  bank  act. 
Appendix,  tit.  "Banking,"  §  12a. 


INDEX.  999 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Building  and  loan  association,  not  to  advertise  itself  as  savings  bank. 
Appendix,  tit.  "Banking,"  §  12. 

Building  and  loan  association,  provisions  of  banking  law  do  not  apply 
to.     Appendix,  tit.  "Banking,"  §§  12,  12a. 

Business  of  banking  to  be  transacted  under  bank  act.  Appendix,  tit. 
"Banking,"  §  12a. 

Business,  proceedings  where  bank  is  doing  dangerous  or  unsafe.  Ap- 
pendix, tit.  "Banking,"  §  184. 

By-laws,  filing  certified  copy  of  with  superintendent  of  banks.  Ap- 
pendix, tit.  "Banking,"  §  8. 

Capital  and  assets  are  security  to  depositors  and  stockholders.  Ap- 
pendix, tit.  "Banking,"  §  21. 

Capital,  impairment  of,  assessment  and  sale  of  stock  in  case  of.  Ap- 
pendix, tit.  "Banking,"  §  133. 

Capital,  impairment  of,  powers  and  duties  of  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  3  53. 

Capital  of  departmental  banks,  increase  of.  Appendix,  tit.  "Bank- 
ing," §  23. 

Capital,  paid  up,  amount  of.     Appendix,  tit.  "Banking,"  §§  12a,  19. 

Capital,  paid-up  capital  required,  repeal  of  provision  relating  to. 
Appendix,  tit.  "Banking,"  §  100. 

Capital  required  of  departmental  banks.  Appendix,  tit.  "Banking," 
§23. 

Capital  sto.ck  of  commercial  banks.     Appendix,  tit.  "Banking,"  §  82. 

Capital  stock,  of  savings  banks.     Appendix,  tit.  "Banking,"  §  60. 

Capita]  stock  paid  in,  must  have.     Appendix,  tit.  "Banking,"  §  12a. 

Capital  stock,  paid-up  value  to  be  indorsed  on.  Appendix,  tit.  "Bank- 
ing," §  53. 

Capital  stock,  par  value  of.     Appendix,  tit.  "Banking,"  §  53. 

Capital  stock,  punishment  of  officers  purchasing  or  loaning  on.  Ap- 
pendix, tit.  "Banking,"  §  34. 

Capital  stock,  purchased  or  carried,  to  be  sold  within  six  months. 
Appendix,  tit.  "Banking,"  §  34. 

Capital  stock,  right  of  bank  to  loan  on.  Appendix,  tit.  "Banking," 
§  34. 

Capital  stock,  right  of  bank  to  purchase  its  own.  Appendix,  tit. 
"Banking,"  §  34. 

Capital  stock  required  in  cities  of  more  than  5,000  and  less  than 
25,000.     Appendix,  tit.  "Banking,"  §  290a,  subd.  b. 

Capital  stock  required  in  cities  of  more  than  25,000  and  less  100,000. 
Appendix,  tit.  "Banking,"  §  290a,  subd.  c. 

Capital  stock  required  in  cities  of  more  than  100,000  and  less  than 
200,000.     Appendix,  tit.  "Banking,"  §  290a,  subd.  d. 

Capital  stock  required  in  cities  over  200,000.  Appendix,  tit.  "Bank- 
ing," §  290a,  subd.  e. 

Capital  stock  required  in  cities  of  less  than  5,000.  Appendix,  tit. 
"Banking,"  §  290a,  subd.  a. 

Capital  stock  required  in  cities  of  more  than  5,000  and  less  than  100,- 
000.     Appendix,  tit.  "Banking,"  §  290a,  subd.  h. 

Capital  stock  required  in  cities  of  more  than  10,000  and  less  than 
25,000.     Appendix,   tit.   "Banking,"  §  290a,   subd.   c. 

Certificate  to  do  business,  duty  of  superintendent  of  banks  before 
issuance  of.     Appendix,  tit.  "Banking,"  §  127. 

Certificate  to  do  business,  stockholders,  examination  of  fitness  before 
issuing.     Appendix,  tit.  "Banking,"  §  128. 

Certificate  to  do  business,  issuance  of  and  transmissions  to  county 
clerk.     Appendix,  tit.  "Banking,"  §  128. 


1000  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.      (Contiuued.) 

Certificate  obtained  from  superintendent  of  banks,  posting  of.  Ap- 
pendix, tit.  "Banking,"  §  .50. 

Certificate  to  do  business  by  superintendent  necessary  before  banks 
do  business.     Appendix,  tit  "Banking,"  §  127. 

Certificate  to  do  business,  examination  as  to  capital  and  surplus  before 
issuing.     Appendix,  tit.  "Banking,"  §  127. 

Certificate  to  do  business,  examination  as  to  character  of  stockholders 
before  issuing.     Appendix,  tit.  "Banking,"  §  128. 

Certificate  to  do  business,  filing  duplicates  in  county  of  principal 
place  of  business  and  in  superintendent's  office.  Appendix,  tit. 
"Banking,"  §  128. 

Certificate  to  do  business,  superintendent  may  withhold,  when.  Ap- 
pendix, tit.  "Banking,"  §  127. 

Certificate  to  do  business,  withholding  where  name  is  similar  to  name 
of  another  bank.     Appendix,  tit.  "Banking,"  §  127. 

Certificates  of  deposit,  partial  payments  not  to  be  made  on.  Ap- 
pendix, tit.  "Banking,"  §  21a. 

Character  of  bank  to  appear  from  signs,  advertising,  letter-heads, 
etc.     Appendix,  tit.  "Banking,"  §  28. 

Checks,  certified,  amount  to  be  charged  against  account.  Appendix, 
tit.  "Banking,"  §  52. 

Checks,   certified,  not  to  be  certified  unless  drawer  has  amount   on 
"deposit  equal  to  cheek.     Appendix,  tit.  "Banking,"  §  52. 

Checks,  certified,  violation  of  statute  relating  to  a  felony.  Appen- 
dix, tit.  "Banking,"  §  52. 

Claim  against  bank,  action  on  when  to  be  brought.  Appendix,  tit. 
"Banking,"  §  136. 

Claims  against  bank,  distribution  of  assets  amongst  claimants.  Ap- 
pendix, tit.  "Banking,"  §  136. 

Claims  against  bank,  lists  of,  making  and  filing  of.  Appendix,  tit. 
"Banking,"  §  136. 

Claims  against  banks,  lists  of,  open  to  inspection.  Appendix,  tit. 
"Banking,"  §  136. 

Claims  against  banks,  objections  to.     Appendix,  tit.  "Banking,"  §  136. 

Claims  against  banks,  presentation  of.  Appendix,  tit.  "Banking,' 
§  136. 

Claims,  liens  or  charges  againsfbank  after  superintendent  of  banking 
has  taken  possession.     Appendix,  tit.  "Banking,"  §  136. 

Classes  of  banks.     Appendix,  tit.  "Banking,"  §  2. 

Clerk  borrowing  funds  from  bank,  punishment  of.  Appendix,  tit. 
"Banking,"  §  33. 

Clerks  not  to  borrow  funds  from  bank.  Appendix,  tit.  "Banking," 
§33. 

Combination  of  savings  and  commercial  banks  and  trust  companies. 
Appendix,  tit.  "Banking,"  §  22. 

Commercial  banks,  building,  furniture,  fixtures,  vaults,  etc.,  amount 
that  may  be  invested  in.     Appendix,  tit.  "Banking,"  §  84. 

Commercial  Ijanks,  buildings  in  which  business  transacted,  investment 
in.  two-thirds  vote  of  directors  necessary.  Appendix,  tit.  "Bank- 
ing," §  8-t.  > 

Commercial  banks,  capital  required.     Appendix,  tit.  "Banking,"  §  82. 

Commercial  banks,  capital   stock  of.     Appendix,  tit.  "Banking"  §  82. 

<^,'ommereial  banks,  directors,  loans  to,  report  of  to  superintendent  of 
banks  and  proceedings  by.     Appendix,  tit.  "Banking,"  §  83. 

Commercial  banks,  directors,  loans  to,  restrictions  on.  Appendix,  tit. 
"Banking,"  §  83. 


INDEX.  1001 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Commercial  banks,  directors,  loans  to,  violation  of  statute  a  felony. 
Appendix,  tit.  "Banking,"  §  83. 

Commercial  banks,  loans,  limit  on.  Appendix,  tit.  "Banking,"  §§  80, 
81. 

Commercial  banks,  meaning  of.     Appendix,  tit.  "Banking,"  §  5. 

Commercial  banks,  computation  of  liabilities  to.  Appendix,  tit. 
"Banking,  §  80. 

Commercial  banks,  deposit  with  other  banks,  superintendent  of  banks 
may  limit.     Appendix,  tit.  "Banking,"  §  85. 

Commercial  banks,  drafts  and  bills  of  exchange,  acceptance  of  and 
regulations  governing.     Appendix,  tit.  "Banking,"  §  80. 

Commercial  banks,  limit  on  right  to  purchase  bondg.  Appendix,  tit. 
"Banking,"  §§  36,  46. 

Commercial  banks,  loans  bv,  limit  on.  Appendix,  tit.  "Banking," 
§  80. 

Commercial,  banks,  loans  by,  regulation  of.  Appendix,  tit.  "Bank- 
ing," §  80. 

Commercial  banks,  loans  on  real  estate  by,  regulations  as  to.  Ap- 
pendix, tit.  "Banking,"  §  47. 

Commercial  banks,  loans  to  officers,  agents  or  employees,  regulations 
governing.     Appendix,  tit.  "Banking,"  §  83. 

Commercial  banks,  loans  to  officers,  agents  or  employees,  violation  of 
regulations  governing,  punishment  for.  Appendix,  tit.  "Bank- 
ing," §  83. 

Commercial  banks,  loans  to  officers,  agents  or  employees,  provisions 
as  to  not  applicable  to  religious  corporations,  clubs,  etc.  Appen- 
dix, tit.  "Banking,"  §  83. 

Commercial  banks  not  to  advertise  or  receive  deposits  as  savings 
banks.     Appendix,  tit.  "Banking,"  §  49. 

Commercial  banks,  reserves  required  of.  Appendix,  tit.  "Banking," 
§20. 

Commercial  bank  violating  provision  as  to  advertising  or  receiving 
deposits  as  savings  banks,  penaltv.  Appendix,  tit.  "Banking," 
§  49. 

Conducting  business  in  unsafe  manner,  proceedings  in  case  of.  Ap- 
pendix, tit.  "Banking,"  §§  134,  135,  136. 

Conformity  to  act  by  existing  corporation.  Appendix,  tit.  "Bank- 
ing," §  145. 

Consolidation  of  banks.     Appendix,  tit.  "Banking,"  §  31a. 

Corporations,  existing,  effect  of  act  on.  Appendix,  tit.  "Banking," 
§  145. 

Corporations  to  conduct  banking,  how  formed.  Appendix,  tit.  "Bank- 
ing," §  3. 

Corporations,  to  what  act  applicable.  Appendix,  tit.  "Banking," 
§§  1,  145. 

Debts,  creation  of,  receiving  deposits,  issuing  certificates  of  deposits, 
checks,  etc.,  is  not.     Appendix,  tit.  "Banking,"  §  55. 

Definition  of  bank.     Appendix,  tit.  "Banking,"  §  2. 

Departmental  banking,  right  of.     Appendix,  tit.  "Banking,"  §  22. 

Departmental  banks,  assets  of  departments  to  be  reserved  for  depart- 
mental depositors  and  creditors.     Appendix,  tit.  "Banking,"  §  27. 

Departmental  banks,  business  to  be  conducted  in  one  building.  Ap- 
pendix, tit.  "Banks,"  §  26. 

Departmental  banks,  capital,  increase  or  decrease  of.  Appendix,  tit. 
"Banking,"  §  23,  subd.  e. 

Departmental  banks,  capital  required.  See  .Appendix,  tit.  "Banking," 
§23. 


1002  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Departmental  banks,  capital  and  surplus,  segregation  and  apportion- 
ment of  and  change  of.     Appendix,  tit.  "Banking,"  §  23. 

Departmental  banks,  certificate  for  each  department,  necessity  for, 
issuance  of,  and  fee  for.     Appendix,  tit.  "Banking,"  §  24. 

Departmental  banks,  deposits  with  other  banks  as  assets  of  respective 
departments.     Appendix,  tit.  "Banking,"  §  2.5. 

Departmental  banks,  deposits  in  departments  and  transfer  of.  Ap- 
pendix, tit  "Banking,"  §  25. 

Departmental  banks,  deposits,  not  to  receive  from  other  depart- 
ments.    Appendix,  tit.  "Banking,"  §  25. 

Departmental  banks,  interchange  of  deposits,  bonds,  securities,  etc., 
between   departments.     Appendix,  tit.  "Banking,"  §  25. 

Departmental  banks,  priority  of  depositors  of  the  several  depart- 
ments.    Appendix,  tit.  "Banking,"  §  27. 

Departmental  banks,  reports  by.     Appendix,  tit.  "Banking,"  §  129. 

Departmental  banks,  reserve  for  each  department.-  Appendix,  tit. 
"Banking,"  §  25. 

Departmental  banks,  separate  accounts  and  investments.  Appendix, 
tit.  "Banking,"  §  26. 

Departmental  banks,  what  necessary  before  doing  business.  Appen- 
dix, tit.  "Banking,"  §  23. 

Department,  new,  opening  of,  procedure  and  fee.  Appendix,  tit. 
"Banking,"  §  24. 

Depository  of  funds  of  bank,  designation  of.  Appendix,  tit.  "Bank- 
ing," §  43. 

Depositary  b^nks,  banks  of  New  York,  Chicago,  Boston,  St.  Louis 
or  Philadelphia  as.     Appendix,  tit.  "Banking,"  §  20. 

Depositary'  banks,  required  capital  and  surplus  of.  Appendix,  tit. 
"Banidng,"  §  20. 

Depositary  banks,  reserves  required  of.  Appendix,  tit.  "Banking," 
§20. 

Depositors  have  prioritv  over  stockholders.  Appendix,  tit.  "Bank- 
ing," §  21.  ^ 

Deposit  by  executor,  guardian,  etc.,  and  relief  from  liability.  Appen- 
dix, tit.  "Banking,"  §  51. 

Deposit  in  trust  for  another,  rights  under.  Appendix,  tit.  "Bank- 
ing," §  16. 

Deposits  by  infants,  how  held  and  paid.  See  Appendix,  tit.  "Bank- 
ing," §  16. 

Deposits  by  married  women,  how  held  and  paid.  Appendix,  tit. 
"Banking,"  §  16. 

Deposit  of  funds  in  another  bank,  right  of.  Appendix,  tit.  "Bank- 
ing," §  43. 

Deposits  of  decedents  in  savings  banks.  See  Estates  of  Decedents; 
Public  Administrators. 

Deposits  by  decedents  under  one  thousand  dollars,  withdrawing  with- 
out administration.     Appendix,  tit.  "Banking,"  §  16. 

Deposits  in  other  baulks,  right  to  make.  Appendix,  tit.  "Banking," 
§43. 

Deposits,  joint.     Appendix,  tit.  "Banking,"  §  16. 

Deposits,  time  of  making,  what  deemed  to  be.  Appendix,  tit.  "Bank- 
ing," §  15. 

Deposits  unclaimed  for  twenty  years,  deposit  of  with  state  treasurer. 
Appendix,  tit.  "Banking,"  §  15. 

Deposits  unclaimed  in  hands  of  superintendent  of  banks,  disposition 
of.     Appendix,  tit.  "Banking,"  §  136, 


INDEX.  1003 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Deposits  unclaimed,  statements  as  to.  Appendix,  tit.  "Banking," 
§15. 

Deposits,  unclaimed  for  twenty  years,  proceedings  in  case  of.  Ap- 
pendix, tit.  "Banking,"  §  15. 

Deposits  with  other  banks  by  departmental  banks  as  assets  of  re- 
spective departments.     Appendix,  tit.  "Banking,"  §  25. 

Deposit  with  state  treasury  to  secure  performance  of  trusts,  penalty 
for  failure  to  comply  with  statute.  Appendix,  tit.  "Banking," 
§98.  ■  . 

Depositors,  capital  and  assets  are  security  for.  Appendix,  tit.  "Bank- 
ing," §  21. 

Depositors  have  priority  over  stockholders.  Appendix,  tit.  "Bank- 
ing," §  21.  ' 

Depositors,  stockholders  as,  priority  of.  Appendix,  tit.  "Banking," 
§  20. 

Depositors  who  are  dead,  or  who  have  not  made  deposits  or  withdraw- 
als for  ten  years,  return  and  publication  of.  Appendix,  tit.  "Bank- 
ing," §  15. 

Director,  ceasing  to  be  stockholder  after  election,  effect  of.  Appen- 
dix, tit.  "Banking,"  §  10. 

Directors,  duty  to  examine  into  bank,  and  powers  in  relation  to. 
Appendix,  tit.  "Banking,"  §  139. 

Directors,  eligibility.     Appendix,  tit.  "Banking,"  §  10. 

Directors,  eligibility  of  executor  or  administrator.  Appendix,  tit. 
"Banking,"  §  10. 

Directors,  eligibility  of  where  bank  organized  without  capital  stock. 
Appendix,  tit.  "Banking,"  §  10. 

Directors,  loans  to  bv  commercial  banks.  Appendix,  tit.  "Banking," 
§83. 

Directors,  meeting  of.     Appendix,  tit.  "Banking,"  §  11. 

Directors  not  to  become  obligors  for  loans  by  bank,  section  repealed. 
Appendix,  tit.  "Banking,"  §  33. 

Directors,  oath  of.     Appendix,  tit.  "Banking,"  §  11. 

Directors,  overdrawing  account  or  receiving  benefit  for  procuring 
loan,  etc.,  a  felony.     Appendix,  tit.  "  Banking,"  §  39. 

Directors,  posting  lists  of,  with  number  of  shares  owned.  Appendix, 
tit.  "Banking,"  §  17. 

Directors,  qualifications  of.     Appendix,  tit.  "Banking,"  §  10. 

Directors,  report  by,  what  is  to  show.  Appendix,  tit.  "Banking," 
§  139. 

Directors,  report,  duty  to  make  and  power  of  superintendent  of  banks 
on  failure  to  make.     Appendix,  tit.  "Banking,"  §  139. 

Directors,  transfer  of  mortgage  of  or  contract  for  sale  of  realty 
to  bank.     Appendix,  tit.  "Banking,"  §  35. 

Dissolution  of  banks,  dividends,  uncalled  for,  payment  into  county 
treasury  and  discharge  of  receiver.  Appendix,  tit.  "Banking," 
§137.  .         _ 

Dissolution  of  banks,  escheat  of  unclaimed  property.  Appendix,  tit. 
"Banking,"  §  137. 

Dissolution  of  banks,  escheat  of  moneys  deposited  with  state  treas- 
urer and  uncalled  for.     Appendix,   tit.   "Banking,"  §  137. 

Dissolution  of  banks,  funds,  payment  of  into  state  treasury  after  five 
years.     Appendix,  tit.  "Banking,"  §  137. 

Dissolution  of  banks,  furnishing  county  treasurer  with  list  of  depos- 
itors or  claimants.     Appendix,  tit.  "Banking,"  §  137. 

Dissolution  of  banks,  investment  of  moneys  deposited  in  state  treas- 
ury.    Appendix^  tit.  "Banking,"  §  137, 


1004  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Dissolution  of  banks,  list  of  depositors,  furnishing  to  county  treas- 
urers.    Appendix,  tit.  "Banking,"  §  137. 

Dissolution  of  banks,  payment  of  escheated  money  to  state  treasurer 
by  county  treasurer.     Appendix,  tit.  "Banking,"  §  137. 

Dissolution  of  banks,  procedure.     Appendix,  tit.  "Banking,"  §  137. 

Dissolution  of  banks,  right  of.     Appendix,  tit.  "Banking,"  §  137. 

Dissolution  of  bank,  superintendent  of  banks  may  bring  action  for, 
when.     Appendix,  tit.  "Banking,"  §  135a. 

Dissolution  of  banks,  withdrawal  of  moneys  deposited  with  state  or 
county  treasurer.     Appendix,  tit.  "Banking,"  §  137,  subd.  4. 

Dividends,  declaring.     Appendix,  tit.  "Banking,"  §  21. 

Dividends,  declaring  by  superintendent  of  banks.  Appendix,  tit. 
"Banking,  §  136. 

Dividends  unclaimed,  disposition  of  by  superintendent  of  banks.  Ap- 
pendix, tit.  "Banking,"  §  136. 

Doing  business  as  a  bank,  prohibition  as  to.  Appendix,  tit.  "Bank- 
ing," §  12. 

Escrow,  right  to  receive  money  in  without  supervision  of  superin- 
tendent of  banks.     Appendix,  tit.  "Banking,"  §  101. 

Existing  corporations,  effect  of  banking  act  on.  Appendix,  tit. 
"Banking,"  §  14.5. 

Failure  or  neglect  to  comply  with  provisions  of  statute,  effect  on  acts 
of.     Appendix,  tit.  "Banking."  §  98. 

Felonies,  what  violations  of  act  are,  §§  32,  35,  38,  39,  65,  67,  subd.  5,  83. 

Filing  certified  copies  of  articles  and  amendments.  Appendix,  tit. 
"Banking,"  §  8. 

Foreign  banks,  oaths  of  managers  or  agents  of.  Appendix,  tit.  "Bank- 
ing," §  11. 

Foreign  banking  corporations,  right  to  do  business.  Appendix,  tit. 
"Banking,"  §  7. 

Foreign  corporations,  not  affected  by  provisions  of  bank  act.  Ap- 
pendix, tit.  "Banking,"  §  12c. 

Foreign  corporation,  designating  superintendent  of  banks  as  agent 
for  service  of  process.     Appendix,  tit.  "Banking,"  §  7. 

Foreign  corporations,  requirements  of.     Appendix,  tit.  "Banking,"  §  7. 

Foreign  corporation,  superintendent,  designated  as  agent  for  service 
of  process,  rights  and  duties.     Appendix,  tit.  "Banking,"  §  7. 

Formation  of  banks,  any  number  of  persons  not  less  than  three  may 
form.     Appendix,  tit.  "Banking."  §  3. 

Impairment  of  capital,  proceedings  in  case  of.  Appendix,  tit.  "Bank- 
ing," §  133. 

Inspection  and  examination  of  banks,  agencies  of  foreign  banks,  ex- 
amination of.     Appendix,  tit.  "Banking,"  §  124. 

Inspection  and  examination  of  banks,  appraisement  of  securities  of 
doubtful  value.     Appendix,  tit.  "Banking,"  §  124. 

Inspection  and  examination  of  banks,  auditor,  appointment  of  to 
■    make  audit.     Appendix,  tit.  "Banking,"  §  124. 

Inspection  and  examination  of  banks,  powers  and  duties  in  relation 
to.     Appendix,  tit.  "Banking,"  §  124. 

Inspection  and  examination  of  title  insurance  companies.  See  Title 
Insurance  Companies. 

Inspection  and  examination  of  trust  companies.  See  Trust  Com- 
panies. 

Interest  unpaid  not  to  be  included  in  calculating  profits  previous  to 
dividends.     Appendix,  tit.  "Banking,"  §  45. 

Investment  of  capital  or  surplus  in  its  own  stock,  provision  as  to. 
Appendix,  tit.  "Banking,"  §  37. 


INDEX.  1005 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Investment  of  capital  or  surplus  in  stocks  of  corporations.     Appen- 
dix, tit.  "Banking,"  §  37. 
Investments   before   passage   of  bank   act,  how   affected.     Appendix, 

tit.  "Banking,"  §  145. 
Kind  of  bank  must  appear  from  its  signs,  advertising,  letter-heads, 

etc.     Appendix,  tit.  "Banking,"  §  28. 
Letters    of   credit,    license   from   superintendent    of   banks    necessary 

before  issuing.     Appendix,  tit.  "Banking,"  §  13. 
Letters  of  credit,  license  to  issue,  fee  for.     Appendix,  tit.  "Banking," 

§  13. 
Letters  of  credit,  what  corporations,  associations  or  partnerships  may- 
issue.     Appendix,  tit.  "Banking,"  §  13. 
Life  insurance  companies,  banking  act  does  not  apply  to.     Appendix, 

tit.  "Banking,"  §  12b. 
Loans  on  stock  of  another  bank,  restrictions  as  to.     Appendix,  tit. 

"Banking,"  §  44. 
Liquidation  by  superintendent  of  banks.     Appendix,  tit.  "Banking," 

§  136. 
Loans  secured  by  first  lien  on  realty,  taxes,  assessments  and  bonds 
not  prior  encumbrances  or  liens.     Appendix,  tit.  "Banking,"  §  57. 
Losses,  charging  to.     Appendix,  tit.  "Banking,"  §  21. 
Meetings  of  directors,  how  often  to  be  held.     Appendix,  tit.  "Bank- 
ing," §  11. 
Misdemeanor,  violating  provisions  of  bank  act  in  relation  to  adver- 
tising as  a  bank.     Appendix,  tit.  "Banking,"  §  12a. 
Mortgage  in  which  officer  interested,  not  to  be  transferred  to  bank. 

Appendix,  tit.  "Banking,"  §  35. 
Mortgage,  punishment  of  officer  transferring  to  bank  when  he  is  in- 
terested.    Appendix,  tit.  "Banking,"  §  35. 
Name  of  unincorporated  bank,  what  to  show.     Appendix,  tit.  "Bank- 
ing," §  13. 
Name,  what  words  must  use  on  letter-heads,  signs,  etc.     Appendix, 

tit.  "Banking,"  §  28. 
National  banks,  examination  of.     Appendix,  tit.  "Banking,"  §  48. 
National  banks,  expense  of  examination  to  be  paid  by  banks,  §  48. 
National  banks  receiving  deposits  to  submit  to  examination,  §  48. 
National  banks,  refusal  to  submit  to  examination,  deposits  by  state 

banks  to  be  withdrawn  from,  §  4S. 
National  reserve  association,   banks  authorized  to  join   or  associate 

with,  §  56. 
National  reserve  association,  bank  joining  may  conform  business  to 

provisions  of  act  of  Congress  creating  it,  §  56. 
National  reserve  association,  right  of  banks  to  invest  in  stock,  §  56. 
Non-stock  corporation,  transferring  into  stock  corporation.     Appen- 
dix, tit.  "Banking,"  §  29. 
Notes  or  bonds,  sale  of  to  bank  by  officer,  employee  or  stockholder, 

a  felony,  §  35. 
Number  of  persons  who  may  form  banking  corporation.     Appendix, 

tit.  "Banking,"  §  3. 
Officer,  agent  or  employee  not  to  purchase  assets  at  discount.     Ap- 
pendix, tit.  "Banking,"  §  42. 
Officer,   agent  or  employee   not   to   purcliase   obligations  at   discount. 

Appendix,  tit.  "Banking,"  §  41. 
Officer^  agent  or  employee  overdrawing  account  by,  a  felony.     Appen- 
dix, tit.  "Banking,"  §  39. 
Officer,   agent   or   employee   purchasing   assets   at   discount,   penalty. 
Appendix,  tit.  "Banking,"  §  42. 


1006  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Officer,  agent  or  employee  purchasing  obligations  at  discount,  penalty 
for.     Appendix,  tit.  "Banking,"'  §  41. 

Officer,  agent  or  employee,  receiving  reward  for  procuring  loan  or  ac- 
commodation, a  felony.     Appendix,  tit.  "Banking,"  §  39. 

Officers  or  employees  not  to  become  borrowers  or  obligors,  repeal  of 
section.     Appendix,  tit.  "Banking,"  §  33. 

Officer  or  employee  overdrawing  account  or  receiving  benefit  for  pro- 
curing loan,  etc.,  a  felony.     Appendix,  tit.  "Banking,"  §  39. 

Officer  or  employee,  transfer  of  mortgage  or  contract  for  sale  of 
realty  to  bank.     Appendix,  tit.  "Banking,"  §  35. 

Officers  or  employees  violating  provisions  of  statute  against  borrow- 
ing, etc.,  provision  repealed.     Appendix,  tit.  "Banking,"  §  33. 

Officers,  provision  as  to  borrowing  funds  repealed.  Appendix,  tit. 
"Banking,"  §  33. 

Overdrafts  of  over  ninety  days  not  allowed  to  stand  as  an  asset. 
Appendix,  tit.  "Banking,"  §  21a. 

Partnership  doing  banking  business,  list  of  partners  and  capital  paid 
in,  provision  as  to  repealed.     Appendix,  tit.  "Banking,"  §  18. 

Penal  liabilities  of  officers  or  emplovers.  Appendix,  tit.  "Banking," 
§§  12a,  33,  34,  3.5,  37,  38,  39,  41,  42,  65,  67,  subd.  5,  83,  126,  127,  143. 

Penalties  or  forfeitures,  attorney-general  maj-  sue  for  on  request  of 
superintendent  of  banks.     Appendix,  tit.  "Banking,"  §  144. 

Penalties,  action  by  attorney  general  to  recover.  Appendix,  tit. 
"Banking,"  §  144. 

Penalties,  compromise  of.     Appendix,  tit.  "Banking,"  §  144. 

"Personal  property,"  meaning  of.     Appendix,  tit.  "Banking,"  §  55. 

Population,  how  ascertained  in  determining  capital  stock  required. 
Appendix,  tit.  "Banking,"  §  290a,  subd.  e. 

Population,  how  determined  where  principal  place  of  business  is  out- 
side city.     Appendix,  tit.  "Banking,"  §  290a,  subd.  e. 

Posting  of  last  certificate  obtained  from  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  50. 

Powers,  privileges,  duties  and  restrictions  conferred  on  banks,  en- 
largement, modification  or  restriction  of  to  conform  to  bank  act. 
Appendix,  tit.  "Banking,"  §  145. 

Preferences  not  to  be  given  to  depositors  or  creditors  by  pledging 
assets.     Appendix,  tit.  "Banking,"  §  21a. 

Provisions  of  bank  act  apply  equally  to  all  bank  corporations.  Ap- 
pendix, tit.  "Banking,"  §  145. 

Publication  of  statement  of  financial  condition,  when  to  be  made  and 
what  to  show.     Appendix,  tit.  "Banking,"  §  132. 

Purchase  of  obligations  of  bank  by  director,  officer  or  employee  for- 
bidden.    Appendix,  tit.  "Banking,"  §  41. 

"Real  estate"  or  "real  property,"  meaning  of.  Appendix,  tit.  "Bank- 
ing," §  55. 

Eeal  estate,  power  to  loan  upon.     Appendix,  tit.  "Banking,"  §  47. 

Real  estate  purchased  by,  purchase  of  by  third  persons,  procedure. 
Appendix,  tit.  "Banking,"  §  54. 

Real  estate  purchased  by,  to  be  sold  within  five  years.  Appendix,  tit. 
"Banking,"  §  54. 

Real  estate  purchased,  right  of  third  person  to  purchase.  Appendix, 
tit.  "Banking,"  §  54. 

Real  estate,  writing  down  of  the  value  of  by  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  54. 

Reports  by  directors  and  what  to  show.  Appendix,  tit.  "Banking," 
§139. 


INDEX.  1007 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Eeports    by    superintendent    of    banks    to    governor.     Appendix,    tit. 
"Banking,"  §  140. 

Reports  by   superintendent  of  banks  prima  facie   evidence.     Appen- 
dix, tit.  "Banking,"  §  142. 

Eeports   to   superintendent   of  banks   by   banks   doing   departmental 
business.     Appendix,  tit.  "Banking,"  §  129. 

Report  to  superintendent  of  banks  by  foreign  banks.     Appendix,  tit. 
"Banking,"  §  130. 

Report  to  superintendent  of  banks,  penalty  for  failure  to  make.     Ap- 
pendix, tit.  "Banking,"  §  138. 

Report   to   superintendent   of  banks,   special   reports.     Appendix,   tit. 
"Banking,"  §  130a. 

Reports   to   superintendent   of   banks,   three   to   be   made   each   year. 
Appendix,  tit.  "Banking,"  §  131. 

Report  to   superintendent   of   banks,   verification   of.     Appendix,   tit. 
"Banking,"  §  130. 

Report  to   superintendent   of  banks,   what   to   slrow.     Appendix,   tit. 
"Banking,"  §  130. 

Reports  to  superintendent  of  banks,  when  to  make.     Appendix,  tit. 
"Banking,"  §130. 

Reserve    falling    below    requirements,    proceedings.     Appendix,    tit. 
"Banking,"  §  20. 

Reserves  required  of  banks.     Appendix,  tit.  "Banking,"  §  20. 

Reserve,  lawful   money  reserve,   amount   of.     Appendix,   tit.   "Bank- 
ing," §  20. 

Reserve,  lawful  money  reserve,  proceedings  where  deficiency  in.     Ap- 
pendix, tit.  "Banking,"  §  20. 

Reserve,  trust  funds  not  to  be   counted  as  part   of.     Appendix,  tit. 
"Banking,"  §  32. 

Reserve,  what  portion   of  profits   paid  into.     Appendix,   tit.   "Bank- 
ing," §  21. 
.     Reserves  of  departmental  banks.     Appendix,  tit.  "Banking,"  §  25. 

Reserve  of  depositary  bank.     Appendix,  tit.  "Banking,"  §  20. 

Reserves,   penalty   for   not   maintaining.     Appendix,   tit.   "Banking," 
§20. 

Reserves,  trust  funds  not  regarded  as  part  of.     Appendix,  tit.  "Bank- 
ing," §  32. 

Resumption  of  business  by  bank  after  superintendent  has  taken  pos- 
session.    Appendix,  tit.  "Banking,"  §  136. 

Safe  deposit,  right  to  conduct.     Appendix,  tit.  "Banking,"  §  30. 

Sale  of  assets  to  another  bank.     Appendix,  tit.  "Banking,"  §  31. 

Sale  of  business,  right  of  and  procedure.     Appendix,  tit.  "Banking," 
§31. 

Sale  of  business,  rights  of  creditors.     Appendix,  tit.  "Banking,"  §  31. 

Savings  bank,  advertising  as,  by  other  banks  forbidden.     Appendix, 
tit.  "Banking,"  §  49. 

Savings  banks,  assets  a  security  to  depositors.     Appendix,  tit.  "Bank- 
ing," §  64. 

Savings  banks,  bonds  or  notes  of  public  utility  commission,  right  to 
purchase  or  loan  money  on.     Appendix,  tit.  "Banking,"  §  61. 

Savings  banks,  capital  paid  up.     Appendix,  tit.  "Banking,"  §  19. 

Savings  banks,  capital  required.     Appendix,  tit.  "Banking,"  §  60. 

Savings  banks,  capital  stock,    increase    or    decrease    of.     Appendix, 
tit.  "Banking,"  §  60. 

Savings  banks,  capital    stock    of.     Appendix,    tit.    "Banking,"  §  60. 
See,  also,  Savings  Banks. 


1008  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Savings  banks,  cash,  amount  to  be  carried  by.    Appendix,  tit.  "Bank- 
ing," §  68. 

Savings  banks,  certificates  of  deposit,  issuance  of  by.     Appendix,  tit. 
"Banking,"  §  63.     ' 

Savings  bank,  creation  of  debt  by,  what  acts  are  not.     Appendix,  tit. 
"Banking,"  §  66. 

Savings   banks,    debts   other   than   for    deposits,   power   to   contract. 
Appendix,  tit.  "Banking,"  §  62. 

Savings  banks,  depositors,  conditions  of  payment  to.     Appendix,  tit. 
"Banking,"  §  64. 

Savings  banks,  deposits,  notice  of  intention  to  withdraw.     Appendix, 
tit.    "Banking,"  §  64. 

Savings  banks,  deposits  of  decedents  in,  authority  of  public  adminis- 
trator.    Appendix,  tit.  "Banking,"  §  68^/2. 

Savings  banks,  deposits  of  decedent  in  may  remain  in.     Appendix, 
tit.   "Banking,"  §  681/2. 

Savings  banks,  deposits,  receiving  from  other  banks.     Appendix,  tit. 
"Banking,"  §  68. 

Savings  banks,  deposits,  time  and  condition  of  repayments.     Appen- 
dix, tit.  "Banking,"  §  64. 

Savings  banks,  deposits  with  other  banks  not  loans.     Appendix,  tit. 
"Banking,"  §  68. 

Savings  banks,  deposits  with  other  banks,  power  to  make.     Appen- 
dix, tit.  "Banking,"  §  68. 

Savings   bank,    deposits    with    banks,    power    as    to.     Appendix,    tit. 
"Banking,"  §  68. 

Savings    bank,   directors    or    officers,    borrowing   by,    a   felony.     Ap- 
pendix, tit.  "Banking,"  §  65. 

Savings  bank,  directors  or  officers,  borrowing  by,  forbidden.     Appen- 
dix, tit.  "Banking,"  §  65. 

Savings    banks,    discounting    or    purchasing   commercial   paper    made* 
eligible   under   federal   reserve    act.     Appendix,   tit.    "Banking," 
§67. 

Savings    banks,    hypothecation    of    securities    forbidden.     Appendix, 
tit.   "Banking,"  §  62. 

Savings  banks  in  schools.     Appendix,  tit.  "Banking,"  §  9. 

Savings  banks,  investments,  advertisements  that  bonds  are  legal  in- 
vestments for.     Appendix,  tit.  "Banking,"  §  61. 

Savings  banks,  investments  made  prior  not  affected.     Appendix,  tit. 
"Banking,"  §  66. 

Savings  banks,  investments,  bonds,  investigation  of  by  superintend- 
ent of  banks.     Appendix,  tit.  "Banking,"  §  61a. 

Savings   banks,   investments,   regulations   governing.     Appendix,   tit. 
"Banking,"  §  61. 

Savings  banks,  investments,  what  property  may  invest  in.     Appen- 
dix,   tit.    "Banking,"  §  67.    , 

Savings  banks,  loans,  indorser  or  guarantor  deemed  to  be  a  borrower. 
Appendix,  tit.   "Banking,"  §  66. 

Savings  bank,  loans,  limit  on  amount  of.     Appendix,  tit.  "Banking," 
§67. 

Savings  banks,  loans,  limit  on  length  of.     Appendix,  tit.  "Banking," 
§67. 

Savings  bank,  loans  not   to  be   made  during  deficiency  in   deposits. 
Appendix,  tit.  "Banking,"  §  68. 

Savings   bank,   loans,   officer   violating   law   as   to,   guilty   of   felony. 
Appendix,  tit.  "Banking,"  §  67. 

Savings  banks,  loans  or  investments  in  violation  of  statute  a  felony. 
Appendix,  tit.  "Banking,"  §  67,  subd.  5. 


INDEX.  1009 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Coutiuued.) 

Savings  banks,  loans  or  investments  not  to  be  made  where  calls  ex- 
ceed deposits  available.     Appendix,  tit.  "Banking,"  §  65. 

Savings  banks,  loans,  renewals  not  affected  by  provisions  of  statute. 
Appendix,  tit.   "Banking,"  §  66. 

Savings  banks,  loans  to  officers  or  employees  in  violation  of  statute, 
penalty  for.     Appendix,  tit.  "Banking,"  §  65. 

Savings  banks,  loans  to  officers  or  employees,  regulations  governing. 
Appendix,  tit.  "Banking,"  §  65. 

Savings  banks,  loans,  what  realty  or  personalty  may  loan  money  on. 
Appendix,  tit.  "Banking,"  §  67. 

Savings  banks,  loans  must  be  on  adequate  security.     Appendix,  tit. 
"Banking,"  §  67.  - 

Savings  banks,  loans  on  realty  or  personalty,  regulations  governing. 
Appendix,  tit.  "Banking,"  §  67. 

Savings  banks,  loans  on  unsecured  notes  forbidden.     Appendix,  tit. 
"Banking,"  §  67. 

Savings    banks,    loan    to    corporation    whose    stock    controlled    by 
directors  of  bank  forbidden.     Appendix,  tit.  "Banking,"  §65. 

Savings   banks,  loans   to   membership   corporation   or  club   of   which 
officers  of  bank  are  members.     Appendix,  tit.  "Banking,"§  65. 

Savings  banks,  losses   may  be   charged  to  and  paid   out   of   reserve 
fund.     Appendix,  tit.  "Banking,"  §  64. 

Savings   banks^  may   borrow  public   moneys   of   state,   counties,   etc. 
Appendix,  tit.  "Banking,"  §  62. 

Savings  bank,  meaning  of.     Appendix,  tit.  "Banking,"  §  4. 

Savings    bank,    new    loans    not    to    be    made    where    large    calls    by 
depositors.     Appendix,  tit.  "Banking,"  §  64. 

Savings  banks,  paid-up  capital  and  surplus,  amount  of  required.     Ap- 
pendix, tit.   "Banking,"  §  19. 

Savings  banks,  paying  depositors  by  drafts  upon  deposits  and  charg- 
ing current  rates  of  exchange.     Appendix,  tit.  "Banking,"  §  62. 

Savings   banks,  paying  regular   customers   by   drafts   upon   deposits. 
Appendix,  tit.  "Banking,"  §  62. 

Savings  bank,  powers  of.     Appendix,  tit.  "Banking,"  §  4. 

Savings  banks,  personal  property,  power  to  deal  in.     Appendix,  tit. 
"Banking,"  §  61. 

Savings  bank,  personal  property,  what  may  be  purchased  or  held  by. 
Appendix,  tit.  "Banking,"  §  61. 

Savings   bank,  power   to   deal  in   realty  and   personalty.     Appendix, 
tit.   "Banking,"  §  62. 

Savings  banks,  property,  what  may  hold.     Appendix,  tit.  "Banking  " 
§61. 

Savings  banks,  property,  what  may  be  purchased  or  held  by.     Appen- 
dix, tit.  "Banking,"  §  61. 

Savings    banks,    real    property,    power    to    deal    in.     Appendix,    tit. 
"Banking,"  §  62. 

Savings  banks,  real  property,  what  may  be  purchased  and  held  by. 
Appendix,  tit.  "Banking,"  §  61. 

Savings  banks,  reserves,  how  kept.     Appendix,  tit.  "Banking,"  §  68. 

Savings    banks,    reserves,    larger    may    be    created.     Appendix,    tit. 
"Banking,"  §  64. 

Savings  banks,  reserves,  new  loans  not  to  be  made  during  deficiency 
in.     Appendix,  tit.  "Banking,"  §  68. 

Savings  banks,  reserve  fund,  amount  of.     Appendix,  tit.  "Banking  " 
§19. 

Savings  banks,  reserve  fund  required  where  no  capital  stock.     Ap- 
pendix, tit.  "Banking,"  §§  60,  64,  08. 
Civ.  Code — 64 


1010  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Savings  banks,  right  to  borrow  money  or  hypothecate  securities. 
Appendix,  tit.  "Banking,"  §  62. 

Savings  banks,  right  to  borrow  public  moneys.  Appendix,  tit. 
"Banking,"  §  62. 

Savings  bank,  securities,  what  may  hold.  Appendix,  tit.  "Banking," 
§61. 

Savings  banks,  surplus,  amount  of.     Appendix,  tit.  "Banking,"  §  19. 

Savings  banks  to  be  conducted  under  provisions  of  bank  act.  Ap- 
pendix, tit.  "Banking,"  §  69. 

Savings  bank,  unlawful  for  commercial  banks  to  advertise  as.  Ap- 
pendix, tit.   "Banking,"  §  49. 

Savings  banks  without  capital  stock,  dividends,  amount  to  be  car- 
ried to  reserve  before  declaring.     Appendix,  tit.  "Banking,"  §  6-1. 

Savings  banks  without  capital  stock,  reserve  of.  Appendix,  tit. 
"Banking,"  §  60. 

Savings  banks  without  capital  stock,  reserve,  excess,  disposal  of. 
Appendix,  tit.  "Banking,"  §  64. 

Savings  bank  without  capital  stock,  reserve  or  balance,  disposal  of 
on   dissolution.     Appendix,   tit.   "Banking."  §  64. 

Schools,  savings  banks  in.     Appendix,  tit.  "Banking,"  §  9. 

State  banking  department,  certificate,  examination  of  fitness  of 
stockholders  before  issuing.     Appendix,  tit.   "Banking,"  §  128. 

State  banking  department,  certificate,  issuance  of  and  transmission 
to  county  clerk.     Appendix,  tit.  "Banking,"  §  128. 

State  banking  department,  creation  of.  Appendix,  tit.  "Banking," 
§  120. 

State  banking  department,  examination  into  foreign  banks.  Appen- 
dix, tit.  "Banking,"  §  124. 

State  banking  department,  examiner,  neglect  to  report  condition  of 
bank   a  felony.     Appendix,   tit.   "Banking,"  §  126. 

State  banking  department,  examiner,  not  to  be  appointed  receiver. 
Appendix,  tit.  "Banking,"  §  12.5. 

State  banking  department,  examiner,  oath  of.  Appendix,  tit.  "Bank- 
ing," §  125." 

State  banking  department,  examiner,  powers  and  duties  of.  Appen- 
dix, tit.  "Banking,"  §  124. 

State  banking  department,  inspection  of  banks.  Appendix,  tit. 
"Banking,"  §  124. 

State  banking  department,  officers  of.  Appendix,  tit.  "Banking," 
§  120. 

State  banking  department,  state  banking  fund,  contribution  of  banks 
to,  how  determined.     Appendix,  tit.  "Banking,"  §  123. 

State  banking  department,  state  banking  fund,  expenses  of  depart- 
ment paid  out  of.     Appendix,  tit.  "Banking,"  §  123. 

State  banking  department,  state  banking  fund,  how  created  and 
where  deposited.     Appendix,  tit.  "Banking,"  §  123. 

State  banking  department,  state  banking  fund,  unexpended  balances 
become  part   of  fund.     Appendix,  tit.  "Banking,"  §  123. 

State  banking  department,  superintendent  of  banks,  appointees, 
number,  salaries,  and  qualifications  of.  Appendix,  tit.  "Bank- 
ing," §  121. 

State  banking  department,  superintendent  of  banks,  appointment, 
term  of  office,  qualifications,  and  salary.  Appendix,  tit.  "Bank- 
ing," §  120. 

State  banking  department,  superintendent  of  banks,  approval  of  and 
certificate  to  bank  transacting  business.  Appendix,  tit.  "Bank- 
ing," §  127. 


INDEX.  1011 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

State  banking  department,  superintendent  of  banks,  chief  deputy, 
appointment,  qualification,  bond  and  oath.  Appendix,  tit. 
"Banking,"  §  121. 

State  banking  department,  superintendent  of  banks,  duty  on  impair- 
ment of  capital  by  bank.     Appendix,  tit.  "Banking,"  §  133. 

State  banking  department,  superintendent  of  banks,  liquidation  of 
bank  by.     Appendix,  tit.  "Banking,"  §  136. 

State  banking  department,  superintendent  of  banks,  may  request  at- 
torney-general to  sue  for  forfeiture,  and  penalties.  Appendix, 
tit.  "Banking,"  §  144. 

State  banking  department,  superintendent  of  banks,  neglect  by,  when 
a  felony.     Appendix,  tit.  "Banking,"  §  143. 

State  banking  department,  superintendent  of  banks,  oath  and  bond 
of.     Appendix,  tit.  "Banking,"  §  120. 

State- banking  department,  superintendent  of  banks,  offices,  furniture, 
fuel,  stationery  and  lights  for.     Appendix,  tit.  "Banking,"  §  122. 

State  banking  department,  superintendent  of  banks,  offices,  where 
located.     Appendix,  tit.  "Banking,"  §  122. 

State  banking  department,  superintendent  of  banks,  proceedings 
where  bank  does  unsafe  business.  Appendix,  tit.  "Banking," 
§§  134,  135. 

State  banking  department,  superintendent  of  banks,  proceedings 
where  bank  violates  law  or  articles  of  incorporation.  Appendix, 
tit.  "Banking,"  §  134. 

State  banking  department,  superintendent  of  banks,  report  of.  Ap- 
pendix, tit.  "Banking,"  §  140. 

State  banking  department,  superintendent  of  banks,  reports  of  are 
prima  facie  evidence.     Appendix,  tit.  "Banking,"  §  142. 

State  banking  department,  superintendent  of  banks,  weekly  bulletin, 
posting  of  and  what  to  contain.     Appendix,  tit.  "Banking,"  §  141. 

Statement  of  resources  and  liabilities,  what  to  show.  Appendix,  tit. 
"Banking,"  §  14. 

Stock,  bank  purchasing  its  own,  stock  to  be  sold  within  what  time. 
Appendix,  tit.  "Banking,"  §  37. 

Stock,  capital,  of  savings  banks.     Appendix,  tit.  "Banking,"  §§  60,  82. 

Stock,  capital,  par  value  of.     Appendix,  tit.  "Banking,"  §  53. 

Stock,  capital,  paid  up,  value  to  be  indorsed  on.  Appendix,  tit 
"Banking,"  §  53. 

Stock,  investment  by  corporations  in  stock  of  corporations.  Appen- 
dix, tit.  "Banking,"  §  37. 

Stock,  loans  upon  its  own,  provision  as  to.  Appendix,  tit.  "Banking," 
§34. 

Stock  of  banks,  limit  on  power  to  loan  on.  Appendix,  tit.  "Bank- 
ing," §  44. 

Stock  of  corporations,  limit  on  right  to  invest  in.  Appendix,  tit. 
"Banking,"  §  37. 

Stock  of  corporations,  officer  violating  statute  in  regard  to  invest- 
ment in,  guilty  of  felony.     Appendix,  tit.  "Banking,"  §  38. 

Stock,  preferred,  banks  not  to  have.     Appendix,  tit.  "Banking,"  §  53. 

Stock,  purchase  of  or  investment  in  its  own  provision  as  to.  Appen- 
dix, tit.  "Banking,"  §§  34,  37. 

Stock,  violation  of  provision  as  to  purchase  of  or  loan  upon  its  own 
stock,  penalty  for.     Appendix,  tit.  "Banking,"  §§  34,  .37. 

Stockholders  as  depositors,  priority  of.  Appendix,  tit.  "Banking," 
§21. 

Stockholders,  capital  and  assets  are  security  for.  Appendix,  tit. 
"Banking,"  §  21. 


1012  INDEX, 

BANKS  AND  BANKING..    II.  Banking  Act  of  1909.     (Continued.) 

Stockholders,  depositors  have  prioritv  over.  Appendix,  tit.  "'Bank- 
iug,"  §  21. 

Stockholder's  liabilitv  cannot  be  waived.  Appendix,  tit.  "Banking," 
§40. 

Stockholders,  list  of.     Appendix,  tit.  "Banking,"  §  17. 

Stockholders,  limitation  of  actions  against  by  superintendent  of  bank. 
Appendix,  tit.  "Banking,"  §  136. 

Stockholders'  meeting,  calling  of  bv  superintendent  of  banks.  Ap- 
pendix, tit.  "Banking,"  §  135. 

Superintendent  of  banks,  appointment  and  term  of  office.  Appendix, 
tit.  "Banking,"  §  120. 

Superintendent  of  banks,  authority  of  where  bank  ceases  to  do  busi- 
ness and  rights  of  bank.     Appendix,  tit.  "Banking,"  §  136a. 

Superintendent  of  banks,  chief  deputy  or  examiner  not  to  be  bor- 
rowers.    Appendix,  tit.  "Banking,"  §  121. 

Superintendent  of  banks,  chief  deputy  of,  qualifications  of.  Appen- 
dix, tit.  "Banking,"  §  121. 

Superintendent  of  banks,  chief  deputy,  powers  and  duty  in  absence 
of  superintendent,  inability  to  act  or  vacancy  in  office.  Ap- 
pendix, tit.  "Banking,"  §  121. 

Superintendent  of  banks,  chief  deputy,  salary  and  oath.  Appendix, 
tit.  "Banking,"  §  121. 

Superintendent  of  banks,  chief  officer  of  state  banking  department. 
Appendix,  tit.  "Banking,"  §  120. 

Superintendent  of  banks,  emploA'ees  of,  enumerated.  Appendix,  tit. 
"Banking,"  §  121. 

Superintendent  of  banks,  employees  of,  limit  upon  expenditures  for. 
Appendix,  tit.  "Banking,"  §  121. 

Superintendent  of  banks,  employees  of,  not  to  be  interested  in  banks. 
Appendix,  tit.  "Banking,"  §  121. 

Superintendent  of  banks,  employees  of,  salaries  of.  Appendix,  tit. 
"Banking,"  §  121. 

Superintendent  of  banks,  investigation  of  bonds  for  investment  by 
savings  banks.     Appendix,  tit.  "Banking,"  §  61a. 

Superintendent  of  banks  may  limit  amount  of  deposits  by  commercial 
banks  with  other  banks.     Appendix,  tit.  "Banking,"  §  85. 

Superintendent  of  banks  may  take  possession  of  bank,  when.  Appen- 
dix, tit.  "Banking,"  §  136. 

Superintendent  of  banks,  neglect  by,  provision  as  to  repealed.  Ap- 
pendix, tit.  "Banking,"  §  143. 

Superintendent  of  banks,  not  to  be  interested  in  any  bank.  Appen- 
dix, tit.  "Banking,"  §  120. 

Superintendent  of  banks,  oath  and  bond  of.  Appendix,  tit.  "Bank- 
ing," §  120. 

Superintendent  of  banks,  salary  of.     Appendix,  tit.  "Banking,"  §  120. 

Superintendent  of  banks  taking  possession  of  bank,  powers  and  duties 
of.     Appendix,  tit.  "Banking,"  §  136. 

Superintendent  of  banks  taking  possession,  right  of  bank  to  apply 
to  superior  court  to  enjoin.     Appendix,  tit.  "Banking,"  §  136. 

Surplus,  charging  losses  to.     Appendix,  tit.  "Banking,"  §  21. 

Surplus,  converting  into  paid-up  capital  stock.  Appendix,  tit.  "Bank- 
ing," §  21. 

Surplus,  larger,  creation  of.     Appendix,  tit.  "Banking,"  §  21. 

Surplus,  amount  of.     Appendix,  tit.  "Banking,"  §  19. 

Surplus,  what  portion  of  profits  paid  into.  Appendix,  tit.  "Bank- 
ing," §  21. 


INDEX.  1013 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Term  "bank,"  wlio  may  not  use.     Appendix,  tit.  "Banking,"  §  12. 

Title  of  act.     Appendix,  tit.  "Banking,"  §  1. 

Title  insurance  companies.     See  Title  Insurance  Companies. 

Trust  companies  doing  title  insurance  business  not  to  do  banking 
business.     Appendix,  tit.  "Banking,"  §  22. 

Trust  companies,  bond,  not  required  to  give.  Appendix,  tit.  "Bank- 
ing,'' §  94. 

Trust  companies,  capital,  amount  paid  up  required  before  certificate 
issued.     Appendix,  tit.  "Banking,"  §  100. 

Trust  companies,  capital  required  where  doing  a  banking  business. 
Appendix,  tit.  "Banking,"  §  106. 

Trust  companies,  compensation  of.     Appendix,  tit.  "Banking,"  §  90. 

Trust  companies,  confidential  communications,  disclosures  of.  Ap- 
pendix, tit.  "Banking,"  §  10.3. 

Trust  companies  defined.     Appendix,  tit.  "Banking,"  §  6. 

Trust  companies,  departmental  business,  doing,  to  comply  with  pro- 
visions governing  the  departments.  Appendix,  tit.  "Banking," 
§106. 

Trust' companies,  deposit  of  money  in  by  executor,  assignee,  receiver, 
etc.,  on  order  of  court  and  discharge  of.  Appendix,  tit.  "Bank- 
ing," §  91. 

Trust  companies,  deposit  of  money  in,  by  public  administrator,  with- 
drawal of,  and  discharge  of  administrator.  Appendix,  tit. 
,     "Banking,"  §§  92,  93. 

Trust  companies,  deposit  of  personal  assets  in  by  executor,  guardian, 
receiver,  etc.,  and  reduction  of  bond.  Appendix,  tit.  "Banking," 
§93. 

Trust  companies,  deposits  with  treasurer.  Appendix,  tit.  "Banking," 
§§  96,  97. 

Trust  companies,  deposits  with  treasurer,  abstracts  of  title  in  case 
of.     Appendix,  tit.  "Banking,"  §  99. 

Trust  companies,  interest  on  deposit  with  treasurer,  right  to  receive. 
Appendix,  tit.  "Banking,"  §  98. 

Trust  companies,  interest  payable  by.  Appendix,  tit.  "Banking," 
§95. 

Trust  companies,  investments,  laws  governing.  Appendix,  tit.  "Bank- 
ing," §  105. 

Trust  companies,  investments,  liability  for.  Appendix,  tit.  "Bank- 
ing," §  94. 

Trust  companies,  mortgage  of  realty  to  state  treasurer.  Appendix, 
tit.  "Banking,"  §  97. 

Trust  companies  not  to  advertise  as  savings  bank.  Appendix,  tit. 
"Banking,"  §  49. 

Trust  companies,  oath  and  affidavit  of,  how  taken.  Appendix,  tit. 
"Banking,"  §  90. 

Trust  companies,  ofiS.cers,  liability  of.     Appendix,  tit.  "Banking,"  §  90. 

Trust  companies,  report  of  trusts  held.  Appendix,  tit.  "Banking," 
§101. 

Trust  companies,  retirement  from  business,  showing  required  and 
proceedings  on.     Appendix,  tit.  "Banking,"  §  102. 

Trust  companies,  "trust,"  efifeet  of  use  of  word.  Appendix,  tit. 
"Banking,"  §  104. 

Trust  companies,  "trust,"  use  of  word  prohibited  to  whom.  Appen- 
dix, tit.  "Banking,"  §  104. 

Trust  companies,  what  companies  are.  Appendix,  tit.  "Banking," 
§90, 


1014  INDEX. 

BANKS  AND  BANKING.     II.  Banking  Act  of  1909.     (Continued.) 

Trust  companies,  what  companies  may  act  as  trustee.  Appendix,  tit. 
"Banking,"  §  90. 

Trust  companies.     See  Trust  Companies. 

Trust  department,  deposits  by  with  other  departments.  Appendix, 
tit.  "Banking,"  §  25. 

Trustees  under  deeds  of  trust  not  subject  to  supervision  of  superin- 
tendent  of  banks.     Appendix,   tit.   "Banking,"  §  101. 

"Trustee,"  use  of  a  misdemeanor.     Appendix,  tit.  "Banking,"  §  104. 

Trust  funds  not  to  be  counted  as  part  of  reserve.  Appendix,  tit. 
"Banking,"  §  32. 

Trust  funds  not  to  be  mingled  with  other  assets.  See  Appendix,  tit. 
"Banking,"  §  32. 

Trust  funds,  violation  of  provisions  as  to  mingling  a  felonv.  Appen- 
dix, tit.  "Banking,"  §  32. 

Trusts,  inspection  and  supervision  of.  Appendix,  tit.  "Banking." 
§101. 

Trusts,  private,  direction  that  it  be  subject  to  provisions  of  bank  act. 
Appendix,  tit.  "Banking,"  §  101. 

Unincorporated,  provision  as  to  repealed.  Appendix,  tit.  "Banking," 
§  13. 

Violation  of  law  bv  bank,  proceedings  in  case  of.  Appendix,  tit. 
"Banking,"  §  131. 

Who  subject  to  provisions  of  bank  act.  Appendix,  tit.  "Banking," 
§  12a. 

BASTARDS.     See  Legitimacy. 

Acknowledging,  and  receiving  into  family,  effect  of,  §§  230,  13S7. 
Acknowledgment  of,  inheritance  by  and  from  in  case  of,  §  1387. 
Adoption  of,  §§  224,  280. 
Children,    legitimate    where    divorce   granted    or   marriage    annulled, 

§§  84,  1387. 
Custody  and  earnings  of,  mother  entitled  to,  §  200. 
Father,  ordering  maintenance  of  by,  §  196a. 
Father  as  well  as  mother  liable  for  support  of,  §  196a. 
Heir  to  mother,  §  1387. 

Heir  to  one  acknowledging  himself  to  be  father,  §  1387. 
Inheritance  by,  §  1387. 
Inheritance  from,  §  1388. 

Kindred  of  parents  when  only  inherits  from,  §  1387. 
Legitimation  of,  §  230. 

Legitimized  by  marriage  of  parents,  §  215. 
Proof  of  illegitimacy,  §  195. 

BELL. 

Sounding,  duty  and  liability  of  railroad  respecting,  §  486. 

BENEFICIARY.     See  Trusts. 

BENEFIT. 

Consent  of  party  entitled  to,  necessary  to  transfer  of  burden,  §  1457. 

He  who  takes  must  bear  burden,  §  3521. 

Voluntary  acceptance  of,  is  assumption  of  burden,  §  1589. 

BENEFIT  CORPORATIONS.     See  Eeligious,  Social,  and  Benevolent  Cor- 
porations. 
Articles  of  incorporation,  what  to  set  out,  §  594. 

Consolidation  of  debts  by  several  corporations  other  than  for  profit, 
procedure  for,  §  605, 


INDEX.  1015 

BENEFIT  CORPORATIONS.      (Continued.) 

Consolidation  of.     See  Religiou.s,  Social  and  Benevolent  Corporations. 

Cumulative  voting,  §  307. 

Directors  or  trustees,  number  of,  §  305. 

Fraternal  societies  exempt  from  insurance  laws,  §  451. 

Insurance,  mutual  life,  etc.,  §§  437-452.  See  Mutual  Benefit  and  Life 
Associations;  Mutual  Life,  Health,  Accident  and  Annuity  Insur- 
ance on  Assessment  Plan. 

Records  to  be  open  to  inspection,  §  378. 

BENEFIT  SOCIETIES.  See  Mutual  Benefit  and  Life  Associations;  Mu- 
tual Benefit  Societies;  Mutual  Life,  Health,  Accident  and  An- 
nuity Insurance  on  Assessment  Plan. 

Not  governed  by  laws  relating  to  insurance  corporations,  §  451. 

Not  governed  by  laws  relating  to  mutual  assessment  corporations, 
§  453p. 

Not  insurance  corporations,  §  451. 

BENEVOLENT  ASSOCIATIONS.  *  See  Benefit  Societies;   Religious,  So- 
cial, and  Benevolent  Corporations. 
Bequests  to,  limitation  on  power  to  make,  §  1313. 
Not  governed  by  laws  relating  to  insurance  corporations,  §  451. 
Not  insurance  corporations,  §  451. 

BICYCLE. 

As  baggage,  §  2181. 

BIGAMY. 

Ground  for  nullifying  marriage,  §  82. 

BIDS.     See  Auctions;  Sales. 

BILL  OF  EXCHANGE.     See  Negotiable  Instruments. 

BILL  OF  LADING. 

Anv  reasonable  number  to  be  given  consignor,  §  2130. 

Assignment  of,  §§  2127,  2128. 

Bona  fide  holders,  rights  of,  §  2127. 

Carrier  may  demand  surrender  before  delivery,  §  2132. 

Carrier  not  liable  for  more  than  value  stated  in,  §  2200. 

Conditions  in  limiting  liability,  effect  of,  §  2176. 

Consignor  entitled  to,  §  2130. 

Defined,  §  2126. 

Delivery  to  holder  of,  exonerates  carrier,  §  2131. 

Effect  of  accepting  from  carrier,  §  2176. 

Effect  of  on  carrier's  rights  and  duties,  §  2129. 

Indorsement  and  transfer  of,  §§  2127,  2128. 

Indorsement,  delivery  without,  where  payable  to  bearer,  §  2128. 

Limitations  in,  effect  of,  §  2176. 

Limitations  in,  signature,  when  necessary,  §  2176. 

Negotiable,  is,  §§  2127,  2128. 

Refusal  to  give,  effect  of,  §  2130. 

Refusal  to  give  to  consignor,  liability,  §  2130. 

Surrender  of,  carrier  may  demand  before  delivery,  §  2132. 

Title  to  freight  passes  to  indorsee,  §  2127. 

To  be  given  consignor,  §  2130. 

To  trulv  express  contract  of  carriage,  §  2130. 

Transfer  of  by  delivery,  §  2128. 


1016  INDEX. 

BILL  OF  SALE. 

Grant  includes,  §  1053. 

BILLS  AND  NOTES.     See  Negotiable  Instruments. 

BISHOP. 

Mar  become  a  corporation  sole,  §  G02-. 

BLANK 

Liability  of  one  signing  negotiable  instrument  in  blank,  §  3125. 

BOARDINa-HOUSE  KEEPER.     See  Innkeepers. 

BOARDS  OF  TRADE.     See  Chambers  of  Commerce,  Boards  of  Trade  and 

Mechanics'  Institutes. 
Act  validating   acknowledgments   by.     Appendix,   tit.   "Acknowledg- 
ments." 

BONA  FIDE  PURCHASER. 

Apparent  principal   cannot   show  "lie  is  surety  against,  §  2382. 

Bill  of  lading,  of,  rights  of,  §  2127. 

Contract  not  reformed  as  against,  §  3399. 

Deed  cannot  be  shown  to  be  subject  to  defeasance,  as  against,  §  2925. 

Grant  not  conclusive  against,  §  1107. 

Grant  of  propertv  subject  to  trust,  when  deemed  absolute  in  favor 

of,  §  869. 
Implied  or  resulting  trust  not  to  affect,  §  856. 
Mortgagee,  rights  against  unrecorded  conveyance,  §  1214. 
Negotiable   instrument,   of,   not   affected   bv   want   of   consideration, 

§3122. 
Negotiable  instrument,  of,  rights   of,  §§  3124,  3125. 
Negotiable  instrument,  of,  who   is,  §  3123. 
Presumption  in  favor  of.  on  purchase  of  propertv  from  husband  or 

wife,  §  164. 
Eevocation  of  gift  causa  mortis,  effect  on,  §  1151. 
Eights  of,  as  against  unrecorded  instrument,  §§  1107,  1214. 
Specific  performance  in  case  of,  §  3395. 

Title  of,  from  one  claiming  by  succession,  effect  of  will,  §  1364. 
Title  of  on  purchase  from  one  in  possession,  §  1142. 
Trustee,  from,  rights  where  trust  omitted  from  conveyance,  §  869. 
Vendor's  lien  does  not  affect,  §  3048. 

BONDS.     See  Guaranty;  Indemnity;  Suretyship. 

As  legal  investments  for  savings  banks.  Appendix,  tit.  "Banking," 
§§  61,  61a. 

Building  and  loan  corporations  may  invest   in  what,  §  647. 

Burned,  of  corporation,  proceedings  to  duplicate,  §  329. 

Cemeteries,  corporations  may  issue,  §  611. 

Corporations  for  giving,  act  governing.     Appendix,  tit.  "Bonds." 

Indemnity,  bond  of,  on  re-establishing  destroj'ed  negotiable  instru- 
ment, §  3415. 

Indemnity  on  transfer  of  stock  by  non-resident,  §  326. 

Insurance  companies  may  invest  funds  in  what  bonds.  §  421. 

Issuance  by  corporation,  restrictions  upon,  §§  359,  456. 

Mortgage  insurance  corporations  may  invest  in  what  bonds,  §  453ee. 

Negotiable  instrument,  is.  §  3095. 

Non-residents,  may  be  required  of,  on  transfer  of  stock,  §  326. 

Negotiable,  bonds  payable  to  bearer  are,  notwithstanding  conditions 
in  instrument  securing  same,  §  3088. 

Eailroad  may  issue,  §  456, 


INDEX.  1017 

BONDS.     (Continued.) 

Eailfoad,  sinking  fund  to  pay,  §  457. 

Savings  and  loan  corporations  may  invest  in  what,  §  574. 

Sureties  on,  when  are  called  bail,  §  2780. 

BOOKS. 

Mining  corporation,  of.     See  Mining  Corporations. 
Of  corporation.     See  Corporations,  XI. 

BORROWER.     See  Hiring;  Loan. 

BOTTOMRY. 

Change  of  possession  not  necessary,  §  3440. 

Defined,  §  3017. 

Due,  loan  becomes,  when,  §  3026. 

Insurable  interest  is  reduced  by,  §  2660. 

Interest,  court  may  reduce  rate  if  exorbitant,  §  3022. 

Interest,  rate  of,  that  may  be  charged,  §  3022. 

Is  subject  to  law  of  liens,  §  2877. 

Laches,  lien  lost  by,  §  3027. 

Lender's  rights  when  no  necessity  of  bottomry  existed,  §  3023. 

Lien  is  independent  of  possession,  §  3027. 

Lien  lost  if  not  enforced  in  reasonable  time,  §  3027. 

Lien,  priority  over  others,  §  3028. 

Liens,  priority  between,  §§  2897,  3029. 

Liens,  subject  to  provisions  of  chapter  on,  §  2877. 

Master,  right  of,  to   hypothecate   freight-money,  §  3021. 

Master,  right  of,  to  hypothecate  ship,  §§  3019,  3020. 

Not  affected  by  law  of  mortgages,  §  2942. 

Owner's  right  to  hypothecate  ship,  §  3018. 

Owner,  right  of,  to  hypothecate  freightage,  §  3018. 

Personal  liability,  stipulation  for,  void,  §  3024. 

Preference  over  other  liens,  §  3028. 

Priority  between  bottomry  liens,  §§  2897,  3029. 

Recovery  in  case  of  total  or  partial  loss,  §  3023. 

Recovery  of  money  loaned,  §  3025. 

Respondentia.     See  Respondentia. 

Value  in  marine  insurance  where  hj'pothecation  by,  §  2736. 

BOUNDARY. 

Coterminous  owners  bound  to  maintain,  §  841. 

Miping  claims,  of.     See  Mines  and  Mining. 

Road  as,  §  831. 

Street  as,  §  831. 

Transfer  of  land  bounded  by  highway  passes  what,  §  1112. 

Waters  as,  rights  of  owners,  §  830. 

Ways  as,  §  831. 

BREACH  OF  PROMISE. 

Chastity,  want  of,  justifies,  §  62. 
To  marry,  damages  for,  §  3319. 

BRIDGE. 

Rights  and  duties  of  wagon-road  corporation  concerning,  §  514. 
Statutes  governing  bridge  corporations  apply  where  owned  bv  indi- 
vidual, §  531. 
Water  company's  duty  to  maintain,  §  551. 

BRIDGE,  FERRY,  WHARF,  CHUTE,'  AND  PIER  CORPORATIONS. 

Annual   report,   penalty   for   failure   to   make,  and  action   hy   district 
attorney  for,  §  530. 


.1018  INDEX. 

BRIDGE,    FERRY,    WHARF,    CHUTE,    AND    PIER    CORPORATIONS. 

(Continued.) 
Annual  report,  president  and  secretary  to  make;  §  530. 
Annual  report,  publication  of,  §  530. 
Annual  report,  what  to  contain,  §  530. 
Commencement  and  completion,  time  for,  §  529. 
Corporate  existence  ceases,  in  what  contingencies,  §  529. 
Destruction,  time  for  reconstruction,  §  529. 
Ferry  to  be  running  within  what  time,  §  529. 
Franchises,  when  forfeited,  §  529. 
License  to  be  obtained  from  supervisors,  §  528. 
Non-user,  effect  of,  §  529. 
Report,  failure  to  make,  penalty  for,  §  530. 
Report,  failure  to  make,  proceedings  in  case  of,  §  530. 
Report,  publication  of,  §  530. 
Report  to  be  made  annually,  §  530. 
Report,  what  to  show,  §  530. 
Report,  who  to  make,  §  530. 
Statutes  relating  to,  apply  where  bridge,  ferrj-,  wharf,  chute,  or  pier 

built  by  private  individual,  §  531. 
Tolls  not  to  be  taken  until  supervisors  grant  authority,  §  528. 
Works  to  be  completed  and  in  running  order,  in  what  time,  §  529. 

BROKER.     See  Agency. 

Real  estate,  statute  of  frauds,  effect  of,  on  agreement  employing, 
§  1624. 

BUILDING  AND  LOAN  CORPORATIONS.  See  Savings  and  Loan  Cor- 
porations. 

Act  relating  to  non-profit  co-operative  corporations  does  not  apply  to, 
§  653za. 

Articles  of  incorporation,  what  to  state,  §  633. 

Business  of  accumulating  savings  of  shareholders  and  loaning  same 
to  be  carried  on  under  this  title,  §  644. 

Capital,  of  what  consists  and  how  accumulated,  §  634. 

Capital  stock,  guaranty  or  nonwithdrawable,  amount  to  be  issued  be- 
fore installment  or  full  paid  investment  certificates  issued,  §  634, 
subd.  e. 

Capital  stock,  may  be  formed  without,  §  648a. 

Capital  stock,  without,  working  capital  accumulated  by  membership 
shares,  §  648a. 

Capital  stock.     See  post,  Shares,  this  subject. 

Certificates  of,  what  to  state,  §  633. 

Certificates  of  stock,  taxation  on  issuance  of,  §  6481-^. 

Checking  accounts  not  to  be  carried  by,  §  633. 

Co-operative  business  associations,  provisions  relating  to  do  not 
apply  to,  §  653  1. 

Corporations,  what  included  as,  §  648. 

Dividends,  providing  fund  for,  §  641. 

Directors,  illegal  loans  by,  punishment  for,  §  637. 

Directors,  loans  to  forbidden, §  637. 

Directors,  majoritv  may  be  selected  from  holders  of  guarantee  stock, 
§  634,  subd.  f." 

Election  to  continue  business  under  code,  rights  and  liabilities,  §  646. 

Exempt  from  execution,  shares  up  to  $1,000,  are,  §  643. 

Foreign,  deposit  by,  securities  may  be  withdrawn  and  others  sub- 
stituted, §  646. 

Foreign,  deposit  required  of,  §  646.  • 


INDEX.  1019 

BUILDING  AND  LOAN  CORPORATIONS.     (Continued.) 

Foreign,  fund  deposited  to  be  paid  only  to  residents  on  final  judg- 
ments, §  646. 

Foreign,  non-compliance  with  statute,  agent  doing  business  guilty  of 
misdemeanor,  §  646. 

Foreign,  guarantee  fund  for  protection  of  residents,  §  646. 

Foreign,  license  and  fee  before  doing  business,  §  646. 

Formation  of,  authorized,  §  633. 

Free  shares,  payment  of,  §  636. 

Free  shares,  retiring,  §  635. 

Free  shares,  what  are,  §  634. 

Guarantee  stock,  may  be  formed  without,  §  648a. 

Guarantee  stock,  without,  issuing  membership  shares  in  place  of, 
§  648a. 

Guarantee  stock,  without,  working  capital  accumulated  by  member- 
ship shares,  §  648a. 

Guarantee  stock.     See  post.  Shares,  this  title. 

Includes  what  corporations,  §  648. 

Infant  may  hold  shares  through  parent,  guardian,  etc.,  §  643. 

Installment  stock,  retirement  of,  §  635. 

Investments,  limit  on  amount  of,  §  647. 

Investments  may  be  made  in  what  securities,  §  647. 

Investments,  supervision  and  control  of,  §  647. 

Loans  by,  limit  on  right  to  make,  §  637. 

Loans,  interest  on,  §  638. 

Loans,  repayment  of,  §  638. 

Loans,  security  for,  §  638. 

Loans,  maturity  on  default  in  paj'ment,  applying  withdrawal  value, 
§639. 

Loans,  maturity  on  default  in  payment,  option  as  to,  §  639. 

Maturity  of  stock,  §  636. 

May  sell,  lease,  or  mortgage  property  purchased,  §  640. 

Member,  how  one  becomes,  §  643. 

Member,  infant  may  hold  shares  in,  through  parent,  guardian,  etc., 
§643. 

Members,  who  may  become,  §  643. 

Membership  shares,  formation   of  with,  authorized,  §  648a. 

Membership  shares,  reincorporation  and  issuance,  authorized,  §  648a. 

Membership  shares,  reincorporation  and  issuance  of,  procedure  on, 
§  648a. 

Membership  shares,  rights,  liabilities,  powers,  and  privileges,  §  648a. 

Membership  shares,  value  of,  §  648a. 

Matured  shares,  business  may  be  taken  over  if  demands  unpaid  for 
two  years,  §  642a. 

Matured  shares,  receipts  to  be  applied  to  if  unpaid  for  a  year,  §  642a. 

Officers,  loans  illegal  by,  punishment  for,  §  637. 

Officers,  loans  to,   forbidden,  §  637. 

Official  supervision  and  control  of,  §  644. 

Payment,  arrears  in,  forfeiture  for,  §  639. 

Payment,  arrears  in,  option  to  declare  loan  due  and  proceedings  to 
collect,  §  639. 

Payment,  arrears  in,  option  to  declare  loan  due,  withdrawal  value  to 
be  applied,  §  639. 

Payment,  arrears  in,  proceedings  on,  §  639. 

Payment  of  free  shares,  §  636. 

Perjury,  false  statements  in  reports,  §  645. 

Purposes  of,  §  633. 

Profits  and  losses,  apportionment  of,  §  641. 


1020  INDEX. 

BUILDING  AND  LOAN  CORPORATIONS.     (Continued.) 

Real  estate  upon  which  it  has  a  mortgage,  may  purchase,  §  640. 

Real  estate  upon  which  it  has  a  mortgage,  may  sell,  lease,  or  convey 
§  640. 

Eeincorportion  and  issuance  of  membership  shares,  §  648a. 

Report,  annual,  delivering  to  members,  §  644. 

Report,  annual,  verification,  §  644. 

Report,  copies  to  be  given  shareholders,  §  64.5. 

Report,  failure  to  make,  penalties  for,  and  disposition  of,  §§  644,645. 

Report,  false  statement  in,  perjury,  §  645. 

Report,  further,  bank   commissioners  may   require,  §  644. 

Report,  further,  form  and  contents  of,  §  645. 

Report,  further,  when  to  be  made,  §  645. 

Report,  to  be  made  annually,  §  645. 

Report,  verification  of,  §  645. 

Report,  what  to  show,  §  645. 

Reserve  fund,  amount  of  and  how  provided,  §  641. 

Reserve  fund,  at   all  times  available  for  losses,  §  641. 

Reserve  fund  required  of,  §  634,  subd.  e. 

Retirement  of  free  shares,  §  635. 

Retirement  of  installment  stock,  §  635. 

Shareholders,  issuance  of  certificates  to,  §  634. 

Shares,  capital  to  be  divided  into,  §  634. 

Shares,  dividends  on,  §  634. 

Shares,  exemption   from  execution,  §  643. 

Shares,  free,  payment  of,  §  636. 

Shares,  free,  retiring,  §  635. 

Shares,  free,  what  are,  §  634. 

Shares,  full  paid,  issuance  of  in  classes,  §  634. 

Shares,  full  paid,  rights  of  holder  of,  §  634. 

Shares,  full  paid,  what  are,  §  634. 

Shares,  guarantee,  majority  of  directors  mav  be  selected  from  holders 
of,  §  634,  subd.  f. 

Shares,  guarantee,  may  be  formed  without,  §  648a 

Shares,  guarantee,  without,  issuing  membership  shares  in  place  of, 
§  648a. 

Shares,  guarantee,  without  working  capital  accumulated  by  member- 
ship shares,  §  648a. 

Shares,  guarantee  stock,  conditions  and  liabilities  attaching  to,  §  634, 
subd.  d. 

Shares,  guarantee  stock,  remains  as  fixed,  permanent  and  guarantee 
capital,  §  634,  subd.  d. 

Shares,  guarantee  stock,  to  be  kept  unimpaired,  §  634,  subd.  d. 

Shares,  guarantee  stock,  what  is,  §  634,  subd.  d. 

Shares,  how  paid  for,  §  634. 

Shares,  installment,  either  serial  or  permanent,  §  634. 

Shares,  in  what  form  may  be  issued,  §  634. 

Shares,  juvenile,  what  are,  §  634. 

Shares,  matured  and  canceled,  §  636. 

Shares,  matured,  payment  of,  §  636. 

Shares,  minor  may  hold,  §  643. 

Shares,  pass-books  or  juvenile,  fees,  fines  or  forfeitures  not  charge- 
able against,  §  634,  subd.  c. 

Shares,  pass-books  or  juvenile,  matured  value  of,  §  634,  subd.  c. 

Shares,  pass-books  or  juvenile,  what   are,  §  634,  subd.  c. 

Shares,  pass-booksor  juvenile,  withdrawal  of .  §  634,    subd.   c. 

Shares,  pass-book,  what  are,  §  634. 


INDEX.  1021 

BUILDING  AND  LOAN  CORPORATIONS.     (Continued.) 

Shares,  permanent,  dividends  may  be  credited  in  pass-books  of  mem- 
bers, §  634. 

Shares,  permanent,  may  be  issued  any  time,  §  634. 

Shares,  prior  series,  not  to  be  issued  after  issue  of  shares  of  new 
series,  §  634. 

Shares,  pledged,  what  are,  §  634. 

Shares,  serial,  dues  on,  §  634. 

Shares,  serial  or  permanent,  issuance  in  classes,  §  634. 

Shares  surrendered  or  canceled  become  property  of  association  and 
may  be  reissued,  §  634. 

Shares  up  to  $1,000  exempt  from  execution,  §  643, 

Supervision  and  control  of,  §  644. 

What  corporations  are,  §  648. 

Withdrawal,  amount  one  is  entitled  to  receive  on,  §  642. 

Withdrawal,  manner  of,  §  642. 

Withdrawal  of  free  shares  or  certificates,  receipts  to  be  applied'  to 
demands  unpaid  for  year,  §  642a. 

Withdrawal  of  free  shares  or  certificates,  business  may  be  taken  over 
if  demands  unpaid  for  two  years,  §  642a. 

Withdrawal  of  part  of  accumulations  without  reducing  number  of 
shares,  §  643. 

Withdrawal,  right  of,  generally,  §  642. 

Withdrawal,  right  of,  where  stock  pledged,  §  642. 

Withdrawal  value,  applving  on  declaring  loan  due  for  arrears  in  pay- 
ment, §  639. 

Withdrawals,  payments  of,  limit  of  amounts  that  can  be  applied  on, 
§642. 

Withdrawals,  payments  of,  order  of,  §  642. 

Working  capital  accumulated  by  membership  shares,  where  issued 
without  capital  or  guarantee  stock,  §  6^8a. 

BUILDINGS.     See  Halls;  Lodges. 

BULLS. 

Lien  of  owner  of  bull  used  for  propagation,  and  how  enforced, 
§§  3062-3064. 

BURDEN. 

Consent  of  party  entitled  to  benefit  necessary  to  transfer  of,  §  1457. 

He  who  takes  benefit  must  bear,  §  3521. 

Voluntary  acceptance  of  benefit  is  assumption  of,  §  1589. 

BURDEN  OF  PROOF. 

To  show  want  of  consideration,  §  1615. 

BURIAL.     See  Cemeteries;   Cemetery   Corporations. 
Eight  of,  §§  801,  802. 

BURNT  RECORDS  AND  DOCUMENTS.     See  Fire. 

Bonds,  burned,  of  corporation,  procedure  to  obtain   duplicates.     See 

Corporations,  XL 
Corporation,  of,  restoring.     See  Corporations,  XI. 
Negotiable  instrument,  destruction  of  by  fire,  action  for  re-execution, 

indemnity,  §  3415.  • 

Private  writings  destroyed  by  fire,  re-establishment  and  re-execution 

of,  §  3415. 

BUSINESS. 

Good-will  of.     See  Good-will. 


1022  INDEX. 

BUSINESS  ASSOCIATIONS.     See    Co-operative   Business    Associations; 
Co-operative  Business  Corporations. 

BUSINESS  CORPORATIONS.     See   Co-operative  Business  Corporations. 

BUSINESS  DAYS.     See   Holidays. 

What    are,  §  9. 

BY-LAWS.     See  Corporations;  Eeligious,  Social  and  Benevolent  Corpora- 
tions. 

c 

CANAL  CORPORATIONS.     See  Water  and  Canal  Corporations. 

CANALS. 

Maintenance  of  flow  of  water  to  canal  intakes.     See  "S^'aters. 

CANCELLATION. 

Acceptance  of  bill  of  exchange,  cancellation  of,  §  3198. 

Alteration  of  contracts,  in  general.  §§  1697-1701. 

Deed,  of,  does  not  revest  title,  §  1058. 

Duplicate,  alteration   or   destruction  of.  effect  of,  §  1701. 

Extinction  of  contract  by,  §§  1699,  1700. 

In  part,  when  allowed,  §  3-1:14. 

Instruments,  of,  in  general,  §§  3412-3414. 

Material  part,  of,  extinction  of  contract  by,  §  1700. 

Void,  instrument  obviously  void,  whether  canceled,  §  3413. 

Void  or  voidable  instrument,  when  canceled,  §  3412. 

Will,   of,  §§  1292,   1293. 

Written  instrument,  when  canceled,  §  3412. 

CABE.     See  Negligence. 

Great,  borrower  to   use,  §  1886. 

Great,  carrier  of  messages  for  reward,  §  2162. 

Great,  employee  for  his   own  benefit,  §  1979. 

Great,  ship-master,  §  2043. 

Ordinary,  carrier   of  property   for   reward,  §  2114. 

Ordinary,  depositary  for  hire  to  use,  §  1852. 

Ordinary,  employee  for  reward,  §  1978. 

Ordinary,  gratuitous  carrier  of  persons,  §  2096. 

Ordinary,  hirer,  §  1928. 

Ordinary,  trustee,  §  2259. 

Ordinary,  voluntary  agent,  §  2078. 

Slight,  gratuitous  carrier  of  property,  §  2114. 

Slight,  gratuitous  depositary  to  use,  §  1846. 

Slight,  gratuitous  employee,  §  1975. 

Utmost,  carrier  of  messages  by  telegraph,  §  2162. 

Utmost,  carrier  of  persons  for  reward  to  use,  §  2100. 

CARELESSNESS.     See   Negligence. 

CARGO.     See  Shipping. 

CARRIERS.     See   Baggage;    Carriers   of    Goods;    Carriers    of   Messages; 

Carriers  of  Passengers;  Marine  Carriers;  Railroad  Corporations; 

Telegraph  Companies;  Telephone  Companies. 
Are  inland  or  marine,  §  2086. 
Bill  of  lading.     See  Bill  of  Lading. 

Chattel  mortgage  of  property  of,  to  be  recorded  where,  §  2961. 
Common,  defined,  §  2168. 


INDEX.  1023 

CARRIERS.     (Continued.) 
Common,  who  are,  §  2168. 
Compensation  entitled  to  reasonable,  §  2173. 
Compensation,  payment  of  in  advance,  §  2173. 
Compensation,  refusal  to  pay,  §  2173. 
Contract  of  carriage  defined,  §  2085. 

Damages  for  not  receiving  freight,  messages,  or  passengers,  §  3315. 
Delay,   damages   for,  §  3317. 

Delays,  unreasonable,  carriage  to  be  without,  §  2104. 
Delivery,  liability  for  nondelivery,  §  3316. 
•     General  average.     See  General  Average. 

Gratuitous,  obligations  of,  §§  2089,  2090,  2096,  2114. 

Inland,  defined,  §  2087. 

Inland  or  marine,  are,  §  2086. 

Insurable  interest  of,  §  2548. 

Jettison.     See  Jettison. 

Kinds  of,  §  2086. 

Liability  of,  general  rule,  §  2194. 

Liability  of,  what  excuses,  §  2194. 

Limitation  of  liability,  assent   to  be  written,  when,  §  2176. 

Limitation  of  liability,  assent  to  on  accepting  bill  of  lading,  §  2176. 

Limitation  of  liability,  can  be  made  by  special  contract,  §  2174. 

Limitation  of  liability,  cannot  be  by  general  notice,  §  2174. 

Limitation  of  liability,  fraud,  not  allowed  in  case  of,  §  2175. 

Limitation  of  liability  in  bill  of  lading  or  ticket,  effect  of,  §  2176. 

Limitation  of  liabilitv  in  bill  of  lading  where  value  not  stated,  effect 

of,  §  2176. 
Limitation  of  liability,  negligence,  not  allowed  in  case  of,  §  2175. 
Limitation  of  liability,  willful  wrong,  not  allowed  in  case  of,  §  2175. 
Limitation  of  liability  without  notice  of  value,  §§  2177,  2200. 
Limiting  liability,  §§  2174-2176. 
Marine.     See  Marine  Carriers. 
Marine  or  inland,  are,  §  2086. 
Messages,    of.     See    Carriers   of   Messages;    Telegraph    Corporations; 

Telephone  Corporations. 
Must  start  on  time,  §  2172. 
Passenger  carriers.     See  Passenger  Carriers. 
Preferences  not  to  be  given,  §  2170. 

Preferences  to  be  given  to  state  and  United  States,  §  2171. 
Eeward,  carriers  without,  obligations,  §§  2089,  2090,  2096,  2114. 
Telegraph  company  is  not  common  carrier,  §  2168. 
Time,  must  start  on,  §  2170. 
United  States,  preference  to,  §  2171. 
Who  are   common   carriers,  §  2168. 
Written  contract,  effect  of,  §  2176. 

CARRIERS   OF   GOODS. 

Act  of  God  relieves  of  liability,  §  2194. 

Act  of  the  law,  carrier  liable  for,  if  negligent,  §  2195. 

Act  of  the  law,  not  liable  for,  §  2194. 

Arrival  of  goods,  duty  of  carrier  after,  and  before  delivery,  §  2120. 

Bill  of  lading,  not  liable  for  more  than  value  stated  in,  §  2200. 

Bills  of  lading.     See  Bills  of  Lading. 

Care  and  diligence  required  of,  generally,  §  2114. 

Connecting  carrier,  accepting  freight  for  point  beyond  route,  duty, 

§2201.  ^ 

Connecting  carrier,  duty  to  deliver  goods  to,  §  2201. 
Connecting  carrier,  liability  ends  on  delivery  to,  §  2201. 
Connecting  carrier,  proof  in  case  of  loss  of  through  freight.  §  2202. 


1024  INDEX. 

CARRIERS  OF  GOODS.      (Coutinued.) 
Consignee  defined,  §  2110. 

Consignee's  refusal  to  accept  and  remove,  storage,  §  2121. 
Consignee's  refusal  to  receive  goods,  duty  on,  §  2121. 
Consign'or  defined,  §  2110. 

Consignor  and     consignee,  conflicting  orders  of,  §  2116. 
Damages  for  breach  of  obligation  to  deliver,  §  3316. 
Damages  for  failure  to  receive  goods,  §  3315. 
Delay,  damages  for,  §  3317. 
Delay,  liable  for,  when  negligent,  §  2196. 

Delay,  liable  only  when  caused  by  want  of  ordinary  care,  §  2196.    • 
Delay,  when  only  liable  for,  §  2196. 

Delivery  according  to  bill  of  lading  exonerates  carrier,  §  2131. 
Delivery  in  part,  apportionment  of  freightage,  §  2141. 
Delivery,  may  demand   surrender   of  bill  of  lading  before,  §  2132. 
Delivery  not  made,  how  carrier  may  exonerate  himself,  §  2121. 
Delivery  not  made,  obligations  of  carrier,  §  2120. 
Delivery  of  freight,  manner  of,  §§  211S,  2119. 
Deliver}-  of  freight,  place  of,  §§  2118,  2119. 
Delivery  to  connecting  carrier,  §  2201. 
Delivery  to  holder  of  bill  of  lading  exonerates,  §  2131. 
Directions,  conflicting,  between  consignor  and  consignee,  which  to  be 

obeyed,  §  2116. 
Directions  of   consignor   or   consignee  to  be   obeyed,  §  2115. 
Exemption  from  liability,  none  when  negligent,  §  2195. 
Exemptions  do  not  excuse  if  negligent,  §  2195. 
Expense  of  transportation  of  thing  sold,  §  1755. 
Freight,  arrival,  notice,  duty  and  liability  of  carrier  after,  §  2120. 
Freight,  damages  for  breach  of  obligation  to  deliver,  §  3316. 
Freight  defined,  §  2110. 

Freight,  delivered  to  whom,  §§  2118.  2119. 
Freight,  deliverv,  manner  of,  §§  2118,  2119. 
Freight,  delivery,  place  of,  §§  211S,  2119. 

Freight,  delivery  to  holder  of  bill  of  lading  exonerates,  §  2131. 
Freight,  duty  of  carrier  after  arrival  and  before  delivery,  §  2120. 
Freight,  not  accepted,  storage  by  carrier,  §  2121. 
Freight  not  delivered,  obligations  of  carrier,  §  2120. 
Freight,  notice  of  arrival,  §  2120. 
Freight,  notice  of  deposit  in  warehouse,  §  2121. 
Freight,  obligation  to  accept,  §  2169. 

Freight,  through,  duties  and  liabilities  in  case  of  loss,  §§  2201,  2202. 
Freightage,  additional  on  carriage  farther  or  more  expeditiously  than 

agreed, §  2143. 
Freightage,  apportionment  by  acceptance  of  part  of  goods,  §  2141. 
Freightage,  apportionment  by  contract,  §  2140. 
Freightage,  appointment  where  accepted  short  of  place  of  deliverv, 

§  2142. 
Freightage,  carrier  "not  liable  for.  when,  §  2137. 
Freightage,  consignee  liable  for.  when,  §  2138. 
Freightage,  consignor  liable  for,  when,  §  2137. 
Freightage  defined,  §  2110. 

Freightage  for  natural  increase  of  freight.  §  2139. 
Freightage,  lien  for,  §§  2144,  2204. 
Freightage,  marine  insurance,  in,  §§  2661-2663. 
Freightage,   right   to   on   receiving   freight   short   of   its    destination, 

^§  2142.  ■* 

Freightage,  sale  of  perishables  for,'  right  of,  §  2204. 
Freightage,  to  be  paid  when,  §  2136. 


INDEX.  1025 

CARRIERS  OF  GOODS.      (Continued.) 

Gratuitous,   diligence   required,  §  2114. 

Inherent  defects,  etc.,  of  property,  not  liable  for  loss  from,  §  2194. 

Inland  carrier,  liability  of,  §  2194. 

Inland  carrier,  liability  of,  what  excuses,  §  2194. 

Irresistible  superhuman    cause,    liable    for    loss    from    where    carrier 

negligent,  §  2195. 
Irresistible  superhuman  cause,  not  liable  for  loss  from,  §  2194. 
Letters  containing  valuables,  no  liability  for,  where  no  notice,  §  2177. 
Liability  is  excused  by  what  acts  or  events,  §  2194. 
Liability  not  greater  than  value  stated  in  bill  of  lading,  §  2200. 
Lien,  has,  for  advances  and  services,  §  2144. 
Lien,  has,  for  freightage,  §  2144. 
Limitation  of  liabilitv  in  bill  of  lading,  where  value  not  stated,  eflfect 

of,  §2176. 
Limitation  of  liability  where  no  notice  of  value,  §§  2177,  2200. 
Limitation  of  liability.     See  Carriers. 
Loss  of  freight,  carrier  not  liable  for,  when,  §  2194. 
Loss  of  freight,  carrier's  liability  for,  §  2194. 
Loss  of  valuable  papers  or  money,  liability  for,  §  2177. 
Loss,  proof  in  case   of,  §  2202. 

Loss  through  negligence,  no  exemption  from  liability,  §  2195. 
Marine  carriers.     See  Marine  Carriers. 
Mortgage  of  property  by,  where  to  be  recorded,  §  2961. 
Negligence  of,  no  exemption  from  liability  in  case  of,  §  2195. 
Notice  of  arrival,  carrier  to  give,  §§  2120,  2121. 
Notice  of  value   of  articles,  limitation   on  liabilitv   without,  §§  2177, 

2200. 
Perishables,  may  sell  for  charges,  when,  §  2204. 
Public  enemies,  acts  of,  relieve  from  liability,  §  2194. 
Public  enemies,  liable  for  acts  of  where  negligent,  §  2195. 
Services    of,    other   than    of    carriage    and    delivery,   law    governing, 

§  2203. 
Valuable  articles,  limitation  on  liability  for,  when  no  notice,  §  2200. 
Valuables,  no  liability  for,  where   no  notice,  §  2177. 
Warehouseman,   carrier  when  liable   as,  §  2120. 
Who  are,  §  2168. 
Writings,  valuable,  liability  for,  §  2200. 

CARRIERS  OF  MESSAGES. 

Damages  for  breach  of  obligation  to  receive,  §  3315. 

Duty  to  deliver,  §  2161. 

Fixing  times  for  transmission  of  messages,  §  2208. 

Order  of  transmission  of  messages,  §  2208. 

Postponement  or  refusal  of  messages,  damages  for,  §  2209. 

Who  are,  §  216S. 

CARRIERS  OF  PERSONS.     See  Passenger  Carriers. 

Baggage,  amount  of  to  be  carried,  §  2180.     See  Baggage. 
Mortgage  of  property  by,  where  to  be  recorded,  §  2961. 

CASUALTIES.     See  Accident  Insurance. 

CATTIjE. 

Railroads,  liability  of,  for  injuries  to,  §  485. 

{CEMETERIES. 

Burial,  right  of,  a  servitude,  §§  801,  802. 
Cemetery  corporations.     See  Cemetery  Corporations. 
Civ.  Code — 65 


1026  INDEX. 

CEMETERIES.      (Continued.) 

Establishing  by  corporation,  §  .595. 
Lots,  disposal  of,  §  598. 

CEMETERY  CORPORATIONS. 

Annual  report,  §  609. 

Bonds  may  be  issued,  §  611. 

Bonds,  sixty  per  cent  of  proceeds  of  sales  to  be  applied  on,  §  611. 

Burial,  persons  not   interested   or  related  cannot  be  buried  without 

consent,  §  613. 
Burial,  right  of  where  several  owners  of  lot,  §  613. 
Deeds  by,  manner  of  execution  of.     Appendix,  tit.  "Corporations." 
Improvement  of  grounds,  §  616. 
Land  acquired  and  disposed   of,  how,  §  608. 
Lands,  how  may  be  paid  for,  §§  608,  611. 
Land,  how  much  may  be  held  by,  §  608. 
Lands,  maps   of,  §  608. 
Lands,  payment  for,  terms  for  lots  and  regulations  not  to  be  changed, 

§611. 
Lands,  sale  of,  order  for,  how  obtained,  §  615. 
Lands,  sale  of,  permitted,  §§  608,  615. 

Lands,  sale  of,  procedure  on,  and  showing  required,  §§  608,  615. 
Lands,  sale  of,  right  of,  §  615. 
Lands,  sale  of,  terms  and  conditions,  §  608. 
Lands  to  be  held  exclusively  for  cemetery.  §  608. 
Lands,  where  to  be  situated,  §  608. 
Lot,  co-owners   in,    rights    of,  §  613. 
Lot  inalienable  after  interment,  §  613. 
Lot  may  be  held  by,  on  what  trusts,  §§  612,  616. 
Lot  owners  previous  to  purchase,  rights  of,  §  614. 
Lot,  perpetual  care  of,  §  612. 
Lot,  rights  and  interests  in,  §  613. 
Lot,  sale   of,   after   disinterment,  §  613. 
Lots,  surveying,  etc.,  §  608. 

Members  eligible  to  vote  and  hold  office,  who  are,  §  609. 
Office,  who  eligible  to,  §  609. 
Perpetual  care  of  lots,  §  612. 

Personal  property,   may   be   held,   and   how   much,  §  610. 
Property  held  in  trust,  investment   of  proceeds,  §  616. 
Property  may  be   held  in   trust  by   cemetery  corporations  for   what 

purposes,  §§  612,  616. 
Property  may  be  held  in  trust,  proceeds  to  be  used,  how,  §  616. 
Report,   annual,   of   directors,  §  609. 
Eights  where  there  are  several  owners  of  lot,  §  613. 
Sale  of  lands,  proceedings  on,  §  615. 
Surplus,  how  disposed  of,  §  610. 
Trust,  property  may  be  held  in,  for  what  purposes,  §§  612,  616. 

CERTAIN. 

That  is  certain  which  can  be  made  certain,  §  3535. 

CERTIFICATE. 

Deposit,  general  or  special,  issuing,  §  576. 
Deposit,  of,  negotiable,  §§  3095,  3261. 

Deposits,  of,  savings  and  loan  corporation,  may  issue,  §  576.     Appen- 
dix, tit.  "Banking,"  §  64. 
Deposit,  special,  payment  on,  effect  of,  §  576. 
Deposit,  transferability,  §  576. 
False,  by  corporate  officers,  §  316. 
Indenture  of  apprenticeship,  of,  §  275. 


INDEX.  '   1027 

CERTIFICATE.     (Continued.) 
Marriage,  of,  §§  73,  74,  79. 

Mortgage,  of  discharge  of,  filing,  §§  2939,  2940. 
Of  proof  of  loss,  under  insurance,  when  dispensed  with,  §  2637. 
Of  stock.     See  Corporations,  XIII. 

Partnership  under  fictitious  name,  of,  §§  2466-2471.     See  Partnership. 
Proof  of  instrument,  certificate  of,  what  to  state,  §  1200. 
Restoration  of  lunatic,  of,  as  evidence  of  legal  capacity,  §  40. 
Savings  banks,  issuance  of,  by,  §  576.     Appendix,  tit.  "Banking,"  §  64. 
That  seaman  exerted  himself  to  save  cargo,  etc.,  §  2059. 

CERTIFICATE  OF  DEPOSIT.     See  Certificate. 

CHAMBERS  OF  COMMERCE,  BOARDS  OF  TRADE,  AND  MECHAN- 
ICS' INSTITUTES  AND  KINDRED  ASSOCIATIONS. 

Articles  of  incorporation,  execution  and  filing,  §  591. 

Assessments,  manner. of  levying  and  collecting,  §§  592c,  592d. 

Assessments,  power  to  levy,  and  collect,  §  592d. 

Business,  not  to  engage  in,  §  591. 

By-laws,  force  and  effect  of,  §  592c. 

By-laws,  penalty  for  violation  of,  §  592e. 

By-laws,  power  to  enact,  §  591. 

By-laws,  what  to  prescribe,  §  592c. 

Capital  stock,  may  have,  when,  §  592. 

Directors,  powers  which  may  be  conferred  on,  §  592a. 

Executive  committee,  powers  which  may  be  conferred  on,  §  592a. 

Formation  of,  authorized,  §  591. 

Formation  of,  manner  of,  §  591. 

Formation  of,  number  of  persons  who  may  form,  §  591. 

Formation  of,  when  complete,  §  591. 

Meetings,  how  called  and  conducted,  §  592c. 

Meetings,  quorum,  §  592c. 

Members,  expulsion  and  admission  of,  §  o92c. 

Officers,    agents,    and    servants,    appointment    and    tenure    of    office, 

§  592c. 
Organization  of,  §  591. 

I*re-existing  corporations  entitled  to  benefit  of  code,  §  592e. 
Pre-existing  corporations,   how   become   entitled   to   benefit   of   code, 

§  592e. 
Powers  and  liabilities   of,  §§  591,  592b. 
Power  to  lease,  acquire,  and  sell  property,  §  592b. 
Stock,  certificates  of,  right  to  issue,  §  592. 
Stockholders,  rights,  privileges,  and  obligations  of,  §  592. 
Succession,  have,  for  what  period  of  time,  §  591. 
Trustees,  powers  which  may  be  conferred  on,  §  592a. 

CHANGE  OF   NAME.     See   Names. 

CHARGE  D'AFFAIRES. 

Acknowledgments  outside  of  United  States,  may  take,  §  1183. 

CHARITABLE  USE. 

Restrictions  on  power  of  bequeathing  to,  §  1313. 

CHARITY. 

Restrictions  on  power  to  bequeath  to,  §  1313. 

CHARTER-PARTY.     See    Shipping. 
Charterer,  who  may  be,'§  1959. 
Defined,  §  1959. 


1028  INDEX. 

CHARTER-PARTY.      (Continued.) 

Insurable  interest  exists   under,  §  2663. 
Insurable  interest  of  charterer,  §  2665. 
Ship-master  may  enter  into,  in  foreign  port,  §  2376. 
Ship's   manager   may   enter   into,  §  2388. 
What  rights  in   ship   may  be  given   under,  §  1959. 

CHASTITY. 

Want  of,  avoids  promise  to  marry,  §  62. 

CHATTEL  INTEREST. 

Defined,  §  765. 

CHATTEL  MORTGAGE. 

Acknowledged  how,  §§  2957,  2963. 

Acknowledgment,  necessity  of,  §  2957. 

Affidavit  that  it  is  made  in  good  faith  and  without  intent  to  defraud, 

§  2957. 
Attachment  and  sale  of  property,  distribution  of  proceeds,  §  297-0. 
Attachment  of  the  property,  proceedings  on,  §§  2968-2970. 
Attachment,  property  may  be  taken  on,  §  2968. 
Certified,  how,  §  2963. 

Certified,  must  be.  same  as  grant  of  realty,  §  2957. 
Common  carrier,  mortgage  where  to  be  recorded,  §  2961. 
Continuance  on  crop  after  severance,  §  2972. 
Execution  against   the   property,   proceedings   on, §§  2968-2970. 
Execution,  levy  and  sale  under,  distribution  of  proceeds,  §  2970. 
Execution,  property   may  be   taken   on,  §  2968. 
Foreclosed  how,  §  2967. 
Foreclosure,  right  of,  §  2967. 
Form  of,  §  2956. 

Fraudulent  transfer,  want  of  delivery,  §  3440. 
Growing  crop,  continuance  on  after  severance,  §  2972. 
Lien  on  growing  crop,  continuance  after  severance,  §  2972. 
Made  upon  property  not  authorized,  effect  of,  §  2973. 
May  be  made  upon  what  property,  §  2955. 
Not  conforming  to  statute,  effect  of,  §  2973. 

Pledge,  transfer  of  interest  in  personalty  as  security,  when  is,  §  2924. 
Proof  of,  necessity   and   manner   of,  §§  2957,   2963. 
Property   in   transit,   where   deemed  to   be,  §  2960. 
Proved,  how,  §  2963. 
Eecorded  how,  §  2963. 
Eecorded  in  separate  books,  §  2963. 
Eecorded,  must  be,  in  what  counties,  §  2959. 
Eecorded,  must  be,  same  as   grant   of  realty,  §  2957. 
Eecorded  where,  when  property  belongs  to  carrier,  §  2961. 
Eecorded  where,  when  property  in  transit,  §  2960. 
Eecording  certified  copies  in  other  counties,  §  2964. 
Eecording  certified  copy,  effect  of,  §  2964. 
Eecording,  where   property   in    different   places,  §  2962. 
Eedemption,  foreclosure  of  right  of,  §  2967. 
Eemoval  of  property  from  count j',  effect  of,  §§  2965,  2966. 
Eemoval  of  property,  rights  of  mortgagee  on,  §  2966. 
Sale  of  the  property  under  process,  distribution  of  proceeds,  §  2970. 
Ship,  code  sections  not  applicable.  §  2971. 
Ship,  mortgage  where  to  be  recorded,  §  2958. 
Ships  not  subject  to  law  of,  when,  §  2970. 
Ships,  void  as  to  creditors,  etc.,  unless  /ecorded,  §  2958. 
Validity  where  made    on    property    other    than    permitted    by  code, 

§  2973. 


INDEX.  . 1029 

CHATTEL  MOETGAGE.     (Continued.) 

Validity  where  not  made  in  conformity  to  code,  §  2973. 
Void  as  to  creditors,  etc.,  unless   recorded,  §  2957. 
Void  as  to  creditors,  etc.,  when,  §  2957. 
What  property  may  be  the  subject  of,  §  2955. 

CHATTEL  REAL.     See  Estates  for  Years. 
Defined,  §  765. 

Estate  for  life  of  third  person  is,  §  766. 
Estate  for  years  is,  §  765. 
Limitation  of  power  of  suspension,  §  770. 
May  commence  at  future  day,  §  773. 

CHECK.     See  Baggage;   Negotiable  Instruments,  VII. 

CHILD  EN  VENTRE  SA  MERE.     See  Infant;  Parent  and  Child. 

Posthumous   child   takes  as  if   living  at  testator's   death,  §  698.     See 

Posthumous  Children. 
Eights  of,  §§  29,   698. 
Takes   under  will,  when,  §  1339. 

CHILDREN.     See  Infant;  Parent  and  Child. 

Cruelty   to,    societies    to   prevent.     See   Societies   for   Prevention    of 

Cruelty  to  Children  and  Animals. 
Posthumous,  succession  by.     See  Posthumous  Children. 

CHINESE. 

License  for  marriage  between  and  white  not  to  issue,  §  69. 
Marriage  between,  and  whites  forbidden,  §  60. 

CHOSE  IN  ACTION. 

Defined,  §  953. 

Descends  to  personal  representatives,  when,  §  934. 

Presumption   as  to  value  of,  §  3356. 

Sales  of,  when  within  statute  of  frauds,  §§  1624,  1739. 

Survivorship  of,  §  954. 

Transfer  of,  §  954. 

Warranty  on  sale  of  written  instruments,  §  1774. 

CHURCH.     See  Eeligious,  Social    and  Benevolent  Corporations. 
Eight  of  seat  in  as  a  servitude,  §§  801,  802. 

CHUTE,     See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 

Statutes   governing   chute   corporations   govern   when   owned   by   in- 
dividual, §  531. 

CITIZENS.     See  Civil  Eights. 

All  to  have  equal  rights  in  public  places,  §  51. 
Denial  of  equal  rights  to,  punishment,  §  52. 

CITY.     See  Municipal  Corporations. 

Water   companies'   relations   with,  §§  548,    549. 

CITY  AND  COUNTY. 

Word  "county"  includes,  §  14. 

CITY  RECORDER. 

Marriage',  may  solemnize,  §  70. 

CIVIL  CODE.     See  Code. 

CIVIL  RIGHTS. 

All  citizens  to  have  equal  rights  in  public  places,  §  51. 
Denial  of  equal  rights  to  all  citizens,  punishment,  §  52. 


1030  INDEX. 

CIVIL  RIGHTS.     (Continued.) 

Parties    deprived    of,    cannot    contract,  §  1556. 

Personal  rights,  enumeration  of,  §  43. 

Refusal  of  admission  to  places  of  amusement,  damages,  §  54. 

Refusal  of  admission  to  places  of   amusement   unlawful,  §  53. 

CLAIM  AND  DELIVERY. 

Possession  of  personal  property,  how  recovered,  §  3379. 

CLASS. 

Deceit  upon  class  of  persons,  effect  of,  §  1711. 
Devise  or  bequest  to,  who  included,  §§  1337,  1339. 

CLERK  OF  COUNTY. 

Acknowledgment,  may  take,  §  1181. 

Articles  of  incorporation  to  be  filed  with,  §  296. 

Certificate  of  formation  of  special  partnership  to  be  filed  with,  §  2480. 

Duty  of,  regarding  marriage  licenses,  §  69. 

Duty  of,  where  acknowledgment  is  taken  by  justice  of  peace,  §  1194. 

Humane  officers,  record  of  appointments,  duties  as  to  and  fees,  §  607f. 

May   take   acknowledgment,  §  1181. 

Must  keep  register  of  partnership  names,  §  2470. 

Notice  of  dissolution  of  special  partnership  to  be  filed  with,  §  2509. 

Petition  for  appraisement  of  homestead  to  be  filed  with,  §  1247, 

CLERK  OF  COURT. 

Acknowledgment,  clerk  of  court  of  record  may  take,  §  1181. 
Of  court  of  record  may  take   acknowledgment,  §§  1181,   1182. 
Of  supreme  court  may  take  acknowledgment,  §  1180. 

CODE. 

Cited  how,  §  21. 

Construction  where  it  derogates  from  common  law,  §  4. 

Construed  liberally,  §  4. 

Continuation  of  statutes  and  common  law,  §  5. 

Corporations,  continuance  of  under  code,  proceedings  on,  §  288. 

Corporations,  effect  of  code  on,  §  288. 

Corporations,  laws  relating  to,  effect  of  code  on,  §  288, 

Definition   of   terms,  §  14. 

Divisions   of,  §  1. 

Establishes  law  on  subject  to  which  it  relates,  §  4. 

In  abrogating  statutes  does  not  revive  others,  §  20. 

Instruments  executed  before,  not  affected  by,  §§  1205,  1206. 

Pending  actions  not  affected  by,  §  6. 

Private  statute,  how  affected  by,  §  20. 

Provisions  of,  subordinate  to  intention  of  parties  to  contracts,  §  3268. 

Repeal  by,  does  not  affect  existing  actions  or  rights,  §  20. 

Repeal  by,  does  not  revive  former  law,  §  20. 

Repeals  other  statutes,  how  far,  §  20. 

Retroactive,  not,  §  3. 

Retroactive,  not,  as  to  instruments  made  before,  §§  1205,  1206. 

Retroactive,  not  as  to  wills,  §  1375. 

Statutes  in  existence  at  adoption  of,  how  affected  by,  §  20. 

Statutes  not    contained    in    force   because    consistent    with,  §  20. 

Statutes  on    subjects    covered   by   repealed,  §  20. 

Terms  used  in  defined,  §  14. 

Title   of,  §  1. 

Vested  rights  not  affected  by,  §  6. 

Waiver  of,  by  parties  to  contract,  right  of,  §  3268. 

When  takes  effect,  §  2. 


INDEX.  «  1031 

CODICILE  included  uuder  will,  §  14. 

Execution  of,  republishes  will,  §  1287. 
Eevoeation  of  will  revokes,  §  1305. 

COHABITATION. 

When  prevents  nullifying  marriage,  §  82. 

COLLATERAL  CONSANGUINITY.     See  Consanguinity. 
COLLATERAL  SECURITY.     See  Pledge. 

COLLATERAL  WARRANTY. 

Abolished,  §  1115. 

Liability  of  heir  or  divisee  under,  §  1115. 

COLLECTION. 

Agent   for,   duties   of,  §  2021. 

Effect   of   warranty   of,  §  2800. 

Partner    acting    in    liquidation    may    make,  §  2461. 

COLLEGES   AND    SEMINARIES    OF    LEARNING. 

Any  number  of  persons  maj-  incorporate,  §  649. 

Articles   of  incorporation   to  contain  what,  §  649. 

By-laws  and  ordinances,  §  650. 

Consolidation  authorized,  §  652. 

Consolidation,  board  of  trustees  consists  of  trustees  of  old  institu- 
tions, §  652. 

Consolidation,  board  of  trustees,  how  constituted  and  elected,  §  652. 

Consolidation,  board  of  trustees,  minimum  number,  §  652. 

Consolidation,  board  of  trustees,  number  may  be  reduced  after  five 
years,  §  652. 

Consolidation,  board  of  trustees,  number  of,  how  reduced,  §  652. 

Consolidation,  debts  and  liabilities  not  affected  by,  §  653. 

Consolidation,  franchises  of  old  institutions  expire,  §  653. 

Consolidation,  how  effected,  §  652. 

Consolidation,  property  conveyed  to  new  institution,  rights,  powers, 
and  liabilities  as  to,  §  653. 

Consolidation,  property  to  be  conveyed  to  new  corporation,  §  653. 

Consolidation,  trustees  report  annually,  §  653. 

Existing  institutions,  reincorporation  under  code  authorized,  §  651. 

Existing  corporations,  reincorporation  under  code,  notice  of  meeting, 
proof  of,  §  651. 

Existing  corporations,  reincorporation  under  code,  proceedings  on, 
§651. 

Incorporation  of,  any  number  of  persons  may  incorporate,  §  649. 

Incorporation  of,  authorized,  §  649. 

Meeting  of  trustees,  statement  in  minutes  that  notice  given  con- 
clusive, §  651. 

Minutes  of  meeting,  certification   of,  §  651. 

Names  of  subscribers,  §  649. 

Ofiiee  of,  where  located,  §  650. 

President,  professors,  tutors,  and  officers,  of  appointment  and  salaries, 
§650. 

Property   given   to   aid,   names   of  subscribers,  §  649. 

Property,  power  to  acquire,  lease,  mortgage,  manage,  or  dispose  of, 
§  650. 

Transfer  of  property  from  existing  to  new  colleges,  §  651. 

Trustees,  additional,  §  650. 

Trustees,  death,   vacancy,   or   expiration   of  term,  §  650. 

Trustees,  majority   constitute   quorum,  §  650. 


1032  INDEX. 

COLLEGES  AND  SEMINARIES  OF  LEARNING.     (Continued.) 
Trustees,  names    and    residence,  §  649. 
Trustees,  nominations    by   graduates,  §  6o0. 
Trustees,  number  of,  §§  649,  650. 
Trustees,  organization,  §  650. 
Trustees,  powers  of,  enumerated,  §  650. 
Trustees,  president    of,  §  650. 
Trustees,  qualifications   of,  §  649. 
Trustees,  quorum,  §  650. 
Trustees,  term  of  office,  §  650. 
Trustees,  vacancies,  how  filed,  §  650. 

Trustees,  vacancies,  right  of  graduates  to  fill,  §  650,  subd.  2. 
Wills,  taking  under,  §  1275. 

COLLISION. 

From  breach  of  rules  of  navigation  implies  willful   default,  §  972. 
From  breach  of  rules  of  navigation,  right    of   recovery,  §  971. 
Loss  by,  how  apportioned,  §  973. 
Eules  for  avoiding,  §  970. 

COLLUSION. 

Defined,  §  114. 

Divorce  denied  for,  §  111. 

Presumption  of,  lapse  of  time,  §  125. 

COMBINATIONS. 

Live-stock,  to  obstruct  sale  of,  prevented.     Appendix,  tit.  "Animals." 

COMMERCE. 

Chambers  of.  See  Chambers  of  Commerce,  Boards  of  Trade,  Mechanics' 
Institutes  and  Kindred  Associations. 

COMMERCIAL  BANKS.     See  Banks   and  Banking,  II. 

COMMISSIONERS. 

Acknowledgment,   right   to   take,  §  1181, 1182,  1183. 

Eailroad,    act    organizing    and    defining    powers    of.     Appendix,    tit. 

"Eailroads." 
Transportation,    act   relating   to.     Appendix,   tit.    "Railroads." 

COMMISSION  MERCHANT.     See  Factors. 

COMMON  CARRIERS.  See  Baggage;  Carriers;  Carriers  of  Goods; 
Carriers  of  Persons;  Carriers  of  Messages;  Marine  Carriers;  Eail- 
road Corporations;  Telegraph  Companies;  Telephone  Companies. 

Letters  of  credit,  license  from  superintendent  of  banks  necessary 
before  issuing.     Appendix,  tit  "Banking,"  §  13. 

Letters  of  credit,  license  to  issue,  fee  for.  Appendix,  tit  "Banking," 
§13. 

Letters   of   credit,  right  to  issue.     Appendix,   tit.   "Banking,"  §  13. 

COMMON  LAW. 

Code,  continuation   of,  §  5. 

Statutes  in   derogation   of,   construction   of,  §  4. 

COMMON  STOCK.     See  Corporations,  XIII. 

COMMUNITY  PROPERTY.     See  Divorce;  Husband  and  Wife;  Property. 

COMPENSATION. 

Adult  child  serving  and  being  supported  by  parent,  §  210. 
Appraisers  of  homestead,  of,  §  1258. 


INDEX.  1033 

COMPENSATION.      (Continued.) 

Assignee  for  creditors,  of,  §  3471. 

Borrower,  of,  §§  1892,   1891. 

Death  of  employer,  after,  §  1998. 

Defined,  §  3274. 

Depositary  for  hire,  of,  for  fractions  of  week  or  month,  §  1853. 

Depositary,   voluntary,   of,  §  2078. 

Detriment,  defined,  §  3282. 

Employee  dismissed  for  cause,  of,  §  2002. 

Employee  quitting  for   cause,   of,  §  2003. 

Finder,   of,  §  1867. 

For  loan,  called  interest,  §  1015. 

For  mistake,    when    allowed,  §  3391. 

Gratuitous  carriers,  duties  of,  §§  2089,  2090,  2096,  2114. 

Law,  given  by,  §  3275. 

Lienor   not   entitled   to,  §  2892. 

Managing  owner  of  ship  not  entitled  to,  §  2072. 

Of   common   carrier,  §  2173. 

Partial   failure   to   perform,   on,  §  3392. 

Partner  not  entitled  to,  §  2413. 

Eescission  of  contract,  on,  §  3408. 

Service  continued   beyond    two   years,   in    case    of,  §  1980. 

Service  without  employment,  in  ease  of,  §  2078. 

Trustee,  of,  §§  2273,  2274. 

Unlawful    acts    or    omissions,    recoverable    for,  §  3281. 

Voluntary  interference  with   property,  in   case  of,  §  2078. 

COMPOSITION. 

Of   author,   property   in, §§  665,    980-985. 

COMPOUND  INTEREST. 

Where  trustee  omits  to  invest  funds,  §  2262. 

COMPRESSED  AIR. 

Steam  road,  right  to  use,  as  motive  power,  §  4'65a. 

COMPROMISE.     See  Accord  and  Satisfaction. 

Partner  in  liquidation  may  compromise  claims,  §  2461. 

COMPUTATION. 

Of    time,  §  10. 

CONCEALMENT, 

Consent  obtained  by,  contract  not  enforceable,  §  3391. 

Defined,  §  2561. 

Effect  of,  §  2562. 

Insurance,  in.     See  Insurance,  VI. 

Suppression  of  a  fact,  when  constitutes  deceit,  §  1709. 

Suppression  of   truth    as    fraud,  §  1572. 

When   constitutes   fraud,  §  1572. 

CONDITION.     See  Conditional, 

Alienation,  conditions  restraining,  effect  of,  §  711.     See  Alienation. 

Attached  to  proposal,  effect  of,  §  1582. 

Concurrent,   defined,  §  1437. 

Concurrent,    performance,  §§  1439,    1498. 

Enjoyment  of  property  is  upon,  when,  §  707. 

Forfeitures,    involving   strictly    construed,  §  1442. 

Impossible,   void,  §  1441. 

Kinds  of,  §§  708,  1435. 

Marriage,  condition  in   restraint   of,  effect   of,  §  710. 


1034  INDEX. 

CONDITION.      (Continued.) 

Ma}'   inure   to   stranger,  §  1085. 

Obligations,  in.     See  Obligations. 

Offer  of  performance  may  be  made  dependent  upon  performance  of, 
§  1498. 

Offer  of  performance  to  be  free  from,  §  149-4. 

Payment,    conditions    that    may    be    imposed    before,  §  3137. 

Performance  excused   on   refusal  by   other  party  to  perform,  §  -1440. 

Performance  of,  as  an  acceptance  of  proposal,  §  1584. 

Performance  of,  essential,   when,  §  1439. 

Precedent  and  subsequent,  §  70S. 

Precedent,  defined,  §§  70S,   1346,   1436. 

Precedent,  failure   to   fulfill,   revocation   of   contract,  §  1587. 

Precedent,  grant   on,   becomes   absolute    when,  §  1110. 

Precedent,  performance  of,  §  1498. 

Precedent,  performance  of  essential,  §  1439. 

Precedent,  requiring  performance  of  wrongful  or  unlawful  act,  effect 
of,  §  709. 

Precedent,  what,  §  708. 

Precedent,  wills,   in,  §§  1346-1348. 

Repugnant,   void,  §§  711,    1441. 

Right  of  re-entrv  for  breach  of  condition  subsequent  can  be  trans- 
ferred, §  1046. 

Subsequent,  defined,  §§  708,   1349,   1438. 

Subsequent,  grant  on,  reconveyance  on  defeat  of,  §  1109. 

Subsequent,  what,  §  708. 

Subsequent,  wills,   in,  §  1349. 

Time  of  creation   of  interest,  §  749. 

Unlawful,  void,  §  1441. 

CONDITIONAL.     See   Condition. 

Delivery  cannot  be  made  to  grantee  or  agent,  §  1056. 

Devise  or  bequest,  what  is,  §  1345. 

Devise   or  bequest,   when   vests,  §  1347. 

Limitation,  remainder  when  deemed  to  be,  §  778. 

Obligation,  involving    forfeiture,    how    construed,  §  1442. 

Obligation,  liability    of   guarantor    on,  §  2808. 

Obligation,  performance   of,  excused,  §  1440. 

Obligation,  prerequisites    to   enforcing,  §  1439. 

Obligation,  when  is,  §  1434. 

Offer  of  performance,   not   to  be,  §  1494. 

Will,  when  may  be  denied  probate,  §  1281, 

CONDONATION.     See  Divorce. 

CONFESSION  OF  JUDGMENT. 

Partner  has  no  power  to  confess  judgment,  §  2430. 

CONFLICT  OF  LAWS. 

Assignment    for    creditors    in    another    state,  §  3451. 
Contracts,   law   governing  interpretation   of,  §  1646. 
Injunction  to  stay  proceedings  in  another  state,  §  3423. 
Marriages  out  of  state  valid,  §  63. 
Personalty,  law  governing,  §  946.  , 

Realty,  law  governing,  §  755. 
Wills,  validity  and  interpretation  of,  §  1376. 
Wills,  foreign,    validity    of,  §  12S5. 

CONFUSION   OF  GOODS.     See   Accession. 

Ownership  of  things  formed  by,  §§  1025-1032, 


i 


INDEX.  1035 

CONGRESS. 

Laws  of,  govern  carriers  by  sea,  §  2088. 

Laws  of,  govern  seamen,  §  2066. 

Liability   of   marine   carrier   regulated   by,  §  2198. 

CONJOINT  WILLS. 

A^alidity   of,  §  1279. 
Revocation  of,  §  1279. 

CONNIVANCE.     See  Divorce. 

Contract   obtained  through,   void,  §  1689. 
Presumption   of   from  lapse    of   time,  §  125. 

CONSANGUINITY. 

Collateral  consanguinity  defined,  §  1390.  , 

Computed  how,  §§  1389-1394. 

Degrees  in  collateral  line,  how  computed,  §  1393. 

Degrees  in  direct  line,  how   computed,  §  1392. 

Degrees  of  kindred,  how  computed,  §  1389. 

Direct  and  collateral,  §§  1390-1393. 

Direct  ascending  line,  §  1391. 

Direct  consanguinity,  what,  §  1390. 

Direct  descending  line,  §  1391. 

Half  blood,  inheritance  by  kindred  of,  §  1394. 

CONSENT.     See  Contract,  III. 

Acquiescence  in  error  takes  away  right  of  objecting,  §  3516. 

Adoption,  of  child's  parents  necessary,  §  224. 

Adoption,  of  child,    when    necessary,  §  225. 

Adoption,  of  parents  not  necessary  when,  §  224. 

Adoption,  of  wife,  necessary  for,  §  223. 

Ado£tion,  where  child  in  orphan  asylum,  §  224. 

Apprenticeship   of  child,   for,  §§  265,   266. 

Beneficiary,  of,  necessary  to  allow  trustee  to  hold  adverse  interest, 
§  2232. 

Child,  written,  of  mother,  necessary  to  transfer  custody  of,  §  197. 

Contract   may   be   rescinded   by   mutual,  §  1689. 

Corporate  meeting  held  by   consent,  proceedings  at,  §§  317,  318. 

Depositor,  of,  necessary  to  use  of  deposit  by  depositary,  §  1835. 

Divorce,   corrupt    consent,    constitutes    connivance,  §  112. 

Divorce,  corrupt,  how  manifested,  §  113. 

Guaranty,  not  necessary  to  create,  §  2788. 

Landlprd,  of,  necessary  to  attornment  to  stranger,  §  1948. 

Marriage,  alone  does  not  constitute,  §  55. 

Marriage,  how  manifested  and  proved,  §  57. 

Marriage,  incapacity  to,  when   ground  for  annulling,  §  82. 

Marriage,  of   parties  necessary  to,  §  55. 

Marriage,  who  are  capable  of  giving  consent  to,  §  56. 

Mutual,  sufficient  consideration  for  agreement  to  separate,  §  160. 

Of  husband   not   required   for   transfer   of  wife's   separate   property, 
§  162. 

Of  party  entitled  to  benefit  necessary  to  transfer  of  burden,  §  1457. 

One   consenting  to   act   is  not  wronged  by  it,  §  3515. 

Partnership,  of  all,  necessary  to  creation  of,  §  2397. 

Partner,  unanimous,  necessary  to  admission   of  new,  §  2397. 
I         Principal,  of,  necessary  to  release  of  factor,  §  2030. 
I       Rescission  of  ratification  made  without,  §  2314. 
^        Separation  by,  not  desertion,  §  99. 

Separation,   to,    a   revocable   act,  §  101. 

Thing  obtained  without,  of  owner,  to  be  restored,  §  1712. 


1036  INDEX. 

CONSENT.      (Continued.) 

Trust,  mutual,  necessary  to  create,  §  2251. 

Voluntary  interference  with  property  without,  duties  and  rights  on, 

§  2078. 

CONSIDERATION.     See  Contracts,  IV. 
Agency,  not  necessary,  §  2308. 
Burden  of  proof  to  invalidate,  §  1615. 
Effect   of   transfer   where   paid   by  third  person,  §  853. 
Executed  or  executory,  may  be,  §  1609. 
Executory,  how   ascertained,  §§  1610,    1611. 
Executory,  may  be  left  to  decision  of  third  party,  §  1610. 
Executory,  may  be  regulated  by  any  specified  standard,  §  1610. 
Executory,  need  not  be  specified,  §  1610. 

Executory,  not  necessary  that  contract  furnish  means  of  ascertain- 
ing, §  1610. 
Executory,  subject  to   what   provisions   of  code,  §  1609. 
Existing   legal   obligation   as,  §  1606. 
Failure  of,  rescission,  §  1689. 
Good,  defined,  §  1605. 
Guaranty,  for,  §§  2792,  2793. 

How  ascertained,  where  contract  does  not  determine,  §  1611. 
How  ascertained  where  left  to  discretion   of  third  person,  §  1611. 
Hlegal  in  part,  effect  of,  §§  1598,  1608. 
Impossibility   of   ascertaining,   effect   of,  §§  1612,   1613. 
Lawful,  must  be,  §  1607. 
Lawful,  what   is,  §§  1607,   1667. 

Leaving  amount  of  to  decision  of  third  person,  §§  1610,  1611. 
Minor  to  restore,  on  disaffirmance,  §  35. 
Moral   obligation,  §  1606. 

Negotiable  instrument,  for,  presumption   of,  §  3104. 
Negotiable  instrument,  want  of,  effect  of,  §  3122. 
New,  altering  contract  without,  §  1697. 
Not  necessary  on   voluntary  transfer,  §  1040. 
Of   contract   between   spouses  for  separation,  §  160. 
Ratable    proportion    when    performance    of    obligations    prevented, 

§  1514. 
Return   of  by  minor,   on   disaffirming  contract,  §  35. 
Voluntary  transfer,  in   case  of,  §§  1040,   1146. 
Written   instrument    presumptive    of,  §  1614. 

CONSIGNMENT. 

Bills  of  lading.     See  Bills  of  Lading. 

Consignee  defined,  §  2110. 

Consignor,  defined,  §  2110. 

Delivery  of,  §§  2118-2122. 

Directions,   conflicting,   between    consignor   and   consignee,   which   to 

be  obeyed,  §  2116. 
Directions  of  consignor  or  consignee  to  be  obeyed,  §  2115. 
Freightage,  liability  for,  §§  2136-2144. 
Insolvency   of   consignee,   what   is,  §  3077. 

Refusal  of  consignee  to  receive  goods,  duty  of  carrier  on,  §  2121. 
Special  contract  of  carrier,  effect  of,  §  2176. 
Stoppage  in  transit,  §§  3076-3080. 


CONSOLIDATION. 

By  corporations  other  than  for  profit,  §  605.  _ 

Colleges  and  seminaries  of  learning.     See  Colleges  and  Seminaries  of 
Learning. 


i 


INDEX.  1037 

CONSOLIDATION.      (Continued.) 

Consolidated  bonded  debt  by  several  corporations,  creation  of,  §  359.  • 
Corporations,    of.     See    Non-profit    Co-operative    Agricultural,    Viti- 

cultural  and  Horticultural  Associations;  Non-profit  Co-operative 

Corporations. 
Mining   corporations,  §  5S7a. 

Railroad    corporations,    of.     See    Railroad    Corporations. 
Religious,    social    and    benevolent    corporations,    of.     See    Religious, 

Social  and  Benevolent  Corporations. 

CONSTRUCTION.     See     Contracts,     VII;      Conveyances;      Words     and 
Phrases. 
Code  to  be  liberally  construed,  §  4. 
Codes.     See  Codes. 

Condition    involving   forfeiture    strictly    construed,  §  1442. 
Contemporaneous   construction  is   the   best,  §  3535. 
Contracts.     See  Contracts,  VII. 
Conveyances,  of.     See  Conveyances. 

Interpretation  giving  efiiect  preferred  to  one  making  void,  §  3541. 
Interpretation  must  be  reasonable,  §  3542. 
Joint  authority,  of,  §  12. 

Particular  expressions  qualify  general,  §  3534. 
Words  and  phrases,  of,  §  13. 

CONSTRUCTIVE. 

Delivery,  §  1059. 

Fraud  defined,  §  1573. 

Notice    defined,  §§  18,    19. 

Notice,  record  of  conveyance  is,  §  1213.  , 

CONSTRUCTIVE  NOTICE.     See  Recording. 
Record  of  conveyance  is,  §  1213. 

CONSUL. 

Of  United  States  may  take  acknowledgments,  §  1183. 

Vice-consul   or  consular  agent   may  take   acknowledgments,  §  1183. 

CONTEMPORANEOUS  CONSTRUCTION. 

Is  the  best,  §  3535. 

CONTEMPT. 

Officer  taking  proof  of  instrument  may  punish  for,  §  1201. 

CONTINGENT  INTEREST.     See  Future  Interest. 
Birth   of  posthumous   child   defeats,   when,  §  739. 
Defined,  §  695. 
Estate  not  terminated  by  determination  of  precedent  interest  before 

happening   of   contingency,  §  742. 
Future  interests,  how  may  be  defeated,  §  740. 
Future  interest  is,  when,  §  695. 
Not  void  because  improbable,  §  697. 

CONTINGENT  REMAINDER. 

How    created,  §  773. 

On   prior'  remainder  in  fee,  §  772. 

On  term  of  years,  §  776. 

CONTINUANCE. 

Of    corporate    existence,  §§  287,    401. 

CONTINUING  GUARANTY.     See  Guaranty. 


1038  INDEX. 

CONTRACTS. 

I.  Definition  and  kinds  of. 
II.  Who  may  contract;  parties  to. 

III.  Essential    elements;    offer;     acceptance;     consent;     conditions    iu; 

waiver  of  code  provisions;  effect  of  code  on. 

IV.  Consideration. 

V.  Execution  and  delivery;  proof  of;  reduction  to  writing;  seal;  when 

take   effect. 
VI.  Validity  of;   object  of  contracts. 
VII.  Construction  of. 
VHI.  Performance. 

1.  Generally. 

2.  Time  of. 

3.  Excuse,  prevention  or  waiver  of. 

4.  Offer  of. 

5.  Partial. 

IX.  Alteration;  cancellation;  release;  extinction. 
X.  Actions  on;  liability  under. 

Obligations.     See  Obligations. 
Eeformation   of.     See   Eeformation. 
Eescission  of.     See  Rescission  of  Contracts. 
Specific  performance  of.     See  Specific  Performance. 
Statute   of  frauds.     See  Statutes  of  Frauds. 
Particular    contracts.     See    particular   title. 

I.  Definition  and  kinds  of. 

Alternative.     See  Obligations. 

Defined,  §  1549. 

Executed,  is  what,  §  1661. 

Executory,  is  what,  §  1661. 

Express,  defined,  §  1620. 

Express  or  implied,  contracts  are,  §  1619. 

Implied,   defined,  §  1621. 

Joint  and  several.     See  Joint. 

II.  Who  may  contract;  parties  to. 

Civil  rights,  parties  deprived  of,  cannot  contract,  §  1556. 

Infants,  competency  of  to  contract,  §§  1556,  1557. 

Infants.     See  Infants. 

Insanity  revokes  proposal,  §  1587. 

Lunatics,  competenc}'  of  to  contract,  §§  1556,   1557. 

Lunatics.     See  Insane  Person. 

Parties,  competent,  essential,  §§  1550,  1558. 

Parties,  identification  of,  necessary,  §  1558. 

Parties,  substituting,  §  1531. 

Parties,  who    competent    to    contract,  §§  1556,    1557. 

Who  may  contract,  §§  1556,  1557. 

III.  Essential  elements;  offer;  acceptance;  consent;  conditions  in;  waiver 
of  code  provisions;  effect  of  code  on. 
Acceptance   by  performance  of   conditions,  §  1584. 
Acceptance,  communicated   how,  §  15S2. 

Acceptance,  communication  of  consent  when  deemed  complete,  §  1583. 
Acceptance,  complete,  when,  §  15S3. 

Aceptance,  conditions  attached  to,  to  be  conformed  to,  §  15S2. 
Acceptance,  failure  to  accept  within  time  allowed,  §  1587. 


INDEX.  1039 

CONTRACTS.  III.  Essential  elements;  offer;  acceptance;  consent;  con- 
ditions in;  waiver  of  code  provisions;  effect  of  code  on.  (Con- 
tinued.) 

Acceptance,  failure  to  fulfill  conditions  precedent,  §  1587. 

Acceptance,  must  be  absolute,  §  1585. 

Acceptance,  qualified,  effect  of,  §  1585. 

Acceptance,  receipt  of  consideration  is,  §  1584. 

Acceptance,  voluntary,  of  benefits  of  transaction,  is  assumption  of 
obligations,  §  1589. 

Acceptance,   what   must   be,  §  1585. 

Acceptance  when  deemed  complete,  §  1583. 

Code   does   not  affect   instruments   made  before,  §§  1205,   1206. 

Conditions  in.     See  Obligations. 

Consent,  apparent,  when   not  free,  §  1567. 

Consent,  communicated   how,  §  1581. 

Consent,  communication  of,  when  deemed  complete,  §  1583. 

Consent,  essential  to  contract,  §  1550. 

Consent,  essentials    of,  §  1565. 

Consent,  fraud,  duress,  menace,  mistake,  etc.,  when  deemed  obtained, 
by,  §  1568. 

Consent,  fraud  or  concealment  obtained  by,  contract  not  enforced, 
§3391. 

Consent,  mistake,   obtained   by,   contract  when    enforced,  §  3391. 

Consent,  mistake,  or  surprise,  obtained  by,  contract  not  enforced, 
§3391. 

Consent,  mutual,  when  deemed  to  be  without  regard  to  the  fact, 
§  1580. 

Consent,  mutual,   when   only   is,  §  1580. 

Consent,  not  free,   not   absolutely   void,  §  1566. 

Consent,  not  free,  rescission,  §  1566. 

Consent,  obtained  by  duress,  §§  1567,    1689. 

Consent,  obtained  by  fraud,  §§  1567,   1689. 

Consent,  obtained  by  menace,  §§  1567,  1689. 

Consent,  obtained  by  mistake,  §§  1567,   1689. 

Consent,  obtained  by  undue  influence,  §§  1567,   1689. 

Consent,  ratification  of  contract  voidable  for  want  of,  §  1588. 

Consent,  voluntary  acceptance  of  benefits  of  transaction,  §  1589. 

Consent,  when    deemed   fully   communicated,  §  1583. 

Elements  essential  to,  §  1550. 

Offer,  death  revokes,  §  1587. 

Ratification  of,  when  voidable  for  want  of  consent,  §  1588, 

Revocation   of  offer  by  death,  §  1587. 

Revocation  by  lapse  of  time.  §  1587. 

Revocation,  failure  to   fulfill   conditions   precedent,  §  1587. 

Revocation,  insanity  of  proposer,  §  1587. 

Revocation  of  offer,  right  of,  §  1586. 

Revocation  of  proposal  made  how,  §  1587. 

Revocation  of  proposal,  time  for,  §  1586. 

Waiver  of  code  provisions  respecting,  §3268. 

IV.  Consideration. 

See   Consideration. 
Acceptance  of  is  acceptance  of  proposal,  §  1584. 
Ascertained,  how,  when  contract  does  not  fix  or  determine,  §  1611. 
Ascertained  how,  where  left  to  discretion  of  third  persons,  §  1611. 
Burden  of  proof  to  invalidate,  §  1615. 
Burden  of  proof  to  show  want  of  consideration,  §  1615. 
Effect  of  impossibility  of  ascertaining,  §§  1612,  1613. 
Effect  of  its  illegality  in  part,  §  1608. 


1040  INDEX, 

CONTRACTS.     IV.  Consideration.      (Continued.) 

Exclusive  method  of  ascertaining  which  is  impossible,  effect  of, 
§§ 1612,  1613. 

Executed  or  executory,  may  be,  §  1609. 

Executory,  may  be  left  to  decision  of  third  party,  §  1610. 

Executory,  may  be  regulated  by  any  specified   standard,  §  1610. 

Executory,  need  not  be  specified,  §  1610. 

Executory,  not  necessary  that  contract  furnish  means  of  ascertain- 
ing, §  1610. 

Executory,  subject  to  what  provisions  of  code,  §  1609. 

Existing  legal  obligation   as  a   consideration,  §  1606. 

Failure  of  in  material   respect,  rescission,  §  1689. 

Failure  of  in  whole   or   in   part,   rescission   for,  §  1689. 

Good,  defined,  §  1605. 

Good,  what  is,  §§  1605, 1606. 

Illegal  in  part,  effect  of,  §§  1598,   1608. 

Inadequate,  contract  not  enforced,  §  3391. 

Moral    obligation    as,  §  1606. 

Must   be   lawful,  §  1607. 

Kescission  for  failure   of,  §  1689. 

Sufficient   consideration   is   essential   to   contract,  §  1550. 

Void,  consideration  becoming  from  any  cause,  rescission,  §  1689. 

Written   instrument   presumi)tive   of,  §  1614. 

V,  Execution  and  delivery;  proof  of;  reduction  to  writing;  seal;  when 

take  effect. 

Delivery  of,  takes  effect  on,  §  1626. 

Delivery,  provisions   of  chapter  on  transfers  apply  to,  §  1627. 
Fraud,  prevention  of  reduction  to  writing  by,  enforcement  of,  §  1623. 
Oral,  contracts  may  be,  unless  writing  expressly  required,  §  1622. 
Oral   negotiations   merged   in    writing,  §  1625. 
Proof  of,  by  subscribing  witnesses,  §§  1195-1197. 
Proof  of,  how  made  when  not  acknowledged,  §  1195.     See  Acknowl- 
edgments. 
Sealed  and  unsealed,  distinctions  abolished,  §  1629. 
Seal,  how  affixed,  §  1628. 
Takes  effect   on   delivery,  §  1626. 

Writing  supersedes  oral  negotiations  or  stipulations,  §  1625. 
Written,  what  contracts  must  be.     See  Statute  of  Frauds. 

VI.  Validity  of;  object  of  contracts. 

Ascertainable,  contract  when  void  if  object  is  not,  §  1598. 
Ascertainable,  object  must  be,  §§  1596,  1598. 
Cancellation  of  void  and  voidable  contracts,  §§  3412,  3413. 
Condition  precedent  requiring  performance  of  wrongful  act,  effect  on, 

§709. 
Consent,  effect  of  fraud,  mistake,  duress,  etc.,  §  1567. 
Consent  not  free,  contract  not  void  but  subject  to  rescission,  §  1566. 
Consent,    when    deemed    obtained    by    fraud,    duress,    mistake,    etc., 

§  1568. 
Consideration,  executory,  need  not  be  specified  or  ascertainable  from 

contract,  §  1610. 
Consideration,  impossibility  of  ascertaining,  effect  of,  §§  1612,  1613. 
Contra   bonos   mores,   unlawful,  §  1667. 

Contract   one   cannot   lawfullj-   perform,   not   enforceable,  §  3390. 
Contrary   to   express   provisions   of   law,   are   unlawful,  §  1667. 
Contrary  to  good   morals,  unlawful,  §  1667. 
Damages,  contract  fixing  in   advance,  validity  of,  §§  1670,   1671. 


INDEX.  1041 

CONTBACTS.     VI.  Validity  of;  object  of  contracts.     (Continued.) 

Director   of   corporation,   contract   to   relieve   from   liability,   illegal, 
§327. 

Duress  consists  in  what,  §  1569. 

Exempting  one  from  liability  for  fraud,   unlawful,  §  1668. 

Exempting  one  from  liability  for  violation  of  law,  unlawful,  §  1668. 

Exempting  one  from  willful  or  negligent  acts,  unlawful,  §  1668. 

Fraud,  actual,  a  question  of  fact,  §  1574. 

Fraud,  actual,  what   constitutes,  §  1572. 

Fraud,  constructive,    defined,  §  1573. 

Fraud,  effect    of,    on    oral    contract    not    in    writing   through    fraud, 
§  1623. 

Fraud,  exempting  one  from  liability  for,  unlawful,  §  1668. 

Fraud,  is  actual  or  constructive,  §  1571. 

Fraud,  prevention   of  reduction  to  writing  by,  enforcement   of  con- 
tract, §  1621. 

Illegal  in  part,  effect  of,  §§  1598,  1599,   1608. 

Impossibility  avoids  contract,  §  1598. 

Impossibility,  object  must  be  possible  and  ascertainable,  §§  1596,  1598. 

Impossibility  is  what,  §  1597. 

Impossibility,  what  deemed  to  be  possible,  §  1597. 

Impossible,  contract  when  void  if  object  is,  §  1598. 

Indemnity  against  wrongful  acts,  effect  of,  §§  2773,  2774. 

Insurance  contracts,  validity  of.     See  Insurance,  IV. 

Lawful,  object  of  contract  must  be,  §  1596. 

Lawful,  unlawful  in   part,   effect   of,  §  1599. 

Lien,  coTntract  creating,  providing  for  forfeiture  void,  §  2889. 

Lien,  contract  in  restraint  of  right  of  redemption,  void,  §  2889. 

Liquidated  damages,  provision  for,  §§  1G70,  1671. 

Marriage,  contract  in  restraint  of,  void,  §  1676. 

Menace  consists  in  what,  §  1570. 

Mistake  may  be  of  fact  or  law,  §  1576. 

Mistake  of  fact,    what    is,  §  1577. 

Mistake  of  foreign  law  is  mistake  of  fact,  §  1579. 

Mistake  of  law,  what  is,  §  1578. 

Object,  contract  restricted  to  evident  object,  §  1647. 

Object,  lawful,  essential  to,  §  1550. 

Object  of,  is  what,  §  1595. 

Object  of,  must  be  ascertainable,  §§  1596,  1598. 

Object  of,  must  be  lawful,  §§  1596,  1598,  1599. 

Object  of  must  be  possible,  §§  1596,    1598. 

Object  of,  to  be  lawful  and  possible,  §  1596. 

Parties,' identification  of,  necessary,  §  1558. 

Possible,  object  must  be,  §§  1596,   1598. 

Public  policy,  contracts  against,  §§  1667,  1668. 

Eatification  of  contract  voidable  for  want  of  consent,  §  1588. 

Restraint  of  marriage,  in,  void,  §  1676. 

Restraint  of  trade,  on  dissolution  of  partnership,  §  1675. 

Restraint  of  trade,  on  sale  of  good-will,  §  1674. 

Restraint  of  trade,  validity  of  contracts  in,  §§  1673-1675. 

Servant,  contract  by,  waiving  liability  for  negligence  void,  §  1970. 

Statute  of  frauds.     See  Statute  of  Frauds. 

Stipulation  in  bottomry  for  personal  liability,  void,  §  3024. 

Undue  influence  defined,  §  1575. 

Undue  influence,  what  constitutes,  .§  1575. 

Unlawful  contract,  rescission  of,  §  3406. 

Unlawful,  contract,  when   void  and   when   voidable  where   object  is, 
§§  1598,  1599. 
Civ.  Code — 6G 


1042  INDEX. 

CONTRACTS.     VI.  Validity  of;  object  of  contracts.     (Continued.) 
Unlawful,  guarantor  not  liable  if  contract  is,  §  2810. 
Unlawful  in  part,  effect  of,  §§  1598,  1599,   1608. 
Unlawful,  when,  §§  1667,  1668. 

Void  as  to  principal,  liability  of  guarantor  where  contract  is,  §  2810. 
Void,  because  unlawful,  impossible,  unascertainable,  §§  1598,  1599. 
Void,  contract  fixing  damages,   effect   of,  §§  1670,  1671. 
Void,  contract  to  relieve   directors   or   trustees  from  liability,  §  327. 
Void  in  part,  effect  of,  §§  1598,  1599,  1608,  1613. 

VII.  Construction  of. 

Accident,  contract  not  expressing  intent  because  of,  intent  governs, 
§  1640. 

Ambiguities  interpreted  against  promisor,  §§  1649,   1654. 

Code  provisions  subordinate  to  provisions  of  contract,  §  3268. 

Conflict  of  laws,  law  governing,  §  1646. 

Construed  against  promisor,  §  1654. 

Each  part  helps  to  interpret   other  parts,  §  1641. 

Effective,  contract  construed  so  as  to  make  it,  §  1643. 

Effect    to   be    given    to    every    part,  §  1641. 

Effect  to  be  given  to  mutual  intention,  §  1636. 

Erroneous  parts  disregarded,  when,  §  1640. 

Explaining  by  circumstances,  §  1647. 

Explaining  by  matter  to  which  it  relates,  §  1647. 

Expression  of  some  incidents  in  contract  excludes  others,  §  1656. 

Failure  to  express  real  intention  through  fraud,  accident,  or  mistake, 
how  construed,  §  1640. 

Fraud,  contract  not  expressing  intent  because  of,  intent  governs, 
§  1640. 

General  intent,  particular  clause  subordinate  to,  §  1650. 

Giving   effect   preferred,  §  3541. 

Implied,  necessary  incidents   are,  §  1656. 

Implied,  reasonable  stipulations  may  be,  §  1655. 

Incidents,  expression  of  some  excludes  others,  §  1656. 

Incidents,  what  implied  in  contract,  §  1656. 

Inconsistent  words  rejected,  §  1653. 

In  favor    of    contract,  §  1643. 

In  general,  §  1636. 

In  sense  promisor  believed  promise   relied,  §  1649. 

Intent  governs  where  writing  fails  to  express  it  through  fraud,  mis- 
take,  or   accident,  §  1640. 

Intent,  mutual,  interpretation  to  give  effect  to,  §  1636. 

Intention,  ascertained  from  language,  §  1638. 

Intention,  ascertained  from  writing  alone,  generally,  §  1639. 

Intention,  giving  effect   to,  §  1636. 

Intention,  rules  for  ascertaining,  where   doubtful,  §  1637. 

Interpretation,  giving  effect  preferred  to  interpretation  making  void, 
§  3541. 

Joint  and  several,  when  is,  §  1659.     See  Joint. 

Language  of  contract  to  govern,  §  1638. 

Law  and  usage  of  place  of   performance   to   govern,  §  1646. 

Law  and  usage  of  place  where  made  governs  where  no  place  of  per- 
formance, §  1646. 

Mistake,  contract  not  expressing  intent  because  of,  intent  governs, 
§  1640. 

Necessary   incidents   implied   in,  §  1656. 

Original  parts  control  parts  copied  from  form,  §  1651. 

Particular  clause,  subordinate  to  general  intent,  §  1650. 


INDEX.  1043 

CONTRACTS.     VII.  Construction  of.     (Continued.) 

Particular  expressions  qualify  general,  §  3534. 

Printing,  writing  controls,  §  1651. 

Promisor,    ambiguities    interpreted    against,  §§  1649,    1654. 

Eeasonable,  must  be,  §  3542. 

Reasonable  stipulations   are  implied  in,  §  1655. 

Repugnancies  between   writing  and  printing,  §  1651. 

Repugnancies  reconciled,  how,  §  1652. 

Repugnancy  between  original  part  and  copied  part,  §  1651. 

Restricting  to  evident  object,  §  1648. 

Restricting  to  tilings  concerning  wliich  parties  intended  to  contract, 
§  1648. 

Several   contracts  taken   together,  when,  §  1642. 

Technical  words,  of,  §§  1644,  1645. 

Time  of  performance,  §  1657. 

Uncertainty  construed  most  strongly  against  whom,  §§  1649,  1654. 

Uncertainty  presumed  caused  by  whom,  §  1654. 

Uniformity   of,   whether    contract   public   or   private,  §  1635. 

Whole   contract  to  be  taken  together,  §  1641. 

Words  having  special  meaning  by  usage,  §  1644. 

Words  to   be   understood   in   usual   sense,  §  1644. 

Words  used  in  technical  sense,  construction  of,  §§  1644,  1645. 

Writing   controls   printing   in,  §  1651. 

Writing,  failing  to   express  intent  through  fraud,  etc.,  disregarded, 
when,  §  1640. 

VIII.  Performance. 
1.  Generally. 

Alternative  obligation.     See  Obligations. 

Application  of  general  performance,  §  1479. 

Application  of  performance.     See  Obligations. 

Conditional   obligations.     See   Conditional. 

Condition  concurrent,  §  1498. 

Condition  precedent,  §  1498. 

Condition  precedent,  when  necessary,  §  1439. 

Creditor,  performance  according  to  directions  of,  effect  of,  §  1476. 

Full  performance  by  obligor  or  another  for  him  extinguishes  obliga- 
tion, §  1473. 

In  mode  directed  by  creditor,  sufficient,  §  1476. 

Joint  creditor,  to,  extinguishes  except  where   deposit  by  co-owners, 
§  1475. 

Joint  obligation,  performance  under  direction  of  one  creditor,  effect 
of,  §  1476. 

Joint  obligor,  performance  by  extinguishes  obligation  of  all,  §  1474. 

Offer  of  performance  stops  interest,  §  1504. 

Payment,  performance  when  called,  §  1478. 

Performance  of  conditions  of  proposal,  on  acceptance,  §  1584. 

Retention  of  thing  which  creditor  refuses  to  accept,  effect  of,  §  1505. 

Specific  performance.     See  Specific  Performance. 

2.  Time  of. 

Delay  in  and  compensation  for,  §  1492. 

Delay  in,  eft"ect  of  where  it  can  be  compensated,  §  1492. 

Essence  of  contract,  where  not  stipulated  to  be,  §  1492. 

Holiday,  when   time  for  falls   on,  §  11. 

Time  of  offer  of,  §§  1490,   1491. 

Time  of  offer.     See   post,  VIII,  4. 

Where  act  is  in  its  nature  capable  of  being  done  instantly,  §  1657. 

Where  no  time  specified,  §  1657. 


1044  INDEX. 

CONTRACTS.     VIII.  Performance.     (Continued.) 

3.  Excuse,  prevention  or  waiver  of. 

Act  of  God  excuses  performance,  §  loll. 
Excused,  performance  is  by   what   acts,  §§  14-iO,   1511. 
Prevention  by  creditor,  effect  of,  §§  1511,  1512. 

Prevention  other  than  by  act  of  creditor,  ratable  proportion  of  con- 
sideration, §  1514. 
Public  enemies,  acts  of,  excuses,  §  1511. 
Eefusal  to  accept,  before  offer,  effect  of,  §  1515. 
Waiver  of  demand  of  performance  by  refusal  to  perform,  §  3004. 

4.  Offer  of. 

Ability  and  willingness  essential,  §  1495. 

Ability  and  willingness,  when  equivalent  to,  §  3130. 

By  whom  to  be  made,  §  1487. 

Compensation  for  delay,  with,  §  1492. 

Condition  precedent,  offer  may  be  made  to  depend  upon  due  per- 
formance of,  §  1498. 

Conditions,  may  be  made  dependent  upon  performance  of,  §  1498. 

Conditions  concurrent,   of,  when  necessary,  §  1439. 

Conditions,  to  be  free-  from,  §  1494. 

Custody  and  care  of  thing  offered,  §  1503. 

Effect  of,  on  accessories  of  obligations,  §  1504. 

Exonerates  surety,  by  any  person,  §  2839. 

Extinguishes    obligation,  §  1485. 

Extinguishes  obligations  for  payment  of  money,  when,  §  1500. 

Good  faith,  to  be  in,  §  1493. 

Interest,  stops  running  of,  §  1504. 

Lien   redeemed   by,  §  2905. 

Manner  of,  §  1493. 

Objections  to  waived,  if  not  stated,  §  1501. 

Partial,  offer  of,  of  no  effect,  §  1486. 

Party  must  be  able  and  willing  to  perform,  §  1495. 

Passes  title  to  personal  property  under  executory  agreement  of  sale, 
§  1141. 

Produced,  thing  offered  need  not  be,  unless  offer  accepted,  §  1496. 

Receipt  may  be  required  upon,  §  1499. 

Refusal  to  accept  performance  before,  effect  of,  §  1515. 

Retention  of  thing  which  creditor  refuses  to  accept,  effect  of,  §  1505. 

Separate,  thing  offered  to  be  kept,  §  1497. 

Time  of,  §§  149U,  1491. 

Time  of,  delay  in  and  compensation  for,  §  1492. 

Time  of,  delay  in,  effect  of  where  it  can  be  compensated,  §  1492. 

Title   to   thing   offered   passes  when,  §  1502. 

To  whom  made,  §  1488. 

Unconditional,  must  be,  §  1494. 

Vests  in  creditor,  thing  offered,  §§  1502,  1503. 

When  excused,  §§  1440,   1511. 

W^hen  to  be  made,  §§  1490,  1491. 

Where  made,  §§  1488,  1489. 

Whom  made  to,  §  1488. 

Who  to  make,  §  1487. 

5.  Partial. 
Effect  of,  §  1477. 

Extinguishes  obligation  when,  §  1524. 

Guarantor,  effect  on,  of  principal's  accepting,  §  2822. 

Lien,   does  not  extinguish,  §  2912. 


INDEX.  1045 

CONTEACTS,     VIII.  Performance.     5.  Partial.     (Coutiuued.) 
Makes  oral  contract  of  sale  valid,  §  1741. 
Offer  of,  of  no  effect,  §  1486. 

IX.  Alteration;  cancellation;  release;  extinction. 

Alteration  of  duplicate,  effect  of,  §  1701. 

Alteration  of  parol  contract,  how  may  be  made,  §  1697. 

Alteration  of  verbal,   consideration   not  necessary,  §  1697. 

Alteration  of  written,  how  made,  §  1698. 

Alteration,  unauthorized,   extinction   by,  §  1700. 

Alteration  of.     See  Alteration. 

Cancellation,  extinction  by,  §  1699. 

Cancellation  of  instruments,  §§  3412-3414. 

Cancellation  of.     See   Cancellation. 

Destruction,   extinction  by,  §§  1699,   1700. 

Destruction  of  duplicate,  effect  of,  §  1701. 

Duplicate,  destruction  or  cancellation  of,  effect  of,  §  1701. 

Extinction  by  alteration,  §  1700. 

Extinction  by  cancellation,  §§  1699,   1700. 

Extinction  by  performance.     See   ante,   VIII,   1. 

Extinguished,  how,  §  1682. 

Full  performance  by  obligor  or  another  for  him  extinguishes  obliga- 
tion, §  1473. 

TsTovation.     See  Novation. 

Offer  of  payment  and  deposit  of  money  in  bank,  extinguish  obligation, 
§  1500. 

Release  of  obligation,  §§  1541-1543.     See  Release. 

Rescission.     See  Rescission. 

Signature,  destruction  or  cancellation  of,  §  1699. 

X.  Actions  on;   liability  under. 

Assuming  obligation   by   accepting  benefits,  §  1589. 

Benefit,  one  taking,  must  bear  burden,  §  3521. 

Breach  of  contract,  when  not  enjoined,  §  3423. 

Damages,  measure  of,  for  breach  of,  §  3300. 

Damages,  measure  of,  for  breach  of  contract  to  pay  liquidated  sum, 

§  3302. 
Damages  must  be   certain,  §  3301. 
Damages,  nominal,  when  recoverable,  §  3360. 
Damages,  reasonable,   only   recoverable,  §  3359. 
Damages.     See  Damages. 
Proof  of  execution    of    instrument    not    acknowledged,    how    made, 

§  1195. 
Proof   of   instrument.     See   Acknowledgments;    Instrument. 
Relief,  specific  and  preventive,  §  3274. 
Third  person,  enforcing  contract  for  benefit  of,  §  1559. 

CONTRIBUTION.     See  Suretyship. 

Between  joint  or  joint  and  several  obligors,  §  1432. 

General   average  loss,   to,  §  2152. 

Indemnity  to  insured  who  has  a  right  of,  §  2746. 

Insurance,  double,  contribution  in  case  of,  §  2642. 

Insurance,  marine,  in  case  of  partial  or  average  loss,  §  2642. 

Insurance,  where  premium  to  be  returned  by  several  insurers,  §§  2621, 

2622,   2745. 
Insurance,  where  several  policies  on  property,  §  2757. 
Release  of  joint  debtor  as  affecting  right  to,  §  1543, 
Surety's  right  to,  §  2848. 


1046  ^        INDEX. 

CONTRIBUTORY  NEGLIGENCE.     See  Negligence. 
Bars  right  to  relief,  §  1714. 

CONTROLLER  OF  STATE. 

Corporation  to  transmit  selection  of  right  of  way  to,  §  478. 
Duty   where   property   escheats   to   state,  §  1406. 

CONVERSION. 

By  lienor  extinguishes  lien,  §  2910.     ■ 
Damages  for,  §§  33.36,  3337,  3338. 
Equitable,  when  takes  place,  §  1338. 
In  general,  §§  1712,  1713. 
Lien  extinguished  by,  §  2910. 
One  guilty  of,  must  restore  property,  §  1712. 

Restoration  to  be  without  demand  except  in  cases  of  mistake,  §  1713. 
Wrongfully  using  materials  of  another,  wrongdoer  liable  in  damages, 
§  1033. 

CONVEYANCES.     See  Deeds;  Transfers. 
After-acquired  title  passes,  §  1106. 
Agent  may  give  covenant  of  warranty,  §  2324. 
Agreement   to    convey    binds    one    to    execute   sufficient    conveyance, 

§  1731. 
Agreement  to  convey,  covenants,  §§  1733,  1734. 
Agreement  to  convey,  effect  of,  §  1731. 
Agreement  to  convey,  specific   performance,  §  1741. 
Agreement  to  convey,  statute   of  frauds,  §  1741. 
Attorney  in  fact,  how  to  execute,  §  1095. 

Bona  fide  purchaser  or  encumbrancer,  rights  of  subsequent,  §  1107. 
Cancellation  of  grant  does  not  retransfer  title,  §  1058. 
Cancellation  of  instruments,  in  general,  §§  3412-3414. 
Certificate  of  proof  of  execution,  what  to  state,  §  1200. 
Changed   names,  by  persons  with,  §  1096. 
Code  does  not  affect  conveyances  made  before,  §§  1205,  1206. 
Community   property,   of,   wife's   consent,  §  172. 
Conclusive,  as  to  parties  and  privies,  how  far,  §  1107. 
Condition  precedent,  grant  on,  effect  of,  §  1110. 
Conditions  subsequent,   reconveyance   on   non-performance,  §  1109. 
Conditions  in.     See  Conditions. 
Constructive  delivery,  §  1059. 
Covenants,  agent's   authority  to   give,  §  2324. 
Covenants,  agreement  to  give,  s  1733. 
Covenants,  form  of,  §  1734. 
Covenants,  implied,  §  1113. 
Covenants  running  with  land,  §§  1460-1468. 
Covenants,  who  bound  by  and  who  not,  §§  1465,  1466. 
Covenants.     See  Covenants.  — 

Damages  for  breach  of  agreement  to  buy,  §  3307. 
Damages  for  breach  of  agreement  to  convey,  §  3306. 
Damages  for  breach  of  covenants,  §  3304. 

Damages  for  breach  of  covenants   against   encumbrances,  §  3305. 
Date  of  delivery,  presumption  as  to,  §  1055. 
Deemed  mortgage,  when,  §  2924. 
Defect  in,  curing,  §  1207. 
Defined,  §  1215. 

Delivery,  constructive,  what  deemed  to  be,  §  1059. 
Delivery,  date  of,  presumption  as  to,  §  1055,    . 
Delivery  in  escrow,  §  1057. 
Delivery  necessary,  §  1054, 


INDEX.  1047 

CONViJYANCES.      (Continued.) 

Delivery,  redelivery  does  not  revest  title,  §  1058. 

Delivery  to  grantee  or  agent  cannot  be  conditional,  §  1056. 

Delivery  to   third   persons,  §  1059. 

Easements  pass  with,  §  1104. 

Encumbrance   includes   what,  §  1114. 

Escrow,  definition,  §  1057. 

Escrow,  delivery    in,  §  1057. 

Executed  before  code,  law  governing,  §§  1205,  1206. 

Execution  may  be  proved  by  handwriting  when,  §  1198. 

Execution  of,   how   proved    when   not   acknowledged,  §  1195. 

Fee  presumed  to  pass,  §  1105. 

Fee,  words  of  inheritance  unnecessary  to,  §  1072. 

Fee,  words  of  succession    unnecessary   to,  §  1072. 

Form    of,  §  1092. 

Fraudulent,  §§  1227-1231. 

Fraudulent.     See  Fraudulent  Conveyances. 

"Grant,"  covenants  implied   from   use   of   word,  §  1113. 

"Grant"  includes  what  instruments,  §  1053. 

Grant  includes  whatever  essential  to  its  use,  §  3522. 

Grant.     See  Grant. 

Heirs,  and  issue,  interpretation  of,  §  1071. 

Heir's  conveyance  good,  unless  will  proved  or  notice  of  devise  filed 

within  four  years,  §  1364. 
Highway,  transfer  bounded  by,  passes  what,  §  1112. 
Homestead  conveyed,  how,  §  1242. 
How  property  transferred,  §  1091. 
Incidents  follow  thing  transferred,  §  1084. 
Incidents,  transfer  of,  does  not  pass  principal  thing,  §  1084. 
Infant's,  effect  of,  §  33. 

Inheritence,  words  of,  not  necessary  to  pass  fee,  §  1072. 
Interest  subsequently  acquired  passes  by  operation  of  law,  §  1106. 
Interpretation  against  grantor, §  1069. 

Interpretation,  grant  by  public,   in   favor   of  grantor,  §  1069. 
Interpretation,  grants  interpreted   as   other  contracts  are, §  1066. 
Interpretation  of  heirs   and   issue,  §  1071. 
Interpretation  of,  in   general,  §  1066. 
Interpretation  of,  irreconcilalDle   provisions,  §  1070. 
Interpretation  of  limitations,  §  1067. 
Interpretation,  recourse  to  recitals,  §  1068. 
Interpretation,,  reservation,  in  favor  of  grantor,  §  1069. 
Irreconcilable  provisions,  interpretation,  §  1070. 
Issue  and  heirs,  interpretation  of,  §  1071. 

Judgment   proving  instrument,   entitles  instrument  to  record,  §  1204. 
Lien  for  unpaid  price,  vendor  has,  §  3046. 
Lien  of  vendee,  §  3050. 
Lien  of  vendor,  §§  3046-3048. 
Lien  of  vendor,  against  whom  valid,  §  3048. 
Lien  of  vendor,  waiver  of  by  transfer  of  contract,  §  30.47. 
Limitation  in,  how  only  controlled,  §  1067. 
Married  woman's,  acknowledged,  how,  §  1093. 
Married  woman's,  effect  of,  §^1187. 
Married  woman's,  how  executed,  §  1093. 

Married  woman's,  power  of  attorney  acknowledged  how,  §  1094. 
Modes  of  transfer,  §  1091. 
Mortgage,  transfer  deemed  a,  when,  §  2924. 
Name,   change   of,   conveyance  in   case  of,  §  1096. 
Operation   of  law,  by,  §  1091. 
Operation   of  law,  subsequently  acquired  title  passes  by,  §  1106, 


1048  INDEX. 

CONVEYANCES.      (Continued.) 
Owner  for  life,  by,  §  1108. 
Owner  for  years,  by,  §  1108. 
Power  of   attorney  by  married  woman,  §  1094. 
Proof  of,  action  for,  and  effect  of  the  judgment,  §§  1203,  1204. 
Proof  of  execution,  certificate  of, §  1200. 
Eecitals   resorted   to   in   interpretation,   when,  §  1068. 
Eeconvey  title,  surrendering  or  canceling  grant  does  not,  §  1058. 
Record  as  notice,  §  1213. 
Record  as  notice,  curative  act,  §  1207. 
Recording.     See  Recording. 
Redelivery  does  not  retransfer  title,  §  1058. 
Remainders,   of,   attornment,  §  1111. 
Rents,  of,  attornment,  §  1111. 
Requisities  of,  §  1091. 

Reservation  interpreted  in   favor  of  grantor,  §  1069. 
Reserving   power   to   revocation,  §§  1229,    1230. 
Reversion,  of,  attornment,  §  1111. 
Revocation,  reserving  power  of,  §§  1229,   1230. 
Statute  of  frauds  §§  1091,  1624. 
Stranger,  grant  may  inure  to,  §  1085. 

Subscribing  witnesses,  manner  of  proving  by,  §§  1196-1199. 
Succession,  words  of,  unnecessary  to  pass  fee,  §  1072. 
Third  person  not  named,  grant  mav  inure  to  Ijenefit  of,  §  lOSo. 
Title,  what  passes,  §  1083. 
Transfer,  modes  of,  §  1091. 
Unrecorded,  goods  between  parties.  §  1216. 
Unrecorded,  void  as  to  whom,  §  1214. 
Warranties,  liability  on,  §  1115. 
Warranties,  lineal  and  collateral  abolished,  §  1115. 
Warranty,  agent  may  give  covenant  of,  §  2324. 
What  law  governs  where  made  before  code,  §§  1205,  1206. 
Will,  effect  on,  §§  1301,  1303,  1304. 
Words  of  inheritance  not  necessary,  §  1072. 
Writing,  what  transfers  to  be  in,  §§  1091,  1624. 

CO-OPERATIVE  ASSOCIATIONS.  See  Associations;  Benefit  Societies: 
Boards  of  Trade;  Chambers  of  Commerce,  Boards  of  Trade, 
Mechanic's  Institutes  and  Kindred  Associations;  Co-operative 
Business  Associations;  Co-operative  Business  Corporations;  Co- 
operative Non-profit  Agricultural,  Viticultural,  and  Horticultural 
Associations;  Non-profit  Co-operative  Corporations;  Pioneer 
Society;  Protective  .Associations. 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS.  See  Co-operative  Busi- 
ness Corporations. 

Articles  of  association,  subscribing  and  acknowledging,  §  653d. 

Articles  of  association  to  be  prepared,  §  653d. 

Articles  of  association,  what  to  state,  §  653d. 

Articles  of  association,  where  to  be  filed.  §  653d. 

Attorney-general  may  inquire  into  right  to  do  business,  §  653k. 

By-laws,  amendment  of,  §  053e. 

By-laws  and  amendments,  to  be  recorded  and  kept  in  ofllce,  §  6o3e. 

By-laws,  certified  copy  to  be  filed  with  county  clerk,  §  653e. 

By-laws,  majoritj-  of  members  to  adopt,  §  653e. 

By-laws  to  be  adopted  within  forty  days,  §  653e. 

By-laws  to  be  written  in  book  and  subscribed  by  members,  §  653e. 

Bv-laws  to  provide  amount  of  indebtedness  that  can  be  incurred, 
§  653c. 


iNDEl:?^.  1049 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS.      (Continued.) 
By-laws,  what  may  provide,  §  GoSa,  653e. 
Business,  mode  and  manner  of  conducting,  §  653e. 
Capital  stock,  to  have  none,  §  653b. 

Certificate,  when  to  be  issued  by  secretary  of  state,  §  653d. 
Consolidation  of,  authorized,  §  653i. 
Consolidation  of,  agreement  of,  filing  and  recording  of  and  fees  for, 

§  653i. 
Consolidation  of,  agreement  of,  signing  and  acknowledging,  §  653i. 
Consolidation  of,  agreement  of,  what  to  state,  §  653i. 
Consolidation  of,  effect  of,  §  653i. 
Consolidation  of,  how  effected,  §  653i. 

Debts,  property  subject  to  attachment  and  execution  for,  §  653f. 
Directors,  election,  term  of  office,  and  removal,  §  653e. 
Directors,  number  of,  §  653c. 
Directors,  vacancies,  filling,  §  653e. 

Dissolution  and  winding  up  of,  appointment  of  receiver,  §  653j. 
Dissolution  and  winding  up  of  authorized,  §  653j. 
Dissolution  and  winding  up,  manner  of,  §  653j. 
Dissolution  and  winding  up  of,  proceedings  on,  §  653j. 
Elections,  each  member  entitled  to  one  vote,  §  653c. 
Elections,  mode  and  manner  of  conducting,  §  653e. 
Fees,  dues,  installments,  or  labor,  §  653e. 
Formation,  five  or  more  persons  may  form,  §  653b. 
Formation,  purpose  for  whieji  may  be  formed,  §6o3b. 
Indebtedness,  by-laws  to  provide  amount  that  can  be  incurred,  §  653c. 
Indebtedness,  liability  of  members,  §  653c. 
Insolvency,    compelling   payment    of   unpaid    dues   and   installments, 

§  653c. 
Meetings,  manner  of  calling  where  by-laws  provide  method,  §  653ha. 
Meetings,  manner  of  calling  where  not  provided  for  in  constitution  or 

by-laws,  §  653ha. 
Meeting,  manner  of  calling  where  proper  officer  refuses  or  fails  to 

act,  §  653ha. 
Meetings,  time,  place,  and  manner  of  calling  and  conducting,  §  653e. 
Member,  attachment  of  or  execution  against  interest  of,  §  653f. 
Member,  death  of,  §  653e. 
Members,  expulsion,  §  653e. 
Members,  liability  for  indebtedness,  §  653c. 
Members,  mode  and  manner  of  succession,  §  653e. 
Members,  payment   of  unpaid   dues   and   installments   on   insolvency, 

§  653e. 
Members,  qualifications,  §  653e. 
Members,  rights  of  are  equal,  §  653e. 
Members,  rights  of  association  where  interest  sold  under  execution, 

§  653f. 
Members,  rights  of  purchasers  of  interest  of  under  execution,  §  653f. 
Members,  withdrawal  of,  §  653e. 

Membership  certificates  to  be  issued  to  members,  §  653b. 
Membership  certificates,  assignment  and  transfer  of,  §  653b. 
Membership,  who  eligible  to,  §  653c. 

Officers,  number,  appointment,  removal,  and  compensation,  §  653e. 
Powers  of  enumerated,  §  653h. 
Profits,  adding  to  the  funds,  §  653e. 
Profits,  division  of,  time  and  manner  of,  §  653e. 
Purpose  for  which  may  be  formed,  §  653b. 
Purpose  of,  how  altered,  modified  or  enlarged,  §"  653g. 
Quo  warranto  to  inquire  into  right  to  do  business,  §  653k. 
Eeceiver  when  only  can  be  appointed  for,  §  653j. 


1050  INDEX. 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS.      (Continued.) 

Eights  ■where  interest  of  member  sold  under  execution,  §  653t". 
What  corporations  not  affected  by  provisions  relating  to,  §  653  1. 

CO-OPERATIVE  BUSINESS  CORPORATIONS.     See  Co-operative  Busi- 
ness Associations. 
Profits,  amount  to  be  divided,  by-laws  may  provide,  §  6o3a. 
Profits,  manner  of  division,  by-laws  may  provide,  §  653a. 
Purposes  for  which  may  be  formed,  §  653a. 

CO-OPERATIVE     CORPORATIONS.     See     cross-references     under     Co- 
operative Asi^ociations. 

COPYRIGHT.     See  Literary  Property. 

CORPORATIONS. 

I.  Definitions;  nature  and  kinds  of. 
II.  Effect  of  code  on;  code  provisions  applying  to;  continuance  under; 
amendment  or  repeal  of  law. 

III.  Formation  and  organization;  name  of. 

IV.  Articles  of  incorporation. 

V.  Term  of  existence,  extension  of. 
VI.  By-laws. 
VII.  Directors. 

VIII.  Oflacers  other  than  directors;   employees;  financial  statement  of 
affairs. 
IX.  Elections. 
X.  Meetings. 

XI.  Records,  books  and  journals;  lost  or  burnt  records,  bonds,  stock, 
etc. 
XII.  Powers;    contracts;    actions;    changing  residence;     bonded   debt; 
transferring  business,  property  or  franchises. 

XIII.  Stock  and  stockholders;  common  and  preferred  stock;   members; 

personal  liability. 

XIV.  Dividends. 
XV.  Assessments. 

XVI.  Sale  of  franchise  under  execution. 

XVII.  Dissolution;   nonuser;   examining  into  affairs;   attack  upon. 
XVIII.  Foreign. 

Agricultural  fair  corporations.     See  Agricultural  Fair  Corporations. 

Associations.     See  Associations. 

Banking.     See  Banks  and  Banking. 

Benefit  societies.     See  Benefit  Societies. 

Benevolent.     See  E'eligious,  Social  and  Benevolent  Corporations. 

Boards  of  trade.  See  Chambers  of  Commerce,  Boards  of  Trade. 
Mechanics'  Institutes  and  Kindred  Associations. 

Bridge.     See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 

Building  and  loan.     See  Building  and  Loan  Corporations. 

Cemetery.     See  Cemetery  Corporation. 

Chambers  of  commerce.  See  Chambers  of  Commerce,  Boards  of 
Trade,  and  Mechanics'  Institutes. 

Chute.     See  Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corporations. 

Colleges  and  seminaries  of  learning.  See  Colleges  and  Seminaries  of 
Learning. 

Co-operative  business  associations.  'See  Co-operative  Business  Asso- 
ciations. 


INDEX.  1051 

CORPORATIONS.      (Continued.) 

Co-operative  business  corporations.  See  Co-operative  Business  Cor- 
porations. 

Corporation  sole.  See  Corporation  Sole;  Keligious,  Social,  and  Benev- 
olent  Corporations. 

Cruelty  to  animals,  societies  to  prevent.  See  Societies  for  Preven- 
tion of  Cruelty  to  Children  and  Animals. 

Cruelty  to  children,  societies  to  prevent.  See  Societies  for  Preven- 
tion of  Cruelty  to  Children  and  Animals. 

Electric.     See  Lighting  Corporations. 

Ferry.     See  Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corporations. 

Fraternal.     See  Religious,  Social  and  Benevolent  Corporations. 

Friendly.     See  Friendly  Society. 

Gas  corporations.     See  Gas  Companies;  Lighting  Corporations. 

Hall,  corporations  formed  to  erect.     See  Halls. 

Heating  corporations.     See  Heating  Corporations. 

Homestead.     See  Homestead  Corporation. 

Insurance.     See  Insurance  Corporation. 

Irrigation.     See  Water  and  Canal  Corporations. 

Land  and  building.     See  Building  and  Loan  Corporations. 

Land  and  water.     See  Land  and  Water  Corporations. 

Lighting  corporations.     See  Lighting  Corporations. 

Literary  corporations.     See  Literary  Corporations. 

Lodges,  corporations  to  erect.     See  Lodges. 

Mechanics'  institutes.  See  Chambers  of  Commerce,  Boards  of  Trade, 
Mechanics'  Institutes  and  Kindred  Associations. 

Mining  corporations.     See  Mining  Corporations. 

Mortgage  insurance  corporations.  See  Mortgage  Insurance  Com- 
panies. 

Mutual  benefit  and  life  associations.  See  Mutual  Benefit  and  Life 
Associations. 

Mutual  life,  health,  accident  and  annuity  insurance  on  asseessment 
plan.  See  Mutual  Life,  Health,  Accident  and  Annuity  Insur- 
ance on  Assessment  Plan. 

Non-profit  co-operative  agricultural,  viticultural,  and  horticultural 
associations.  See  Non-profit  Co-operative  Agricultural,  Viticul- 
tural and  Horticultural  Associations. 

Non-profit  co-operative  corporations.  See  Non-profit  Co-operative 
Corporations. 

Pier.     See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 

Pioneer  associations.     See  Pioneer  Associations. 

Profit,  associations  for  purposes  other  than.  See  Religious,  Social 
and  Benevolent  Corporations. 

Protective  associations.     See  Protective  ^Associations. 

Railroad.     See  Railroad  Corporations;   Street  Railway  Corporations. 

Religious,  etc.     See  Religious,  Social  and  Benevolent  Corporations. 

Savings  and  loan.  See  Banks  and  Banking,  II;  Savings  and  Loan 
Corporations. 

Scientific  corporations.     See  Scentific  Corporations. 

Seminaries  of  learning.     See  Colleges  and  Seminaries  of  Learning. 

Social.     See  Religious,  Social,  and  Benevolent  Corporations. 

Societies  for  prevention  of  cruelty  to  children  and  animals.  See 
Societies  for  Prevention  of  Cruelty  to  Children  and  Animals. 

Street  railway.     See  Street  Railway  Corporations. 

Telegraph.     See  Telegraph  Corporation. 

Telephone.     See  Telephone  Corporations. 

Trust  companies.     See  Trust  Companies. 

Wagon-road.     See  Wagon-road  Corporations. 

W^ater  and  canal.     See  Water  and   Canal  Corporations. 

Wharf.     See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 


1052  INDEX. 

CORPORATIONS.     (Continued.) 

I.     Definitions;  nature  and  kinds  of. 
A  person,  corporation  is,  §  14. 
Are  public  or  private,  §  284. 
Classes  of,  §  284. 
Defined,  §  283. 

"Person"   includes   corporation,  §  14. 
Private,  defined,  §  284. 
Public  and  private  distinguished,  §  284. 
Public,  defined,  §  284. 
Public  or  private,  are,  §  284. 
Purposes,  may  be  formed  for  any,  §  286. 

II.  Eflfect  of  code  on;  code  provisions  applying  to;  continuance  under; 
amendment  or  repeal  of  law. 

Amendment  of  law,  effect  on  rights  against,  §§  403,404. 

Amendment  of  law,  power  of  reserved,  §§  403,  404. 

Amendment  or  dissolution  of  laws,  effect  on  rights  and  remedies 
against,  §§  403,  404. 

Code  provisions  relating  to  co-operative  business  corporations  do  not 
apply  to,  §  6531. 

Code  provisions  relating  to  non-profit  co-operative  business  corpora- 
tions do  not  apply  to,  §  633za. 

Code  provisions,  to  what  corporations  apply,  §  403. 

Continuance  under  code,  proceedings  for,  §  287. 

Existing,  not  affected  by  code,  §  288. 

Laws  before  code,  repealed  except  as  to  existing  corporations,  §  288. 

Legislature  may  repeal  or  amend  laws  relating  to,  §§  403,  404. 

Provisions  of  code,  to  what  corporations  apply,  §  403. 

Repeal  of  laws  relating  to,  effect  of  on  rights  against,  §§  403,  404. 

Eepeal  of  laws  relating  to,  power  of  reserved,  §§  403,  404. 

III.     Formation  and  organization;  name  of. 

Certificate,  secretary  of  state  when  to  issue,  §  296. 

Corporators,  majority  must  be  residents,  §  285. 

Formation    complete,  when,  §  296. 

Formation,   majority  of  persons  forming  to  be  residents,  §  285. 

Formed  how,  §  285. 

For  what  purposes  may  be  formed,  §  286. 

Misnomer  does  not  invalidate  instrument,  §  357. 

Name,  amending  articles  by  setting  forth  new.  §  362. 

Name,  change  of,  after  filing  certificate,  affidavit,  §  1163. 

Name,  change  of,  copy  of  decree  to  be  filed  in  county  where  articles 

filed, §  300a. 
Name,  change  of,  copv  of  decree  to  be  filed  with  secretary  of  state, 

§  300a. 
Name  of  instrument  creating,  §  289. 
Name,  misnomer  does  not  invalidate  instrument,  §  357. 
Name,  prohibitions  in  regard  to,  §  296. 
Name,  recording  certificate  of,  §  1163. 
Organization  to  be  within  one  year,  §  358. 
Three  or  more  persons  may  form,  §  285. 
''Trust"  or  "trustee."  when  onlv  can  use  as  part  of  corporate  name, 

§  290yo. 

IV.     Articles  of  incorporation. 
Acknowledgment   of,  §  2*92. 
Amendment,  certificate  of,  to  state  proceedings,  §  362. 


INDEX.  1053 

CORPORATIONS.     IV.  Articles  of  incorporation.     (Continued.) 
Amendment,  certified  copy  of,  seal  to  be  affixed  to,  §  362. 
Amendment,  eoi^y  of  to   be   certified   as   correct  by   president,   secre- 
tary and  majority  of  directors,  §  362. 
Amendment,  filing  of,  penalty  for  failing  to  file,  §  362. 
Amendment,  name,  setting  forth  new,  §  362. 

Amendment,  principal  place  of  business  cannot  be  changed  by,  §  362. 
Amendment,  purjioses  for  which  articles  may  be  amended,  §  362. 
Amendment,  rights  and  liabilities  on,  §  362. 
Amendment,  statements  in  original  articles  of  names  and  residences 

of  first  directors  cannot  be  changed  by,  §  362. 
Amendment,  statements  of  amount  of  stock  subscribed  and  by  whom 

cannot  be  changed  by,  §  362. 
Amendment,  term   of  existence   cannot  be   extended   or   reduced  by, 

§  362. 
Certificate     that  articles   are   filed,   certified   copies   by   secretary   of 

state  have  same  effect  as  original,  §  296. 
Certificate  that  articles  are  filed,  secretary  of  state  to  file  duplicates 

in  his  office,  §  296. 
Certified  copy  of,  prima  facie  evidence,  §  297. 
Copies,  failure  to  file,  effect  of,  §  299. 

Copies  filed  have  same  ett'ect  in  evidence  as  originals,  §  299. 
Copies  to  be  filed  in  counties  where  property'  held,  §  299. 
Copy,  effect  of  where  original  burnt  or  destroyed,  §  297a. 
Copy,  filing  of  where  original  burnt  or  destroj'ed,  §  297a. 
Copy  to  be  filed  in  countv  where  property  purchased  or  held,  §  299. 
Defined,  §  289. 

Filed,  time  wdthin  which  to  be,  §  299. 
Filing,  amount  required  to  be  paid  in,  §  293. 
Filing,  damages  for  failure  to  file  copy  of  in  county  where  property 

held,  §  299. 
Filing  in  wrong  county,  effect  of,  §  363. 
Filing  in  wrong  county,  proceedings  for  withdrawal  and  refiling  in 

proper  county,  §  363. 
Filing,  prerequisites  to,  §§  293,  294. 

Filing,  to  be  filed  with  county  clerk  and  secretary  of  state,  §  296. 
Foreign  corporation.     See  post,  XVIII. 
Instrument  creating  called,  §  289. 

Not  to  issue  until  affidavit  of  subscription  filed,  §  295. 
Number  of  subscribers,  §  292. 
Particular  corporations.     See  particular  title. 
Qualifications  of  signers,  §  292. 

Signatures  and  acknowledgments  of  directors,  §  292. 
Subscribers,  majority  must  be  residents,  §  292. 
Subscription  and  acknowledgment,  §  292. 
Stock  subscribed,  articles  to  set  forth  amount  of,  §  290. 
Subscription,  amount  of,  as  prerequisite  to  filing  articles,  §  293. 
Subscription  and  acknowledgment  of,  §  292. 
Time  of  filing,  §  299. 
To  contain  what,  §§  290,  291. 
What  are,  §  289. 

V.     Term  of  existence;  extension  of. 

Amendment  of  articles,  existence  cannot  be  extended  or  reduced  by, 

§  362. 
Extension  of  existence,  certificate  of,  fees  for  filing  and  certifying, 

§401. 
Extension   of   existence,   certificate   of,   filed   with   county   clerk    and 

secretary  of  state,  §  401. 


1054  INDEX. 

CORPORATIONS.     V.  Term  of  existence;  extension  of.     (Continued.). 

Extension   of  existence,  franchise  granted  by  city,  county,  or  legis- 
lature not  extended,  §  401. 
Extension  of  existence,  how  effected,  §  401. 
Extension  of  existence,  limited  to  fifty  years,  §  401. 
Extension  of  existence,  signing  and  filing  certificate  of,  §  401. 
May  continue  any  length  of  time  law  prescribes,  §  283. 
Eight  of  corporation  to  extend  existence,  §  401. 
Term  of  existence,  §§  290,  296. 

VI.     By-laws. 
Amended  how,  304. 

Book  of,  to  be  open  to  inspection,  §  304. 
Certifying  of,  §  304. 
Copying  into  book  of,  §  304. 

Delegating  power  relating  to,  to  directors,  §  304. 
How  adopted  and  by  whom,  §  301. 
May  provide  for  what,  §  303. 
Xew,  adopting  of,  §  304. 

Particular  corporation,  of.     See  particular  title. 
Penalty  for  violating,  §  303. 
Proceedings  for  adoption  of,  §  301. 

Quorum  of  stockholders,  bydaws  may  provide  for,  §§  303,  312. 
Eecording,  §  304. 
Eeeorded  how,  §  304. 
Eepealed  how,  §  304. 
Time  for  adojition  of,  §  301. 
To  be  certified,  §  304. 
To  be  certified  and  copied  in  book  of  records  before  effective,  §  304. 

VII.     Directors. 

Amount  of  stock  to  be  held  by,  §  305. 

Contracts  to  relieve  from  liability,  void,  §  327. 

Control  of  corporation  where  no  capital  stock,  §  305. 

Corporate  powers  and  business  exercised  by,  §  305. 

Duties  of,  §  305. 

Election,  notice  of,  and  waiver  of,  §§  302,  303. 

Election  of  new  board,  §  310. 

Election  of  new,  on  removal  of  old,  §  310. 

Election,  time  of  where  no  provision  in  bydaws,  §  302. 

Election  to  be  held  annually,  §  302. 

From  whom  chosen,  §  305. 

Increase  and  decrease  in  number  of,  §  290. 

Increase  or  decrease  in  number  of,  majority  of  stockholders  may  vote 
for,  §361. 

Increase  or  decrease  in  number  of,  procedure  in  obtaining,  §  361. 

Inhibitions  on,  §  309. 

Liability  for  creating  excessive  indebtedness,  §  309. 

Liability  for  increasing,  reducing,  withdrawing,  or  paying  out  cap- 
ital stock, §  309. 

Limitation  of  liability  for  reducing,  increasing,  withdrawing,  or  pay- 
ing out  capital  stock,  §  309. 

Majority  a  quorum,  §  308. 

Majority  must  be  residents  of  state,  §  305. 

Majority  of  quorum  control,  §  308. 

May  be  removed  by  two-thirds  vote,  §  310. 

Meetings  called  for  removal  of,  §  310. 

Meetings,  any  meeting  legal  if  all  present  and  sign  consent,  §  320a. 

Meetings,  any  meeting  legal  if  majority  present  and  remainder  sign 
written  waiver  of  notice,  §  320a. 


INDEX.  1055 

CORPORATIONS.     VII.  Directors.      (Contiuued.) 

Meetings,  entry  into  and  absence  from,  when  noted,  §  377. 

Meetings  for  removal  of,  how  called  and  notice  of,  §  310. 

Meetings,  regular,    how    called    where    no    provision    for    in   by-laws, 

§320. 
Meetings,  regular,  notice  of,  §  320. 
Meetings,  special,   how    called    where   no    provision    for    in    by-laws, 

§320. 
Meetings,  special,  notice  of,  §  320. 
Meetings,  waiver  of  notice  to  be  presented  and  made  part  of  records, 

§  320a. 
Meetings,  where  to  be  held,  §  319. 
Members,  must  be,  where  no  capital  stock,  §  305. 
Must  perform  what  duties,  §  308. 
Not  to  be  less  than  three,  §  290. 
Number  of,  §§  290,  305. 

Number  and  term  of,  in  social  corporations,  §  305. 
Number  of  in  corporations  not  organized  for  profit,  §  593. 
Organization  of  board  of,  §  308. 
Personal  liability,  §  309. 

Personal  liability,  limitation  of  actions  on,  §  309. 
Personal  liability,  contract  to  relieve  from  void,  §  327. 
Profit,  corporations  other  than  for,  number  of  directors,  §  290. 
Profit,  corporations  other  than  for,  term  of  office  of  directors,  §  290. 
Qualifications  of,  §  305. 

Quorum  necessary  to  transact  business,  §  305. 
Removal  from  office,  proceedings  for,  §  310. 
To  be  stockholders  or  members,  §  305. 
Trustees,  contract  to  relieve  from  liability  void,  §  327. 
Vacancy,  filled  how,  §  305. 
Who  may  be,  §  305. 

VIII.     Officers  other  than  directors;   employees;   financial  statement  of 

affairs. 
Appointment  and  election  at  meeting  held  by  consent,  §  318. 
Certificates  by  secretary  as  evidence,  §  348. 
False  certificates,  reports,  or  notices,  officers  liable  for,  §  316. 
Financial  statement  of  affairs,  what  to  show,  §  302a. 
Financial  statement  of  affairs,  time  to  serve  on  stockholders,  §  302a. 
Financial  statement  of  affairs,  ten  per  cent  of  stockholders  may  de- 
mand, §  302a. 
Financial  statement    of    affairs,    service    on    stockholders,    time    for, 

§  302a. 
Financial  statement  of  affairs,  service  on  stockholders,  necessity  of, 

and  manner  of,  §  302a. 
Financial  statement  of  affairs,  request  for  by  stockholders,  time  to 

file,  §  302a. 
Financial  statement  of  affairs,  president  and  secretary   to  sign  and 

swear  to,  §  302a. 
Financial  statement  of  affairs,  misdemeanor  to  sign  false  statement, 

§  302a. 
Frauds   and   misrepresentations   by   officers,   penalty   for.     Appendix, 

tit.  "Corporations." 
Liability  for  refusal  to  enter  transfer  or  issue  certificate,  §  324. 
Organization  of  board,  and  election  of  officers,  §  308. 
President,  election  of,  §  308. 
President  must  be  a  director,  §  308. 
Secretary,  election  of,  §  308. 
Treasurer,  election  of,  §  308. 


1056  INDEX. 

CORPORATIONS.     VIII.  Officers  other  than  directors;  employees;  finan- 
cial statement  of  affairs.     (Continued.) 
Vacancies  may  be  filled  at  meetings  called  by  consent,  §  318. 
X  Wages,    assignment    by    employee,    act    relating    to.     Appendix,    tit. 

"Corporations." 
Wages,  manner  of  payment  of.     Appendix,  tit.  "Corporations." 
Wages  of  laborers  and  mechanics,  act  providing  for.     Appendix,  tit. 

"Corporations." 

IX.     Elections. 
Adjournment  of,  §§  312,  314. 
Ballot,  all  elections  must  be  by,  §  307. 
By-laws  may  prescribe  rules,  §  303. 

Common  and  preferred  stock,  no  distinction  as  to  voting  power,  §  290. 
Complaints  respecting  and  proceedings  thereon,  §  315. 
Conduct  of,  §  307. 
Corporations  not  for  profit,  §  312. 
Cumulative  voting,  §  307. 

Cumulative  voting,  election  void  if  right  of,  denied,  §  307. 
Cumulative  voting,  provisions  apply  to  corporations  formed  outside 

of  state,  §  307. 
Cumulative  voting,  statute  applies  to  what  corporations,  §  307. 
Cumulative  voting,  where  no  capital  stock,  §  307. 
Directors,  election  of.     See  ante,  VII. 
Eligibility  of  voters,  §  312. 

Failure  to  hold  or  to  adjourn  meeting,  new  meeting  how  called,  §  31-1. 
Irregular,  effect  of,  §  312. 
Lunatic's  stock  represented  how,  §  313. 
Majority  of  stock,  what  constitutes  where  stock  held  by  corporation, 

§344. 
Majority  of  subscribed  capital  stock  or  members  to  be  represented, 

§312. 
Minor's  stock  represented  how,  §  313. 
New  directors,  election  of  on  removal  of  old,  §  310. 
New  election,  when  and  how  ordered,  §  315. 
Not  held  at  appointed  time,  calling  another,  §§  312,  314. 
Notice  of,  §  302. 

Notice  of  election  of  directors,  waiver  of,  §§  302,  303. 
Officers,  election  of.     See  ante,  IX. 
Postponement  of,  §  314. 
Proxies,  for  what  time  valid,  §  321b. 
Proxies,  how  executed,  §  321b. 
Proxies,  revocable,  §  321b. 
Proxies,  time  for  which  valid,  by-law  in  corporation   without  stock 

may  prescribe,  §  321b. 
Proxies,   who    may    act,    by-laws    of    corporation    without    stock    may 

prescribe,  §  321b. 
Proxy  by  married  woman,  §  325. 
Setting  aside,  right  of  and  procedure,  §  312. 
Stock  of  decedent  represented  by  executor,  §  313. 
Time  for,  where  no  provision  in  bj'-laws,  §  302. 
Voidable  when,  and  how  set  aside,  §  312. 
Voters,  qualifications  of,  §  312. 
Voting,  manner  of,  §  307. 

Voting,  manner  of  where  no  capital  stock,  §  307. 
Voting  may  be  by  proxy  or  in  person,  §  307. 
Who  may  vote,  §  312. 

X,     Meetings. 
Adjournment  of,  §§  312,  314. 
Application  to  justice  of  peace  to  call,  §  311. 


INDEX.  1057 

CORPOEATIONS.     X.  Meetings.     ( Continued. ) 

Ayes  and  noes  to  be  taken  and  entered  on  request,  §  377. 

By  consent  is  valid,  §  317. 

By  consent,  what  proceedings  may  be  transacted,  §§  317,  318. 

By-laws  may  provide  for,  §  303. 

Control  of,  where  no  capital  stock,  §  305. 

Directors,  meetings  for  removal  of,  §  310. 

Directors,  meetings  of.     See  ante,  VII. 

Entry  into  and  absence  from  meetings,  when  noted,  §  377. 

Failure  to  hold  election  or  adjourn  meeting  for,  new  meeting  called 

how,  §  314. 
Justice  of  peace  may  direct  calling,  when,  §  311. 
Majority  of  stock,  what  is  where  stock  held  by  corporation,  §  344. 
Notice  of,  in  what  newspaper  to  be  published,  §  303. 
Notice  of,  proceedings  on  refusal  of  secretary  to  give,  §  310. 
Notice  of,  to  create  or  increase  bonded  indebtedness,  §  359. 
Notice  of,  to  increase  or  diminish  capital  stock,  §  359. 
Notice  of,  to  remove  directors,  §  310. 
Notice  of,  where  no  secretary,  §  310. 
Protests  of  members  to  be  entered  on  request,  §  377. 
Who  may  vote  at,  §  321b. 
Meetings,  proxies,  executors,  administrators,  guardians  and  trustees 

may  give,  §  321b. 
Proxies,  how  executed,  §  321b. 
Proxies,  lengfh  of  time  for  which  valid,  §  321b. 
Proxies,  revocation  of,  §  321b. 

Meetings,  proxies,  who  may  act  as  where  no  capital  stock,  §  321b. 
Quorum  in  corporations  formed  other  than  for  profit,  §  312. 
Quorum  necessary,  §  305. 
Removal  of  directors,  for,  how  called,  §  310. 
Where  to  be  held,  §  319. 
Where  all  members  present  and  consent,  §  317. 

XI.  Records,  books  and  journals;  lost  or  burnt  records,  bonds,  stock,  etc. 

Book  of  directors  and  stockholders,  keeping  for  inspection,  §  321. 

Book,  stock  and  transfer,  how  kept,  §  378. 

Burnt  articles  of  incorporation,  certified  copies  have  same  effect  as 
original,  §  297a. 

Burnt  articles  of  incorporation,  certified  copy  of,  may  be  filed,  §  297a. 

Burnt  bonds,  action  lies  to  obtain  duplicates,  §  329. 

Burnt  bonds,  action  to  duplicate,  judgment,  §  329. 

Burnt  bonds,  action  to  duplicate,  judgment  and  costs,  §  329. 

Burnt  bonds,  action  to  duplicate,  notice,  contents  of,  and  publication 
of,  §  329. 

Burnt  bonds,  action  to  duplicate,  parties,  §  329. 

Burnt  bonds,  action  to  duplicate,  proceedings  where  no  one  appears, 
§  329. 

Burnt  bonds,  action  to  duplicate,  proceedings  where  parties  appear, 
§  329. 

Burnt  bonds,  action  to  duplicate,  summons,  issuance  and  service  of, 
§329. 

Burnt  bonds,  procedure  to  obtain  duplicates,  §  329. 

Burnt  bonds,  reissuance  of,  indemnity,  §  329. 

Burnt  bonds,  reissuance  of,  when  ordered,  §  329. 

Burnt  records,  stocks,  or  bonds,  restoration,  hearing,  §  365. 

Burnt  records,  stocks,  or  bonds,  restoration,  judgment  in,  §  365. 

Burnt  records,  stocks,  or  bonds,  restoration,  jurisdiction  of  court  at- 
taches when,  §  365. 
Civ.  Code — 67 


1058  INDEX. 

CORPORATIONS.  XI.  Records,  books  and  journals;  lost  or  burnt  rec- 
ords, bonds,  stock,  etc.      (Continued.) 

Burnt  records,  stocks,  or  bonds,  restoration,  new  records,  stocks,  etc., 
issuing,  §  365. 

Burnt  records,  stocks,  or  bonds,  restoration,  notice,  service  and  pub- 
lication of,  §  365. 

Burnt  records,  stocks,  or  bonds,  restoration,  petition,  §  365. 

Burnt  records,  stocks,  or  bonds,  restoration  of,  proceeding  on,  §  365. 

Burnt  records,  stocks,  or  bonds,  restoration,  unknown  owners,  §  365. 

Burnt  records,  stocks,  or  bonds,  who  may  petition  to  restore,  §  365. 

False  entries  in,  liability  for,  §  316. 

Journal  of  proceedings,  what  and  how  kept,  §  377.. 

Lost  certificate,  issuance  of  new,  no  liability  of  corporation  after. 
§328. 

Lost,  destroyed,  or  withheld  certificate,  action  for  new,  proceedings 
on,  §  328. 

Lost,  destroyed,  or  withheld  certificate,  action  for  new,  protection 
of  company,  §  328. 

Eecord  of  ayes  and  noes  and  protests  to  be  entered  on  request,  §  377. 

Eecords  of,  when  and  how  kept,  §  377. 

Records,  stock  and  transfer  book,  how  kept,  §  378. 

Eecords  to  be  open  for  inspection,  §§  377,  378. 

XII.     Powers;     contracts;    actions;    changing    residence;    bonded    debt; 
transferring  business,  property  or  franchises. 
Acknowledgment,  affiant  to  be  known  to  officer,  §  1185. 
Acknowledgment  by,  prerequisites  to  taking,  §  1185. 
Acknowledgment,  form  of,  §  1190. 

Acknowledgment  of  instrument  by,  who  may  make,  §  1161. 
Bank  act  applies  to  what  corporations.     Appendix,  tit.  "Banking,"  §  1. 
Bequests  to,  restrictions  on   power  to  make,  §  1313. 
Bonded  indebtedness,  consolidated,  creating  hj  several  corporations, 

§359. 
Bonded  indebtedness,  consolidated,  limit  on  amount  of,  §  359. 
Bonded  indebtedness,   creating    or    increasing   by    two    or    more    cor- 
porations, §  359. 
Bonded  indebtedness,  proceedings  to  create  or  increase,  §  359. 
Bonds,  corporations     for     giving,    act     relating     to.     Appendix,    tit. 

"Bonds." 
Bonds,  destruction  by  fire,  restoration  of.     See  ante,  XI. 
Bonds  only  to  issue  for  monev  paid,  labor  done  or  property  received, 

§  359.^ 
Bonds,  restrictions  upon  issue  of,  §  359. 
Business  or  property,  transfer  of  as  a  whole,  consent  of  stockholders, 

how  expressed,  §  361a. 
Business  or  property,  transfer  of  as  a  whole,  consent  of  two  thirds 

of  stockholders,  §  361a. 
Certificate  of  place  where  summons  maj'  be  served,  §  1163. 
Certificate  of  place  where  summons  may  be  served,  affidavit  on  change 

of  residence,  §  1163. 
Change    of    priiieipal    place    of    business,    corporation    has    right    of, 

§321a. 
Change  of  principal  place  of  business,  filing  of  resolution  authorizing, 

with  affidavit  of  publication  of  notice,  §  321a. 
Change  of  principal  place  of  business,  proceedings  on,  §  321a. 
Concessions,  grants,  or  franchises  in  foreign   country,  sale   of,  §  364. 
Consolidated  bonded  indebtedness  by   several   corporations,   creation 

of,  §  359. 
Consolidated  bonded  indebtedness  by  several  corporations,  limitation 

upon,  §  359. 


INDEX. 


1059 


CORPORATIONS.  XII.  Powers;  contracts;  actions;  changing  residence; 
bonded  debt;  transferring  business,  property  or  franchises.  (Con- 
tiuued.) 

Consolidation  of  debts  by  corporations  other  than  for  profit,  §  605. 

Control  over  and  powers  of,  in  whom  vested,  §  305. 

Debts  bevond  subscribed  capital  stock,  directors  must  not  create, 
§  309! 

Debts,  liability  of  director  creating  excessive,  §  309. 

Debts,  limitation  on  power  to  create,  §  309. 

Executor,  receiver,  trustee,  etc.,  act  authorizing  corporation  to  act 
as.     Appendix,  tit.  "Corporations." 

Foreign  country,  sale  of  property,  franchises,  or  concessions  in,  §  364. 

Form  of  acknowledgment  by,  §  1190. 

Franchise,  may  be  sold  on  execution  against,  §  388. 

Franchise,  sale  of  under  execution,  duties  and  liabilities,  §  391. 

Franchise,  sale  under  execution,  where  made,  §  393. 

Franchise,  sold  under  execution,  redemption,  §  392. 

Franchise,  transfer  of,  consent  of  stockholders  holding  two  thirds  of 
issued  capital  stock  necessary,  §  361a. 

Franchise,  transfer  of,  consent  of  stockholders,  how  expressed,  §  361a. 

Lease  of  property  as  a  whole,  what  necessary,  §  361a. 

Letters  of  credit,  license  from  superintendent  of  banks  necessary 
before  issuing.     Appendix,  tit.  "Banking,"  §  13. 

Letters  of  credit,  license  to  issue,  fee  for.  Appendix,  tit.  "Bank- 
ing," §  13. 

Letters  of  credit,  right  to  issue.     Appendix,  tit.  "Ban-king,"  §  13. 

Mortgage  participation  certificates  and  securities  guaranteed  by  poli- 
cies of  mortgage  insurance  as  legal  investments  for  funds  of, 
§  453flf. 

Misnomer  of,  does  not  invalidate  instrument,  §  357. 

Powers,  bills,  notes,  etc.,  to  circulate  as  money,  not  to  issue,  §  356. 

Powers  of,  banking  prohibited,  §  356. 

Powers  of,  enumeration  of,  §  351. 

Powers  of,  exercised  by  board  of  directors,  §  305. 

Powers  of,  limitation  on,  §  355. 

Property,  sale,  lease,  or  transfer  of,  as  a  -whole,  what  necessary, 
§  361a. 

Real  property,  corporation,  what  may  acquire,  and  how  much,  §  360. 

Real  property,  how  acquired,  §  360. 

Realty  on  which  business  carried  on,  how  acquired,  §  363. 

Realtv  on  which  business  carried  on,  right  to  acquire  and  improve, 
§^360. 

Sale  of  franchises,  concessions,  or  property  in  foreign  country,  §  364. 

Seal  affixed,  how.  §  1628. 

Summons,  certificate  of  place  where  may  be  served  upon,  §  1163. 

Summons,  penalty  for  failure  to  designate  person,  upon  whom  may 
be  served,  §  406. 

Trusts,  corporation,  when  only  can  accept  or  execute,  §  2901/4. 

Will,  power  to  take  under,  §  1275. 

Will,  whether  may  take  under,  §  1275. 

XIII.     Stock  and  stockholders;  common  and  preferred  stock;  members; 
personal  liability. 
Capital  stock,  amount  to  be  paid  in  where  corporation  acts  as  execu- 
tor, guardian,  etc.,  §  290a. 
Capital  stock,  amount  to  be  paid  in  where  corporation  acts  as  execu- 
tor, guardian,  etc.,  affidavit  as  tg,  §  290a. 
Capital  stock,  articles  to  set  forth  amount  of,  §  290. 
Capital  stock,  articles  to  state  par  value  of,  §  290. 
Capital  stock,  cannot  be  diminished  by  amendment  of  articles,  §  362. 


1060  INDEX. 

CORPORATIONS.  XIII.  Stock  and  stockholders;  common  and  preferred 
stock;  members;  personal  liability.     (Continued.) 

Capital  stock,  division  of,  among  stoel^holders,  §  309. 

Capital  stock,  increasing  and  diminishing,  manner  of,  §  359. 

Capital  stock,  increasing  and  diminishing,  proceedings  for,  §  359. 

Capital  stock,  liability  of  directors  reducing,  withdrawing,  or  paying 
out,  §  309. 

Capital  stock,  limitation  of  action  against  directors  reducing,  with- 
drawing, increasing,  etc..  §  309. 

Capital  stock,  not  to  be  divided,  withdrawn,  or  paid  to  stockholders, 
§  309. 

Capital  stock,  not  to  be  increased  or  reduced,  §  309. 

Capital  stock  of  trust  companies.     See  Trust  Companies. 

Capital  stock,  reducing  or  increasing,  restrictions  on,  §  309. 

Capital  stock,  withdrawing,  restrictions  on,  §  309. 

Certificates,  false,  officers,  liable  for,  §  316. 

Certificates,  how  and  when  issued,  §  323. 

Certificates,  refusal  to  issue,  penalty  for,  §  324. 

Certificate  to  show  amount  paid  on,  where,  §  323. 

Common  and  preferred,  articles  of  incorporation  where  stock  classi- 
fied into, §  29U. 

Common  and  preferred,  certificates  o'f  stock,  what  to  state,  §  323. 

Common  and  preferred,  stock  may  be  classified  into,  §  290. 

Common  and  preferred  stock,  no  distinction  as  to  liabilitv  to  cred- 
itors, §§  290,  362. 

Common  and  preferred  stock,  no  distinction  as  to  voting  power, 
§§290,362. 

Common  and  preferred,  no  distinction  between  except  as  to  matters 
stated  in  articles,  §  362. 

Common  and  preferred  stock,  proceedings  where  stock  classified  into, 
§290. 

Common  and  preferred  stock,  to  be  of  same  par  value,  §§  290,  362. 

Destruction  of  stock  certificates  by  fire,  restoration  of.     See  ante,  XI. 

Entry  of  transfer  of  stock  on  books,  refusal  to  make,  liabilitj^,  §  324. 

Limitation  on  power  to  issue,  §  359. 

Investment  of  funds  of  insurance  corporations  in  stocks  of  corpora- 
tions, §  421,  subd.  6. 

Lost,  destroyed  or  withheld  certificates.     See  ante,  XL 

Married  woman,  dividends  payable  to,  §  325. 

Married  woman  may  give  proxy  or  power  as  if  sole,  §  325. 

Married  woman,  transfer  of  stock  by,  §  325. 

Members  are  who,  §  29S. 

Members,  control  where  there  is  no  capital  stock,  §  305. 

Members,  owners  are  called  members  if  no  capital  stock,  §  298. 

Members,  personal  liability  of,  where  no  capital  stock,  §  322. 

Non-resident,  transfer  of  stock  by,  giving  bonds,  §  326. 

Non-resident  transfer  of  stock  by,  how  effected,  §  326. 

Personal  property,  shares  of  stock  are,  §  324. 

Purchase  of  stock  by  corporation.     See  post,  XV. 

Stock  and  transfer  book,  how  kept,  §  378. 

Stock  and  transfer  book  to  be  kept.  §  378. 

Stock,  diminishing,  limitation  on,  §  359,  subd.  2. 

Stock,  diminishing,  proceedings  on,  §  359. 

Stock, increase   of,   proceedings  on,  §  359. 

Stock  in  name  of  married  woman,  dividends  to  whom  paid,  §  325. 

Stock,  in  name  of  married  woman,  proxy,  §  325. 

Stock  in  name  of  married  woman,  transfer,  §  325. 

Stock  in  name  of  pledgee  or  trustee,  how  represented,  §  313. 

Stock,  issuance  of  certificate  before  fully  paid  up,  §  323. 


INDEX.  1061 

CORPORATIONS.  XIII.  Stock  and  stockholders;  common  and  preferred 
stock;  members;  personal  liability,     (('on tinned.) 

Stock,  issuance  of  certificate  when  fully  paid  up,  §  323. 

Stock,  lost,  destroyed  or  withheld.     See  ante,  XI. 

Stock,  majority,  what  is,  where  stock  is  held  by  corporation,  §  344. 

Stock  of  minor,  insane  person  or  decedent,  how  represented,  §  313. 

Stock  only  to  issue  for  money  paid,  labor  done,  or  property  received, 
§359. 

Stock,  subscription  to,  affidavit  of,  §  295. 

Stockholders,  are  who,  §§  298,  322. 

Stockholders,  guardian  or  trustee's  liability  as,  §  322. 

Stockholders,  list  of.     Appendix,  tit.  "Banking,"  §  17. 

Stockholders,  married  woman  may  give  proxv  or  power  as  if  sale, 
§325. 

Stockholders'  personal  liability,  creditor  may  institute  joint  and  sev- 
eral actions,  §  322. 

Stockholders'  personal  lialnlitv  does  not  extend  to  what  persons, 
§322. 

Stockholders'  personal  liability  extends  to  what  persons,  §  322. 

Stockholders'  personal  liability,  foreign   corporation,  §  322. 

Stockholders'  personal  liabilitv,  funds  in  guardian's  hands,  liability 
of,  §  322. 

Stockholders'  personal  liability,  how  enforced,  §  322. 

Stockholders'  personal  liability,  in  general,  §  322. 

Stockholders'  personal  liability,  measure  of,  §  322. 

Stockholders'  personal  liability,  no  distinction  between  common  and 
preferred  stock,  §  290. 

Stockholders'  personal  liabilitv,  not  released  by  transfer  of  stock, 
§  322. 

Stockholders'  personal  liabilitv,  released  on  payment  of  his  propor- 
tion, §  322. 

Stockholders'  personal  liability,  released  when,  and  when   not,  §  322. 

Stockholders'  personal  liability,  several  judgments  against  stockhold- 
ers for  debts,  §  322. 

Stockholders'  personal  liability,  stock  held  as  collateral,  §  322. 

Stockholders'  personal  liability,    stock    held    by    representative,  §  322. 

Stockholders'  personal  liability,  trust  funds  liability  for,  §  322. 

Stockholders' personal  liability,  trust  funds,  liability  of  beneficiary, 
§322.  _   - 

Stockholders'  personal  liability,  when  stockholder  a  guardian  or  trus- 
tee, §  322. 

Stockholders,  who  are,  §  322. 

Transfer  of  shares  does  not  release  stockholder's  liability,  §  322. 

Transfer  of  shares,  manner  of,  §  324. 

Transfer  of  shares  of  married   woman,  §  325. 

Transfer  of  shares,  to  be  entered  on  books,  §  324. 

Transfer  on  books,  refusal  to  make,  liability,  §  324. 

XIV.  Dividends. 

Not  to  be  declared  on  stock  belonging  to  the  corporation,  §  343. 

Payable  to  married  women,  §  325. 

To  be  made  only  from  surplus  i)rofits,  §  309. 

XV.  Assessments. 

Action  to  recover  delinquent,  §  349. 

Delinquency,  time  of,  §  334. 

Directors  may  levy,  when  and  for  what,  §  331. 

Jurisdiction  to  sell  acquired  by  publication  of  notice,  §  340. 

Limitation  on  power  of,  §  332. 


1062  INDEX. 

CORPORATIONS.     XV.  Assessments.     (Continued.) 

Notice  of  delinquent,  contents  of.  §§  337,  338. 

Notice  of  delinquent,  form  of,  §§  337,  338. 

Notice  of  delinquent,  publication  of,  §§  337,  339. 

Notice  of,  form,  §§  335,  337. 

Notice  of,  publication  where  works  are  out  of  United  States,  §  336. 

Notice  of,  service  and  publication  of,  §  336. 

Not  to  be  invalidated  by  what  irregularities,  §  346. 

Not  to  be  levied  upon  stock  owned  by  the  corporation,  §  343. 

Not  to  be  levied  while  previous  one  unpaid,  except  in  what  case, 
§  333. 

Order  for,  to  contain  what,  §  334. 

Payment  before  sale  day,  what  to  be  paid  in  addition  to  assessment. 
§  341. 

Proceedings  for,  to  be  begun  anew,  when,  §  346. 

Publication  of  notice,  affidavits  are  prima  facie  evidence,  §  348. 

Publication  of  notice,  affidavits  to  be  filed,  §  34,8. 

Publication  of  notice,  newspaper  in  which  to  be  published,  §  336. 

Publication  of  notice,  proved,  how,  §  348. 

Sale,  action  to  recover  stock,  limitation  of,  §  347. 

Sale,  action  to  recover  stock,  tender  of  assessment,  interest  and  costs, 
§  347. 

Sale,  affidavit  of  secretary  or  auctioneer  to  prove,  §  348. 

Sale,  affidavits,  filing  of,  §  348. 

Sale,  affidavits  prima  facie  evidence,  §  348. 

Sale,  corporation  may  buy  in  default  of  bidders,  §  343. 

Sale,  corporation,  purchase  by,  title  to  stock  and  disposition  of,  §  344. 

Sale,  corporation  purchasing,  rights  and  liabilities  on,  §  343. 

Sale,  corporation,  stock  bought  bv,  no  assessments  or  dividends  on, 
§  343. 

Sale,  day  of,  to  be  stated,  §  334. 

Sale,  disposition  of  stock  bought  by  corporation,  §  344. 

Delinquent  stock  sale,  extension  of  time  of.  how  made,  §  345. 

Delinquent  stock  sale,  extension  of  time  of,  who  may  make,  §  345. 

Delinquent  stock  sale,  extension  of  time  for,  time  of  may  be  ex- 
tended, §  345. 

Sale,  highest  bidder  to  be  purchaser,  §  342. 

Sale,  jurisdiction  acquired,  how,  §  340. 

Sale,  no  more  stock  than  necessary  to  be  sold,  §  340. 

Sale,  time  of,  §  334. 

Sale,  to  be  bv  public  auction,  §  341. 

Sale  to  pay,'§§  340-349. 

Sale  to  pay,  transfer  of  stock  to  purchaser  when  sold  to  pay  assess- 
ment, §  342. 

Sale,  waiver  of,  and  suit  to  recover  assessment,  §  349. 

Validity  of,  §  346. 

Waiver  of  sale  and  recovery  of  assessment  by  suit,  §  349. 

XVI.     Sale  of  franchise  under  execution. 

Execution  against  corporation,  franchise  may  be  sold,  §  388. 
Execution  sale  of  franchise,   corporation,   powers   and    duties   after, 

§391. 
Execution  sale  of  franchise,  damages,  recovery  by  purchaser,  §  390. 
Execution  sale  of  franchise,  duties  and  liabilities,  §  391. 
Execution  sale  of  franchise,   purchaser   may   recover   penalties,   etc., 

§390. 
Execution  sale  of  franchise,  purchaser,  rights  of,  §  390. 
Execution  sale  of  franchise,    purchaser    to    be    let    into    possession, 

§389. 


INDEX.  1063 

CORPORATIONS.  XVI.  Sale  of  franchise  under  execution.  (Con- 
tinued.) 

Execution  sale  of  franchise,  purchaser  to  transact  business  of  cor- 
poration, §  389. 

Execution   sale  of  franchise,  redemption,  §  392. 

Execution  sale  of  franchise,  where  held,  §  393. 

Franchise,  redemption  of,  from  execution  sale,  §  392. 

Recovery  by  purchaser  as  a  bar,  §  390. 

XVII.     Dissolution;  non-user;  examining  into  aflfairs;  attack  upon. 

Attorney-general  cannot  inquire  into  after  ten  years,  §  358. 

Attorney-general  examining  into,  powers  of,  §  382. 

Attorney-general  may  examine  into,  when,  §  382. 

Collateral  attack,  not  open  to,  §  358. 

Collateral  attack  on,  §  358. 

Dissolution,  by  legislature,  and  its  effect,  §  404. 

Dissolution  by  legislature  does  not  affect  rights  and  remedies  against, 

§§403,  404. 
Dissolution,  directors   and  managers  are  trustees,  §.400. 
Dissolution,  directors  and  managers,  powers  of,  §  400. 
Dissolution,  directors  trustees  for  creditors  and  stockholders,  §  400. 
Dissolution,  involuntary,  code  provisions  governing,  §  399. 
Dissolution,  reservation  by  legislature  of  power  of,  §§  403,  404. 
Dissolution,  voluntary,  code  provisions  governing,  §  399. 
District  attorney  examining  into,  powers  of,  §  382. 
District  attorney  may  examine  into,  when,  §  382. 
Examination  into,  by  attorney-general  or  district  attorney,  §  382. 
Examination  into,    by    attorney-general    or    district    attorney,    how 

made,  §  382. 
Examination  into,  by  legislature,  §  383. 
Inquiry  into  cannot  be  made  after  ten  years,  §  358. 
Non-user,  dissolution  for,  §  358. 

Non-user,  proceedings  to  be  instituted  by  attorney-general,  §  358. 
Non-user,  resumption  of  business,  effect  of,  §  358. 

Non-user,  time  in  which  nuist  organize  and  commence  business,  §  358. 
Non-user,  who  may  question  right  of  corporation,  §  358. 
Quo  warranto,  §  358. 

XVIII.     Foreign. 

Actions,  cannot  maintain  or  defend,  when,  §  406. 

Articles,  certified  copies  of  to  be  filed,  §  408. 

Articles,  failure   to  file,   duty   of  secretary   of   state  and   district   at- 
torney, §  410. 

Articles,  failure  to  file,  penalty  for,  §  410. 

Articles,  failure  to  file,  proceedings  against,  §  410. 

Articles,  fees  for  filing,  §  409.     Appendix,  tit.  "Corporations." 

Building  and  loan  associations.     See  Building  and  Loan  Associations. 

Evidence  of  corporate  existence,  what  admissible,  §  406. 

Fees  required  of,  §  409.     Appendix,  tit.  "Corporations." 

Filing  of  articles  of  incorporation.     Appendix,  tit.  "Corporations." 

Foreign  building  and  loan  corporations.     See  Building  and  Loan  Cor- 
porations. 

Insurance   corporations   on   assessment   plan.     See   Mutual   Insurance 
on  Assessment  Plan. 

Provisions  as  to  cumulative  voting,  apply  to,  §  307. 

Railway  corporations,  rights,  powers,  and  liabilities,  §  407. 

Statute  of  limitations  operates  in  favor  of,  when  and  when  not,  §  406. 

Summons,  designation  of  person  on  whom  may  be  served,  §  405. 
Summons,  designation  of  jierson   nn  whom  may  be  served,  penalties 
for  failure  to  name,  §  406. 


1064  INDEX. 

CORPORATIONS.     XVIII.  Foreign.     (Continued.) 

Sjummons,  designation  of  person  on  wliom  may  be  served,  proceed- 
ings on  death  or  removal  of,  §  406. 

Summons,  designation  of  person  on  whom  may  be  served,  revocation 
and  new  designation,  §  466. 

Summons,  designation  of  person  on  whom  may  be  served,  rights  on 
compjliance  with  statute,  §  406. 

Summons  may  be  served  on  secretary  of  state,  when,  §  40.5. 

Stockholders'  personal  liability,  §  322. 

WJmt  exempt  from  provisions  of  Civil  Code,  §  410. 

CORPORATION  SOLE.     See  Religious,  Social  and  Benevolent  Corpora- 
tions. 
Religious  societies  may  become,  when,  §  602. 

CORPORATIONS  FOR  PREVENTION  OF  CRUELTY  TO  CHILDREN 

AND   ANIMALS.     See   Societies   for   Prevention   of   Cruelty   to 
Children  and  Animals. 

COSTS. 

Attorney's  fees  in  action  by  co-owner  of  flume  for  contribution,  §  843. 

Divorce,  of,  §  137. 

Homeless  minor,  no  fee  on  apprenticing,  §  268. 

Homestead,  of  appraisement,  §  1259. 

Homestead,  of  proceedings  to  subject  to  creditors'  demands,  §  1259. 

Indemnity  against,  §  2778. 

Indemnity  includes  costs  of  defense,  §  2778. 

Jury  trial  on  apprenticeship  of  minor,  §  267. 

Negotiable  instrument  may  provide  for,  §  3088. 

COTENANCY.     See  Tenancy  in  Common. 
Between  devisees,  §  1350. 
Between  husband  and  wife,  §  161. 

Insurance  not  avoided  by  transfer  between  cotenants,  §  2557. 
Interest  in  common,  defined,  §  683. 
Interests  in  common,  §  682. 
What  interests  are  in  common,  §  686. 

COTERMINOUS  OWNER. 

Fences  and  monuments,  duty  to  maintain,  §  841. 
Mutual  obligations  of,  §  841. 

Rights  to  lateral  support,  §  832.     See  Lateral  Support. 
Rights  to  line  trees,  §  834. 

COUNTY. 

Articles  of  incorporation,  filing  in  wrong  county,  effect  of.  and  pro- 
ceedings on, §  363. 

County  fire  insurance  companies.     Appendix,  tit.  "Insurance." 

Franchise  granted  bv,  not  affected  bv  extension  of  corporate  exist- 
ence, §  401. 

Marriage  settlement  to  be  recorded  in  what,  §  179. 

Mortgage  of  personal  property  to  be  recorded  in  what,  §  2959. 

Mortgaged  property  in  transit  deemed  located  in  what,  §  2960. 

Property  of  common  carrier  deemed  to  be  in  what,  §  2961. 

Word  "county"   includes   "city  and   county,"  §  14. 

COUNTY  CLERK.     See  Clerk. 

COUNTY  RECORDER.     See  Recording. 
Acknowledgment,  may  take,  §  1181. 


INDEX.  1065 

COURT. 

Clerk  of,  may  take  acknowledgments,  §  llSl. 
Proceedings  of,  not  enjoined,  when,  §  3423. 

COURT  COMMISSIONER. 

Acknowledgment,  may  take,  §  1181. 

COVENANTS. 

Agent's  authority  to  give,  §  2324. 

Agreement  to  give  usual,  includes  what  covenants,  §§  1733,   1734. 

Apportionment  of,  §  1467. 

Covenant  with  owner  of  another  tract  runs  with  both   tracts  when, 

§  1468. 
Damages  for  breach  of,  §§  3304,  3305. 
Damages  for  partial  breach  of,  §  3304. 
Form  of,  §  1734. 

"Grant,"  what  covenants  implied  from  use  of,  §  1113. 
Implied  in  transfer  of  land,  §  1113. 
Implied,  right  to  sue  on,  §  1113. 
May  inure  to  stranger,  §  1085. 
Quiet  possession,  for,  in  hiring,  §§  1927,  1955. 
Eunning  with  land,  §§  1460-1468. 
Eunning  with  land,    covenants    for    direct    benefit    of    property    run, 

§  1462. 
Eunning  with  land,  defined,  §  1460. 

Eunning  with  land,  only  those  specified  in  code  run,  §  1461. 
Eunning  with  land,  what  are  generally,  §  1460. 
Eunning  with  land,  what  covenants  run,  §§  1462,  1463,  1468. 
Eunning  with  land,  what  run  when  assigns  are  named,  §  1464. 
Eunning  wuth  land,  who  bound  by,  and  who  not,  §§  1465,  1466. 
Eunning  with  land,  who  not  liable  for  breach,  §  1466. 

CREDIT. 

Agent  accepting,  liable  as  principal,  §  2343. 
.  Agent,  to,   exonerates   principal,  §  2335. 
Auctioneer  not  to  give,  except  in  what  eases,  §  2362. 
Creditor.     See  Creditor. 

Factor  may  give,  except  in  what  cases,  §  2368. 
Factor,  right  to  sell  on,  §§  2028,  2362. 
Letters  of.     See  Letter  of  Credit. 
Ship-owner's,  master  may  borrow  on,  §  2374. 
Ship's  manager  cannot  borrow,  §  2389. 

CREDITORS.     See  Assignment  for  Creditors;  Credit;  Debtor. 
Acceptance  by,  necessary  to  satisfaction,  §  1473. 
Acceptance  of  accord, §  1523. 
Acceptance  of  part  performance,  §  1524. 
Application  of  performance  by,  §  1479.     See  Obligations. 
Appraisement  of  homestead  on  petition  of  judgment  creditor,  §  1245. 
Assignments  for  benefit  of  creditors.     See  Assignments  for  Creditors. 
Avoid  act  of  debtor,  when,  only  can,  §  3441. 
Contracts  of  debtor  valid  against,  when,  §  3431. 
Current  money,  borrower  to  pay  in,  §  1913. 
Debtor  may  prefer,  when,  §  3432. 
Definition  of,  §  3430. 

Effect  of  prevention  of  performance  by,  §  1512. 
Effect  of  refusal  to  accept  performance,  §  1515. 
Fraudulent  conveyances.     See  Fraudulent  Conveyance. 
Gift  causa  mortis,  treated    a^  legacy   so   far  as   relates   to   creditors, 
§  1153. 


1066  INDEX. 

CREDITORS.      (Continued.) 

Guarantor,  liable  to,  when,  §  2807. 

Guarantor  not  exonerated   by    discharge   of   debtor    without    act   of, 

§  2825. 
Guarantor  not  exonerated  by  mere  delay  of,  §  2823. 
Guarantor  not  exonerated  by  voidable  promise  of,  §  2820. 
Guarantor,  when  exonerated  by  acts  of,  §  2819. 
Guarantor,  when  partially  exonerated,  §  2822. 
Guarantor  with  indemnity,  when  not  exonerated,  §  2S24. 
Homestead,  when  to  pay  expenses  of  appraisement  of,  §  1259. 
Lien  void  against,  when,  §  2913. 
Marshaling  of  assets,  §  3433. 

Mortgage  of  personal  property,  when  void  against,  §  2957. 
Mortgagor,  of  personal  property,  may  levy  on  property,  §  2968. 
Novation,  how  made,  §  1531. 
Novation,  may  rescind,  when,  §  1533. 
Novation.     See  Novation. 
Objections  to  offer  of  performance,  §  1501. 

Obligation  of,  as  to  thing  offered  which  he  refuses  to  accept,  §  1505. 
Offer  of  performance  at  place  appointed  by,  §  1489. 
Offer  of  performance  must  be  in  such  manner  as  to  benefit,  §  1493. 
Offer  of  performance  must  be  made   to.  §  1488. 
Order  of  resort  to  different  funds,  §  2899. 
Partner  cannot  make  assignment  for,  §  2430. 
Partner,  liability  of,  after  dissolution,  to,  §  2453. 
Partner,  special,  may  be  creditor,  §  2491. 
Partner,  special,  postponed  to  other  creditors,  §  2491. 
Performance  excused,  if  prevented  by,  §  1511. 
Performance  in  manner  directed  by,  §  1476. 
Performance,  prevention  of,  by,  effect  of,  §§  1511,  1512. 
Performance  to  one  of  several  joint  creditors,  §§  1475,  1488. 
Preferences,  debtor  may  give,  §  3432. 
Preference  to,  in  insolvencv,  void, §  2496. 
Receipt  by,  §  1499. 
Relative  rights  of  creditors,  §  3433. 
Release  by,  relinquishes  obligation,  §  1541. 
Release  by,  effect  of  general,  §  1542. 

Special  partner,  when  liable  as  general  partner,  to,  §  2502. 
Surety  entitled  to  securities  held  by,  §  2849. 
Surety  exonerated  by  refusal  to  sue,  §  2845. 
Surety  exonerated  bv  what  act  or  omission  of,  §  2840. 
Surety,  how  far  liable,  §  2838. 
Surety  may  enforce  remedies  of,  when,  §  2845. 
Surety's  securities,  entitled  to  benefit  of,  §  2854. 
Title  of  thing  offered  passes  to,  when.  §  1502. 
Transfer  for  benefit  of,  to  be  recorded, §  1164. 
Transfer  of  debtor  void  against,  when,  §§  3439,  3440. 
Transfer  without  value,  validity   of,  as  against,  §§  3442,  3449,  3465. 

3469. 
Trust  fund,  how  far  liable  to,  §  859. 
Trust,    grant    on,    absolute    in    favor    of    subsequent    creditor,    when. 

§  869. 
Trusts  for  benefit  of,  §  857. 
Witness  to  will,  as,  §  1282. 

CRIMINAL  LAW. 

Warehouseman,  violation  of  law  by,  punishment,  §  lS58f. 

CROPS. 

Lien  of  mortgage  on,  continues  after  severance,  §  2972. 


INDEX.  1067 

CEOPS.      (Contiuued.) 
Mortgage  of,  §  2955. 
Tenant's  i-ight  to  harvest,  §  819. 

CROSS-COMPLAINT. 

Divorce,  iu.     See  Divorce. 

CROSSINGS.     See  Railroad  Corporations. 

Sounding  bell  or  steam  whistle  on  ajiproaehing,  §  486. 

CRUELTY.     See  Divorce. 

Animals.     See  Societies  for  Prevention  of  Cruelty  to   Children  and 

Animals. 
Apprenticeship  annulled  for,  §  276. 
Children,   to.     See   Societies  for   Prevention   of   Cruelty   to   Children 

and  Animals. 
Defined,  §  94. 
Divorce,  as  ground  for,  §§  92,  98,  146. 

CUMULATIVE. 

Voting,  §  307. 

CURATIVE  ACTS.     See  Registration. 

Act    curing    defective    execution    or    acknowledgment    of    instrument, 
§  1207.     Appendix,   tit.   "Acknowledgments." 

CURRENT  MONEY. 

Borrower  to  pay  in,  §  1913. 

CURTESY. 

Not  allowed,  §  173. 

CUSTODY. 

Children  of  annulled  marriage,  of,  §  85. 

Children,  of,  rules  for  awarding,  §  246. 

Children,  of.     See  Divorce;  Parent  and  Child. 

Thing  offered  in  performance  of  obligation,  of,  §  1503. 


D 

DAMAGES.     See  Specific  Relief. 

Accruing  after  action  brought,  right  to  recover,  §  3283. 

Acts  or  omissions,  unlawful,  recoverable  for,  §  3281. 

Admission  to  place  of  amusement,  for  refusal  of,  §  54. 

After  snit  brought,  §  3283. 

Agent's  authority,  breach  of  warranty,  damages  for,  §  3318. 

Animals,  exemplary,  for  injuries  to,  §  3340. 

Animals,  vicious,  injuries  by,  for,  §  3341. 

Bill  of  exchange,  foreign,  damages  for  dishonor  of,  §§  3234-3238. 

Breach  of  agreement  to  accept,    and    pay    for   personalty    sold,    for, 

§§3310,  3311. 
Breach  of  agreement  to  buy  personalty,  for,  §  3311. 
Breach  of  agreement  to  buy  realty,  §  3307. 
Breach  of  agreement  to  convey  realty,  for,  §  3306. 
Breach  of  agreement  to  sell  personalty,  for,  §  3308. 
Breach  of  contract,  general  rule,  §  3300. 
Breach  of  contract,  must  be  certain,  §  3301. 
Breach  of  contract  to  pay  liquidated  sum,  §  3302. 
Breach  of  contract  to  pay  money  only,  §  3302. 
Breach  of  covenant  against  encumbrances,  for,  §  3305, 
Breach  of  covenants  in  deed,  for,  §  3304, 


1Q68  INDEX. 

DAMAGES.      (Continued.) 

Breach  of  covenants,  partial,  damages  for,  §  3304. 

Breach  of  covenant  to  deliver  personalty,  §  3309. 

Breach   of  obligation,    cannot    exceed    what    one   wtuild    have    gained 
by  complete  performance,  §  335S. 

Breach  of  obligation  providing  for  opjiressive  or  unconscionable,  rea- 
sonable only  recoverable,  §  3359. 

Breach  of  obligations  to  be  reasonable,  §  3359. 

Breach  of  promise  of  marriage,  for,  §  3319. 

Breach  of  warranty  of  agent's  authority,  for,  §  3318. 

Breach  of  warranty  of  quality,  for,  §  3313. 

Breach  of  warranty  of  quality  for  special  purpose,  for,  §  3314. 

Breach  of  warranty  of  title  to  personalty  sold,  for,  §  3312. 

Carrier  of  messages,  refusal  to  receive,  or  delay  in  delivering,  §§  2209, 
3315. 

Carrier's  delay,  for,  §  3317. 

Carrier's  obligation  to  deliver,  for  breach  of,  §  3316. 

Carrier's  obligation  to  receive,  for  breach  of,  §  3315. 

Carrier's  refusal  to  receive   or  transport  passengers,  §  482. 

Certain,  must  be,  §  3301. 

Certificate  of  stock,  liabilitv  for  refusal  to  enter,  transfer,  or  issue, 
§  324. 

Chose  in  action,  presumption  as  to  value  of,  §  3356. 

Collision  of  vessel,  liability  for  and  apportionment  of,  §§  971,  973. 

Compensation.     See  Compensation. 

Compensation  defined.  §  3274. 
*  Contract  fixing  in  advance,  validity  of,  §§  1670,  1671. 

Conversion,  for,  §§  3336-3338. 

Covenants  in  deed,  breach  of,  damages  for,  §  3304. 

Deceit,  willful,  liabilitv  for,  §  1709. 

Detriment  defined,  §  3282. 

Detriment  from  unlawful  act  or  omission,  one  suffering,  entitled  to, 
.       §  3281. 

Dishonor  of  bill  of  exchange,  for,  §  3235. 

Dishonor  of  foreign  bill,  for,  §§  3234-3238,  3303. 

Dogs  killing  goats,  sheep,  or  poultrv,  liabilitv  of  owner,  §  3341. 

Duel,  injuries  inflicted  in,  §§  3347,  3348. 

Electric  light,  refusal  to  purchase,  §  629. 

Emploj'ing  materials  belonging  to  another,  for,  §  1033. 

Equal  rights,  denial  of,  damages,  §  52. 

Equal  right's,  denial  of,  punishment  of,  §  52. 

Excessive,   cannot   exceed   what  would  be  gained   by   complete   per- 
formance, §  3358. 

Exemplary,  damages  prescribed  in  code  are  exclusive  of,  §  3357. 

Exemplary,  for  injury  to  animals,  §  3340. 

Exemplary,  in  case  of  malice,  fraud,  or  oppression,  §  3294. 

Exemplary,  infant's  liability  for,  §  41. 

Exemplary,  lunatic's  liability  for,  §  41. 

Exemplary,  when   recoverable,   in   general,  §  3294. 

Failure  to  quit  by  tenant  after  notice,  treble  rent,  §  3345. 

Finder  of  lost  property  failing  to  notify  owner,  §  1865. 

Fire,  for  negligently  setting,  §  3346a. 

Foreign  bill,  interest,  where  protested,  §  3236. 

Foreign  bill  of  exchange,  for  dishonor  of,  §§  3234-3238. 

Forfeiture,  relief  in  cases  of,  §  3275. 

Fraud,  oppression,  or  malice,  interest  as  damages,  §  3288. 

Future  injuries,  for,  §  3283. 

Gas,  refusal  to  furnish,  §  629. 

Guardian's  holding  over,  for,  §  335, 


INDEX.  1069 

DAMAGES.      (Continued.) 

Holding  over  by  tenant,  treble  rent,  §  3345. 

Holding  over,  for  willful,  §  3335. 

Infringements  upon  rights  of  another,  duty  to  refrain  from,  §  1708. 

Injuries  to  another,  duty  to  refrain  from  inflicting,  §  17US. 

InnkeeiJer,  for  failure  to    post  charges,  §  1863. 

Innkeeper  or  lodging-house  keeper,  for  overcharges,  §  1863. 

Interest  as,  §§  32S7-3290,  3802,  3304-3306,  3336. 

Interest,  damages  prescribed  in  code  are  exclusive  of,  §  3357. 

Interest   on,  §  3287. 

Killing  sheep  by  dogs,  for,  §  3341. 

Lienor's,  for  conversion,  §  3338. 

Limited  to  amount  one  would  gain  by  performance,  §  3358. 

Liquidated,  breach   of  contract  to  pay,  §  3302. 

Liquidated,  not  bar  to  specific  performance,  §  3389. 

Liquidated,  refusal  or  failure  to  furnish  gas  or  electricity,  §  629. 
•  Liquidated,  refusal   to    permit   agent   of   lighting   company   to    enter 
building,  §  631. 

Liquidated,  validity  of  contract,  §§  1670,  1671. 

Market  value,  §§  3353,  3354. 

Marriage,  breach  of  promise  of,  §  3319. 

Measure  of,  for  breach  of  contract,  §  3300. 

Measure  of,  for  breach  of  contract  to  pay  liquidated  sum,  §  3302. 

Measure  of,  in  various  cases,  §§  3300-3341. 

Messages,  refusal  or  postponement  of,  for,  §  2209. 

Mortgagee's   liability    for    refusal    to   give   certificate    of    discharge, 
§  2941. 

Must  be  certain,  §  3301. 

Nominal,  when  recoverable,  §  3360. 

Obligation,  breach  of,  cannot  exceed  what  would  have  been  gained 
by  complete  performance,  §  3358. 

Obligations  not  arising  out  of  contract,   damages  for,  §  3333. 

Oppressive  or  unconscionable,  obligation  providing,  reasonable  dam- 
ages only  recoverable,  §  3359. 

Penal,  §§  3344-3348. 

Penal,  injury  to  or  removal  of  trees  or  underwood,  §  3346. 

Penal,  for  firing  woods,  §  3346a. 

Penal,  for  injuries  inflicted  in  duel,  §§  3347,  3348. 

Penal,  tenant  wilfully  holding  over,  §  3345. 

Penal,  tenant  failing  to  quit  after  notice  of  intention  to  quit,  treble 
damages,  §  3344. 

Penal,  tenant  holding  over  after  notice  requiring  possession,  §  3345. 

Property  of  peculiar  nature,  value,  how  estimated,  §  3355. 

Railroad,  liability  for  refusing  to  provide  ticket,  §  490. 

Eailroad,  overcharge  by,  §  489. 

Keal  estate,  willful  holding  over  of,  §  3335. 

Real  estate,  wrongful  occupation  of,  §§  3333,  3334. 

Reasonable,  to  be,  §  3359. 

Reasonable,  to  be,  where  oppressive  and  unconscionable  damages  pro- 
vided, §  3359. 

Recoverable  for  unlawful  acts  or  omissions,  §  3381. 

Refusal  to  permit  agent  of  lighting  company  to  enter  building,  §  631. 

Relief,  in  general,  §  3274. 

Sales,  value  liow  estimated,  §§  3353,  3354,  3355. 

Seduction,  for,  §  3339. 

Sheep  killed  by  dogs,  for,  §  3341. 

Specific  relief.     See  Specific  Relief. 

Telegraph  company,  injury  to,  §  537. 

Telegraph  company,  damages  for  malicious  injury  to,  §  538. 


1070  INDEX. 

DAMAGES.      (Continued.) 

Telephone  company,  injury  to,  §  537. 

Telephone  company,  malicious  injury  to,  §  538. 

Tenant  liable  for  treble  rent,  when,  §§  3344,  3345. 

Tenant's  failure  to  quit  after  notice,  treble  rent,  §  3344. 

Thing  in  action,  presumption  as  to  value  of,  §  3356. 

Timber,  treble,  for  injury  to,  §  3346. 

Treble,  for  injury  to  timber  or  trees,  §  3346. 

Treble,  for  negligently  setting  tire,  §  3346a. 

Treble,  tenant  holding  over  after  notice  requiring  possession,  §  3345. 

Treble,  where  tenant  holds  over  after  giving  notice  of  intention  to 

quit,  §  3344. 
Trees,  treble,  for  injury  to,  §  3346. 
Trees,  treble,  for  negligently  setting  fire,  §  3346a. 
Trover,  for  conversion  of  personal  propertv,  §§  3336-3338. 
Trust,  damages  for  breach  of.  §§  2237,  2238". 
Trustee's  holding  over,  for,  §  3335. 
Unlawful  acts  or  omissions,  recoverable  for,  §  3281. 
Value,  how  estimated  in  favor  of  buyer,  §  3354. 
Value,  how  estimated  in  favor  of  seller,  §  3353. 
Value,  how  estimated  where  property  of  peculiar  value,  §  3355. 
Value  of  thing  in  action,  §  3356. 
Willful  holding  over  of  real  property,  for,  §  3335. 
Who  entitled  to,  in  general,  §  3281. 
Woods,  treble,  for  negligently  setting  fire  to,  §  3346a. 
Written  instrument,  presumption  as  to   value  of,  §  3356. 
Wrongfullv  using  materials  of  another,  wrongdoer  liable  in  damages, 

§  1033". 
Wrongful  occupation  of  realty  for,  §  3334. 
Wrongs,  for,  generally,  §  3333. 

DATE. 

Delivery  of  deed,  presumption  as  to,  §  1055. 
Negotiable  instrument,  not  necessary  in,  §  3091. 

DAYS. 

Business,  are  what,  §  9. 

Grace,  of,  not  allowed,  §  3181. 

Holidays,  are  what,  §§  7,  8. 

How  counted  in  computing  time,  §  10. 

DEATH. 

Agency,  effect  of  death  upon,  §§  2355.  2356. 

Beneficiary  receiving  advancements,  effect  on  heirs,  §  1399. 

Beneficiary  under  will,  rights  of  children,  §  1310. 

Chose  in  action,  survival  of.  §  954. 

Chose  in  action,  to  whom  descends  on,  §  954. 

Co-trustee,  of,  survivors  may  exercise  powers,  §  860. 

Devisee  or  legatee  of  a  limited  interest,  of,  effect  of,  §  1344. 

Devisee  or  legatee,  of  before  testator,  rights  of  descendants,  §§  1310, 

1343. 
Distribution  of  common  property  on,  of  husband,  §  1402. 
Distribution  of  common  property  on,  of  wife,  §  1401. 
Effect  of,  on  hiring,  §  1934. 

Employee,  of,  action  for,  §  1970.     See  Master  and  Servant. 
Employer  or  employee,  death  of,  effect  on  employment,  §§  1996-1998. 
Execution  of  power,  where  one  of  persons  in  whom  vested  dies,  §  860. 
Gift  in  view  of.     See  Gift. 
Heir  advanced  to,  of,  before  devisor,  §  1399. 


INDEX.  1071 

DEATH.     (Continued.) 

Hiring  tt?rminated  by,  when  and  where  not,  §  1934. 

Husband  or  wife,  of,  effect  on  homestead,  §  1265. 

Insured,  change  of  interest  by  death  of,  effect  of,  §  2556. 

Interest  under  will  deemed  created  at,  §  749. 

Joint  emijloyee,  death  of,  duty  of  survivor,  §  1991. 

Joint  guardian,  of,  power  of  survivor,  §  252. 

Legacies  and  devises  vest  at,  §  1340. 

Maker  of  instrument  bearing  nominal  date,  of,  effect  of,  §  3094. 

Mate,  of,  who  entitled  to  wages,  §  2062. 

Marriage,  dissolved  by,  §  90. 

Master,  death  of,  effect  on  apprenticeship,  §  266. 

Minor,  of,  representative  may  disaffirm  contract,  §  35. 

Notice  of  dishonor,  how  served  after,  §  3145. 

Notice  of  dishonor  in  ignorance  of,  effect  of,  §  3146. 

Of  partner,  dissolution  of  partnership,  §  2450. 

Parent,  custody  of  child  on  death  of,  §  197. 

Parent,  of,  leaving  child  unprovided,  remedy  of  supervisors,  §  205. 

Eevokes  proposal,  §  1587. 

Satisfying  gift  or  legacy  before  death,  §  1367. 

Seamen,  of,  who  entitled  to  wages  §  2062. 

Spouse,  of,  effect  on  homestead.     See  Homesteads. 

Trustee,  office  of  vacated  b}^,  §  2281. 

"Without  heir,"  etc.,  defined,  §  1071. 

DEBT.     See  Creditor;  Debtor. 

Agreement  to  answer  for,  of  another,  §  1624. 

Extinguished  by  offer  of  payment  when,  §  1500. 

Homestead,  liable  for  certain  debts,  §  1241. 

Husband  not  liable  for  antenuptial,  §  170. 

Legacies,  how  charged  with,  §§  1360,  1361. 

Liability  of  beneficiaries  for  testator's,  §  1377. 

Partner  in  liquidation  may  collect,  compromise,  etc.,  §  2461. 

Partner  may  require  partnership  property  to  be  applied  to,  §  2405. 

Pledgee  cannot  sell  evidences  of,  §  3006. 

Separate  property  of  wife  liable  for  her  own,  §  171. 

Separate  property  of  wife  not  liable  for  of  husband,  §  171. 

Special  partner,  liability  for,  §  2501. 

Special  partner's  contribution  liable  for,  §  2501. 

Stockholder,  liability  of  for,  §  322. 

Testator,  property  of,  how  disposed  of  in  payment  of,  §  ]359. 

Wife,  earnings  of,  not  liable  for,  of  husband,  §  168. 

DEBTOR.     See    Assignment   for   Creditors;    Creditor;    Debt;    Fraudulent 

Conveyance. 
Application  of  general  performance  by,  §  1479. 
Application  of  payment  of  interest,  §  1479. 
Application  of  performance,  §  1479.     See  Obligations. 
Contracts  valid  against  creditors,  when,  §  3431. 
Creditor  can  avoid  act  of  for  fraud,  when  only,  §  3441. 
Creditor,  defined,  §  3430. 
Debtor,  defined,  §  3429. 
Effect  of   directions  to,  by   creditor,  as   to   manner  of   performance, 

§  1476. 
Fraudulent  misrepresentation  of,  as  to  pledge,  §  2999. 
Guaranty,  need  not  be  written,  when,  §  2794. 
Insolvent,  defined,  §  3450. 
Joint,  release  of  one,  effect  of,  §  1543. 


1072  INDEX.  -^ 

DEBTOR.     (Continued.) 

Marshaling  of  assets,  §  3433. 

Novation  by  substituting  new  for  old,  §  1531. 

Novation.     See  Novation. 

Offer  of  payment  or  performance  stops  interest,  §  1504. 

Oft'er  of  performance  by  or  for,  §  1487. 

Performance  by  joint  debtor,  §  1474. 

Performance  must  be  made  by  or  for,  §  1473. 

Preferences,  may  give,  §  3432. 

Receipt  may  require,  §  1499. 

Relative  rights  of  creditors,  §  3433. 

Release,  obligation  when   extinguished  by,  §  1541 

Release  of,  by  creditor,  effect  of,  §  1542. 

Rights  of,  upon  prevention  of  performance,  §§  1512-1514. 

Surplus  of  rents  and  profits  of  trust  liable  to  creditors,  when,  §  859. 

DECEIT.     See  Fraud. 

An  essential  element  of  fraud,  §  1572. 

Class  of  persons,  deceit  upon,  effect  of,  §  1711. 

False  representations,  §  1710. 

In  general,  §§  1709-1711. 

One  willfully  deceiving  another,  liability,  §  1709. 

Public  deceit  with  intent  to  defraud,  effect  of,  §  1711. 

Renders  contract  voidable,  §  1567. 

Restoration  of  thing  wrongfully  acquired,  §§  1712,  1713. 

Upon  the  public,  effect  of,  §  l7ll. 

What  constitutes,  §  1710. 

When  actionable,  §§  1709,  1710. 

DECK. 

Freight  not  to  be  stowed  on,  §  2117. 
Tilings  stowed  on,  general  average,  §  2154. 

DECLARATION. 

Abandonment  of  homestead,  of,  §§  1243,  1244. 

Homestead,  of,  effect  of  filing  for  record,  §§  1265,  1269. 

Homestead,  of  how  acknowledged,  §§  1262,  1266. 

Homestead,  of,  to  be  recorded,  §§  1264,  1268. 

Homestead,  of,  what  to  contain,  §§  1263,  1267. 

Marriage,  of,  action  to  compel,  §  78. 

Marriage,  of,  how  made,  §§  75,  76. 

Marriage,  of,  to  be  acknowledged  and  recorded,  §  77. 

Oath  includes,  §  14. 

Testator's,  inadmissible  to  show  intent  §§  1318,  1340. 

Trust,  of,  act  in  contravention  to,  void.  §  870. 

Trust,  of,  effect  of  omitting  in  grant,  §  869. 

Trust,  of,  trustee  must  obey,  §  2258. 

Trust,  of,  what  to  express,  §  2253.  * 

-  DEED.     See  Conveyance;  Deeds  of  Trust;  Transfer. 
After-acquired  title  passes  by,  §  1106. 
Agreement  to  sell  realty  binds  one  to  execute  sufficient  conveyance. 

§  1731. 
Cancellation  of,  does  not  revest  title,  §  1058. 

Cemetery  corporations,  deeds  by/     Appendix,  tit.  "Corporations." 
Change  of  name,  conveyance  in  case  of,  §  1096. 
Code  does  not  affect  deeds  made  before,  §§  1205,  1206. 
Conclusiveness  as  to   parties  and  privies,  §  1107. 
Conditions  in.     See  Conditions. 
Conveyance   defined,  §  1215. 


INDEX.  1078 

DEED.     (Continued.) 

Covenants.     See  Covenants. 

Damages  for  breach  of  covenants  in,  §§  3304,  3305. 

Defeasance,  right  to  show  absolute  deed  made  subject  to,  §  2925. 

Defect  in,  curing,  §  1207. 

Delivery,  constructive,  what  is,  §  1059. 

Delivery  necessary  to,  §  1054. 

Delivery  presumed  to  be  at  date,  §  1055. 

Delivery  to  grantee  or  agent  must  be  absolute,  §  1056. 

Delivery  to  stranger,  effect  of,  §  1059. 

Escrow,  delivery  in,  §  1057. 

Fee  presumed  to  pass,  §  1105. 

Form  of,  §   1092. 

Grant  includes,  §  1053. 

Grant.     See  Grant. 

Guardian  may  be  appointed  by,  §  241. 

Heir,   conveyance    by,   valid   unless   will   proved   within   four   years, 

§  1364. 
Highway,  transfer  of  land  bounded  on,  what  passes,  §  1112. 
Incident  passes  with  transfer  of  principal,  §  1084. 
Incident,  transfer  of,  does  not  carry  principal,  §  1084. 
Incident,  follow  thing  transferred,  §  1084. 
Inheritance,  words  ot,  unnecessary  to  pass  fee,  §  1072. 
Interpretation  of.     See  Conveyances. 
Married  woman's,  effect  of,  §  1187. 

Married  woman's,  acknowledged,  as  if  not  married,  §  1093. 
Married  woman's,  made  how,  §  1093. 

Precedent  conditions,  grant  on  when  passes  title,  §  1110. 
Recitals  in,  resorting  to,  in  interpreting,  §  1068. 
Recording.     See  Eecording. 
Redelivery,  does  not  revest  title,  §  1058. 
Re-entry,  when  and  how  made,  §  791. 
Reservation  interpreted  in  favor  of  grantor,  §  1069. 
Right  of  re-entry  can  be  transferred,  §  1046. 
Surrendering  or  canceling  of  grant  does  not  reconvey,  §  1058. 
Third  person,  grant  may  inure  to  benefit  of,  §  1085. 
Time  of  creation  of  interest  created  by,  §  749. 
Title  deeds,  to  whom  belong,  §  994. 
Title,  what  passes,  §  1083. 
When  deemed  a  mortgage,  §§  2924,  2925. 

DEEDS  OF  TRUST. 

Trustee  under,  not  subject  to  supervision  of  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  101. 

DEFAMATION.     See  Libel;  Slander. 
How  effected,  §  44. 
Right  to  protection  from,  §  43. 

DEFAULT.     See  Statute  of  Frauds. 
Divorce  by,  §  130. 

DEFEASANCE.     See  Mortgages, 

DEFECT. 

(Certificate  of  acknowledgment,  in,  action  to  remedy,  §  1202.     See  Ac- 
knowledgments. 

Depositor  must  indemnify  depositary  for,  §  1833. 

Lender  must  indemnify  borrower  for,  §  1893. 
Civ.  Codfi — 08 


1074 


INDEX. 


DEFECT.     (Continued.) 

Warranty  of  manufacturer  against  latent,  §  1769. 
Will,  in  description  in,  §  1340. 

DEFINITIONS.     See  Words  and  Phrases. 
Abandonment,  §  2716. 
Absolute  ownership,  §  679. 
Accord,  §  1521. 
Actual  agency,  §  2299. 
Actual  authority,  §  2316. 
Actual  fraud,  §  1572. 
Actual  notice,  §  18. 
Adultery,  §  93. 
Adults,  §  27. 
Advancements,  §  1397. 
Agency,  §  2295. 
Agency,  actual,  §  2299. 
Agency,  ostensible,  §  2300. 
Agent,  §  2295. 

Agents,  general  and  special,  §  2297. 
Agreement  to  buy,  §  1728. 
Agreement  to  sell,  §  1727. 
Agreement  to  sell  and  buy,  §  1729. 
Annuities,  §  1357. 
Appurtenances,  §  662. 
Appurtenances  of  ship,  §  961. 
Articles  of  incorporation,  §  289. 
Auctions,  §  1792. 
Authority,  actual,  §  2299. 
Authority,  ostensible,  §  2317. 
Baggage,  §  2181. 
Bail,  §  2780. 

Bank.     Appendix,  tit.  "Banking,"  §  2. 
Beneficiary,  §  2218. 
Bill  of  exchange,  §  3171. 
Bill  of  lading,  §  2126. 
Bottomry,  §  3017.     ■ 
Building  and  loan  corporations,  §  648. 
Carriage,  contract  of,  §  2085. 
Carriers,  inland,  §  2087. 
Carriers,  marine,  §  ^087. 
Charter-party,  §  1959. 
Chattel  interests,  §  765. 
Chattels  real,  §  765. 
Check,  §  3254. 
Chose  in  action,  §  953. 
Collateral  consanguinity,  §  1390. 
Collusion,  §  114. 

Commercial  bank.     Appendix,  tit.  "Banking,"  §  5. 
Common  carrier,  §  2168. 
Community  property,  §§  164,  687. 
Compensation,  §  3274. 
Completion  of  appropriation,  §  1417. 
Concealment,  §  2561. 

Conditional  devises  and  bequests,  §  1345. 
Conditional  limitation,  §  778. 
Conditions  concurrent,  §  1437. 
Conditions  precedent,  §§  708,  1346,  1436. 
Conditions  subsequent,  §§  708,  1349,  1438. 


INDEX.  107( 

DEFINITIONS.     (Continued.) 
Condonation,  §  115. 
Connivance,  §  112. 
Consignee,  §  2110. 
Consignor,  §  2110. 
Constructive  fraud,  §  1573. 
Constructive  notice,  §  18. 
Contingent  interests,  §  695. 
Continuing  guaranty,  §  2814. 
Contract,  §  1549. 
Contract,  executed,  §  1661. 
Contract,  executory, §  1661. 
Contract,  express,  §  1620. 
Contract,  implied,  §  1621. 
Contract,  object  of,  §  1595. 
Contract  of  carriage,  defined,  §  2085. 
Contract  of  mutual  insurance,  §  453d. 
Contract  of  mutual  insurance  on  assessment  plan,  §  453d. 
Conveyance,  §  1215. 
Corporation,  §  283. 
Corporations,  private,  §  284. 
Corporations,  public,  §  284. 
Covenants,  running  with  the  land,  §  1460. 
Create  debts,  §  579. 
Creditor,  §  3430. 
Debtor,  §  3429. 

Demonstrative  legacy,  §  1357. 
Depose,  §  14. 

Deposit  for  exchange,  §  1818. 
Deposit  for  safe-keeping,  §  1817. 
Deposit,  gratuitous,  §  1844. 
Desertion,  §  95. 
Detriment,  §  3282. 
Deviation,  §  2694. 
Direct  consanguinity,  §  1390. 
Domestic  navigation,  §  962. 
Domestic  ship,  §  963. 
Dominant  tenement,  §  803. 
Double  insurance,  §  2641. 
Duress,  §  1569. 

Employment,  contract  of,  §  1965. 
Employment  for  specific  term,  §  1999. 
Entire  mortgage  guaranty,  §  453bb. 
Equipments,  §961. 
Escrow,  §  1057. 
Exchange,  §  1804. 
Executed  contract,  §  1661. 
Executory  contract,  §  1661. 
Express  contracts,  §  1620. 
Extreme  cruelty,  §  94. 
Factor,  §§2026,  2367. 
Fee,  §  762. 
Fixtures,  §  660. 

Foreign  bill  of  exchange,  §  3224. 
Foreign  navigation,  §  962. 
Foreign  shipy.§  963. 
Fraud,  actual,  §  1572. 
Fraud,  constructive,  §  1573. 
Freeholds,  §  765. 


1076  INDEX. 

DEFINITIONS.     (Continued.) 
Free  shares,  §  634. 
Freight,  §  2110. 
Freightage,  §§2110,  2661. 
Future  interest,  §  690. 
General  agent,  §  2297. 
General  average,  §  2148. 
General  indorsement,  §  3112. 
General  legacies,  §  1357. 
General  letter  of  credit,  §  2861. 
General  lien,  §  2874. 
General  partnership,  §  2424. 
Gift,  §  1146. 

Gift,  causa  mortis,  §  1149. 
Good  consideration,  §  1605. 
Good-will,  §  992. 
Grant,  §  1053. 
Gratuitous  deposit,  §  1844. 
Guaranty,  §  2787. 
Guaranty,  continuing,  §  2814. 
Guardian,  §  236. 
Guardian,  general,  §  239. 
Guardian,  special,  §  240. 
Habitual  intemperance,  §  106. 
Head  of  family,  §  1261. 
Hiring,  §  1925. 
Holographic  will,  §  1277. 
Homestead  corporation,  §  557. 
Hydraulic  mining,  §  1425. 
Implied  contract,  §  1621. 
Impossibility,  §  1597. 
Income,  §  748. 
Incumbrance,  §  1114. 
Indemnity,  §  2772. 
Indorsee  in  due  cause,  §  3123. 
Indorsement,  §  3108. 
Indorser,  §  3108. 
Inland  bill  of  exchange,  §  3224. 
Inland  carriers,  §  2087. 
Insolvency,  §§  3077,  3450. 
Insurable  interest,  §  2546. 
Insurance, §  2527. 
Insured,  §  2538. 
Insurer,  §  2538. 
Interest,  §  1915. 
Interest  in  common,  §  685. 
Involuntary  trust,  §  2217. 
Jettison,  §  2148. 
Joint  interest,  §  683. 
Land,  §  659. 

Letter  of  credit,  §  2858. 
Letter  of  credit,  general,  §  2861. 
Letter  of  credit,  special,  §  2861. 
Libel,  §  45. 
Lien,  §  2872. 
Liens,  general,  §  2874. 
Liens,  special,  §  2875. 
Limited  interest,  §  692. 
Loan,  §  1884. 


INDEX.  1077 


DEFINITIONS.      (Continued.) 
Loan  for  exchange,  §  1902. 
Loan  for  money,  §  1912. 
Manager  of  ship,  §  2070. 
Managing  owner  of  ship,  §  2070. 
Marine  carriers,  §  2087. 
Marine  insurance,  §  2655. 
Marriage,  §  55. 
■     Mate,  §  2048. 

Mistake  of  fact,  §  1577. 

Mistake  of  law,  §  1578. 

Month,  §  14. 

Mortgage,  §  2920. 

Mortgage  insurance,  §  453bb. 

Mortgage  participation  certificate,  §  453bb. 

Negotiable  instrument,  §  3087. 

Novation,  §  1530. 

Nuisance,  §  3479. 

Nuisance,  private,  §  3481. 

Nuisance,  public,  §  3480. 

Object  of  contract,  §  1595. 

Obligation,  §  1427. 

Olographic  will,  §  1277. 

Open  policy,  §  2595. 

Ostensible  agency,  §  2300. 

Ostensible  authority,  §  2317. 

Ownership,  §  654. 

Partnership,  §  2395. 

Partnership,  general,  §  2424. 

Partnership  interest,  §  684. 

Payment,  §  1478. 

Perpetual  interest,  §  691. 

Personal  property,  §  663. 

Pledge,  §§  2986,  2987. 

Pledged  shares,  §  634. 

Policy  of  insurance,  §  2586. 

Policy  of  mortgage  insurance,  §  453bb. 

Policy  of  title  insurance,  §  453v. 

Prescription,  §  1007. 

Present  interest,  §  689. 

Private  nuisance,  §  3481. 

Privileged  communication,  §  47. 

Promissory  note,  §  3244. 

Property,  §§  14,  654. 

Public  nuisance,  §  3480. 

Qualified  ownership,  §  680. 

Keal  property,  §  14. 

Recrimination,  §  122. 

Reinsurance,  §  2646. 

Remainder,  §  769. 

Residuary  legacies,  §  1357. 

Respondentia,  §  3036. 

Reversion,  §  768. 

Running  policy,  §  2597. 

Sale,  §  1721. 

Satisfaction,  §  1523. 

Savings  bank.     Appendix,  tit.  "Banking,"  §  4, 

Seamen,  §  2049. 

Seaworthiness,  §  2682. 


1078  INDEX. 

DEFINITIONS.      (Continued.) 
Security,  §  453bb. 

Separate  property  of  husband,  §  163. 
Separate  property  of  wife,  §  162. 
Servant,  §§  2009,  2012. 
Servient  tenement,  §  803. 
Several  or  sole  ownership,  §  681. 
Shares,  free,  §  631. 
Shares,  pledged,  §  634, 
Ship,  §  960. 
Shipping,  §  960. 
Slander,  §  46. 
Special  agent,  §  2297. 
Special  indorsement,  §  3113. 
Special  letter  of  credit,  §  2861. 
Special  liens,  §  2875. 
Specific  legacy,  §  13.57. 
Storage,  §  1851. 
Succession,  §  1383. 
Surplus,  §  453dd. 
Surety, §  2831. 
Testify,  §  14. 
Thing  in  action,  §  953. 
Time,  unreasonable  lapse  of,  §  125. 
Transfer,  §§  1039,  1040. 

Trust  company.     Appendix,  tit.  "Banking,  §  6. 
Trust,  court.     Appendix,  tit.  "Banking,"  §  101. 
Trust,  private.     Appendix,  tit.  "Banking,"  §  101. 
Trustee,  §  2218. 

Trust  funds.     Appendix,  tit.  "Banking,"  §  98. 
Trustor,  §  2218. 
Trusts,  involuntary,  §  2217. 
Trusts,  voluntary,  §  2216. 
Undue  influence,  §  1575. 
Valued  policy,  §  2596. 
Vested  future  interest,  §  694. 
Voluntary  transfer,  §  1040. 
Voluntary  trust,  §  2216. 
Ward,  §  237. 
Warranty,  §  1763. 
Willful  neglect,  §  105. 
Words  and  phrases.     See  Words  and  Phrases. 

DEGREE. 

Of  kindred,  how  established,  §  1389. 

DELAY. 

Carrier  to  travel  without  unreasonable,  §  2104. 

Creditor,  of,  does  not  discharge  guarantor,  §  2823. 

Deemed  deviation,  when,  §  2694. 

Excuse  of  performance  by,  §  1511. 

How  excused,  §  1511. 

In  performance,  may  be  compensated  for,  when,  §  1492. 

Insurance,  notice  of  loss  under,  to  be  given  without,  §§  2633,  2636. 

Marine  carrier  not  to  delay  in  voyage,  §  2117. 

Presentment,  in,  of  notice  of  dishonor  excused  when,  §  3158. 

Presentment,  in,  of  promissory  note,  effect  of,  §  3248. 

Presentment  of  bill  of  exchange,  in,  effect  of,  §  3189. 

Presentment  of  bill  of  exchange,  in,  how  excused,  §  3219. 


INDEX.  1079 

DELAY.      (Continued.) 

Presentment  of  check,  in,  effect,  §  3255. 

Protest,  in,  how  excused,  §  3230. 

Reasonable  grounds  for,  rebuts  presumption  from  lapse  of  time,  §  126. 

DELINQUENT. 

Assessment,  action  to  recover  stock  sold  for,  §  347. 
Assessment,  sale  of  stock  for,  §  341. 

DELIVERY. 

Compelling  delivery  of  personalty  to  person   entitled  to  possession, 

§  3380. 
Constructive,  what  deemed  to  be,  §  1059. 
Contract  in  writing  takes  effect  on,  §  1626. 
Deemed  time  of  creation  of  interest,  §  749. 
Deposit,  of,  by  joint  owners,  §  1827. 
Deposit,  of,  demand  necessary,  §  1823. 
Deposit,  of,  on  demand,  §  1822. 
Deposit,  of,  place  of,  §  1824. 

Employee  not  to  deliver  without  demand,  §  1987. 
Freight,  of,  place  of,  §§  2118,  2119. 
Freight,  of,  to  holder  of  bill  of  lading,  §  2131. 
Freight,  of,  to  whom  and  manner  of,  §§  2118,  2119. 
Gift,  of,  necessary,  §  1147. 
Goods  sold,  of,  buyer's  directions,  §  1757. 
Goods  sold,  of,  expense  of,  §  1755. 

Goods  sold,  of,  notice  of  election  as  to  mode  of,  §  1756. 
Goods  sold,  of,  reasonable  hour,  §  1758. 
Goods  sold,  of,  when  to  be  made,  §  1753. 
Goods  sold,  of,  where  to  be  made,  §  1754. 
Grdnt,  of,  necessary,  §  1054. 
Grantee,  to,  necessarily  absolute,  §  1056. 
In  escrow,  §  1057. 
Pledge,  essential  in,  §  2988. 
Presumption  of  time  of,  §  1055. 
Redelivery  does  not  revest  title,  §  1058. 
Stranger,  delivery  to,  effect  of,  §  1059. 
Thing  bought,  to  be  paid  for  on,  §  1784. 

DEMAND. 

Agent  to  deliver  to  third  person  on,  §  2344. 

Deposit  need  not  be  delivered  without,  §  1823. 

Deposits  to  be  delivered  on,  §  1822. 

Employee  not  bound  to  deliver  without,  §  1987. 

Employee,  to  render  account  without,  §  1986. 

Goods  sold  to  be  delivered  upon,  §  1753. 

Guarantor,  upon,  unnecessary,  §  2807. 

Lent  thing  need  not  be  returned  unless  demanded,  when,  §  1891. 

Lent  thing  to  be  returned  without,  when,  §  1895. 

Negotiable  instrument,  of  payment  of,  when  necessary,  §  3130. 

Pledgee,  demand  by  and  waiver  of,  §§  3001,  3004. 

Pledgor,  of  performance,  must  be  made  before  sale,  §  3001. 

Restoration  of  thing  wrongfully  taken,  necessity  of,  §  1713. 

Servant  to  deliver  without,  §  2014. 

DEPOSE. 

Includes  what,  §  14., 

DEPOSIT.     See  Depositary;  "Warehouseman, 
Animals,  of,  §  1834, 


1080  INDEX. 

DEPOSIT.      (Continued.) 
Borrower.     See  Loan. 
Charges,  sale  to  satisfy,  §  1857. 
Delivery  of.     See  Depositary. 
Depositor,  who  is,  §  1814. 
Exchange,  deposit  may  be  for,  §  1813. 
Exchange,  for,  defined,  §  1818. 
Exchange,  for,  effect  of,  §  1878. 
Finder,  duty  of,  §  1865. 

Finder  may  put  thing  found  on  storage,  §  1868. 
Finder,  obligation  of,  §  1864. 
Finder,  sale  of  thing  found,  §§  1869,  1870. 

Finder,  surrender  of  thing  found  exonerates  from  liability,  §  1871. 
Finder  to  notify  owner,  etc.,  §  1865. 
Finder.     See  Lost  Property. 

Found  property,  claimant  to  prove  ownership,  §  1866. 
Gratuitous,  defined,  §  1844. 
Gratuitous,  involuntary,  is,  §  1845. 
Hire,  for,  called  storage,  §  1851. 
Hire,  for.     See  Storage. 
Ii;demnify,  depositor  to,  §  1833. 
Innkeeper,  with,  §§  1859,  I860. 
Involuntary,  duty  of  depositary,  §  1816.    . 
Involuntary,  how  made,  §  1815. 
Involuntary,  gratuitous,  §  1845. 
Involuntary,  or  voluntary,  may  be,  §  1813. 
.loint  delivery  may  be  to  one  depositor  or  to  survivor,  §  1828. 
Joint,  delivery  to  depositors,  §  1827. 
Joint,  delivery  to  survivor,  §  1828. 

Joint,  performance  to  one  creditor,  effect  of,  §§  1475,  1828. 
Keeping,  deposit  for,  what  is,  §  1817. 
Kinds  of,  §  1813. 
Lien  for  storage, §  1856. 
Lien,  sale  to  satisfy,  §  1857. 
Loan.     See  Loan. 

Loss  or  injury,  liability  for,  §  1838. 
Money  in  payment  of  debt,  of,  §  1500. 
Rightful  owner,  duties  of,  on  notice  to,  of,  §  1826. 
Rightful  owner,  notice  to,  of,  §  1826. 
Safe-keeping,  deposit  may  be  for,  §  1813. 
Safe-keeping,  for,  defined,  §  1817. 
Sale  of  perishables,  §§  1837,  1857. 
Sale  of  property,  when  may  be  ordered,  §  1857. 
Sale  of  thing  found,  §§  1869,  1870. 
Storage, §§  1851-1857.     See  Storage. 
Termination  of,  §§  1854,  1855. 

Termination,  right  of,  when  agreement  as  to  time,  §  1855. 
Trust   company,   deposit    of   money   in   and    discharge  from  liability. 

Appendix,  tit.  "Banking,"  §  91. 
Trust  company,  deposit  of  money  in  and  reduction  of  bond.     Appen- 
dix, tit.  "Banking,"  §  93. 
Use  of  thing  loaned,  §  1890. 
Voluntary,  how  made,  §  1814. 
Voluntary  or  involuntary,  may  be,  §  1813. 

DEPOSITARY.     See  Deposit;  Warehouseman. 
Adverse  claim,  notice  of,  to  owner,  §  1825. 
Animals,  of,  compensation  for  part  of  week,  §  1853. 
Animals,  of,  duty  toward,  §1834. 
Animals,  of.     See  Agistors. 


INDEX.  1081 

DEPOSITARY.      (Continued.) 

Compensation  of,  for  part  of  week  or  month,  §  185.3. 

Corporation  authorized  to  act  as,  minimum  capital  required  and  affi- 
davit as  to,  §  290a. 

Damages  from  wrongful  use,  liability  for,  §  1836. 

Delivery  by,  must  be  made  on  demand,  §  1822. 

Delivery  by,  notice  to  owner  of  adverse  claim,  §  1825. 

Delivery  by,  not  required  before  demand,  §  1823. 

Delivery  by,  of  thing  owned  jointly,  §  1827. 

Delivery  by,  on  demand,  when  excused,  §  1822. 

Delivery  by,  place  of,  §  1824. 

Depositor  must  indemnify,  for  what,  §  1833. 

Depositor,  who  is,  §  1814. 

Duties  and  liabilities  prescribed  by  title  on  employment,  §  1839. 

Gratuitous,  care  required  of,  §  1846. 

Gratuitous,  creditor  is,  when,  §  1505. 

Gratuitous,  duties  cease,  when,  §  1847. 

Gratuitous,  notice  to  owner  to  remove,  §  1847. 

Gratuitous,  notice  to  remove  where  deposit  involuntary,  §  1847. 

Hire,  for,  compensation  for  parts  of  week,  etcT,  §  1853. 

Hire,  for,  degree  of  care  required  of,  §  1852. 

Hire,  for,  finder  has  obligations  of,  when,  §  1864. 

Hire,  for,  lien  for  charges,  code  provisions  governing,  §  1856. 

Hire,  for,  lien  for  storage,  §  1856. 

Hire,  for,  sale  of  perishables  or  luggage  for  charges,  right  of,  §  1857. 

Hire,  for,  termination  of  hiring,  §§  1854,  1855. 

Hire,  for,  who  is,  §  1851. 

Insurable  interest  of,  §  2548. 

Involuntary,  depositary  entitled  to  no  reward,  §  1845. 

Involuntary,  duties  of,  §  1816. 

Involuntary,  notice  to  owner  to  remove,  §  1847. 

Joint  owners  of  thing  deposited,  delivery  to  whom  made,  §  1827. 

Liability  for  loss  or  injury,  §  1838. 

Liability  to  rightful  owner  of  thing  deposited,  §  1826. 

Liable,  depositor  is,  for  what  damages  and  expenses,  §  1833. 

Lien,  code  provisions  governing,  §  1856. 

Lien  for  advances,  insurance  and  expenses,  §  1856. 

Lien  for  expenses  of  sale  on  default,  §  1856. 

Lien  of,  for  storage,  §  1856. 

Lien  regulated  by  title  on  liens,  §  1856. 

Lien,  sale  of  property  to  satisfy  right  of,  §  1857. 

Negligence,  limitation  of  liability  for,  §  1840. 

Notice  to  owner  of  adverse  claim,  §  1825. 

Notice  to  rightful  owner  of  thing  deposited  with,  §  1826. 

Opening  deposit,  rights  and  duties  as  to,  §  1835. 

Perishables,  may  sell  when,  §§  1837,  1857. 

Person  offering  thing  in  performance,  duty  of,  §  1503. 

Presumed  to  have  permitted  loss  or  injury  to  thing  deposited,  when, 
§  1838. 

Rightful  owner,  duties  of,  on  notice  to,  of  deposit,  §  1826. 

Sale  by,  of  storage  property,  right  of,  §  1857. 

Sale  of  thing  in  danger  of  perishing,  §  1837. 

Sale  of  perisliables  or  luggage  for  charges,  right  of,  §  1857. 

Seller  of  personalty  is,  before  delivery,  §  1748. 

Service  by,  duties  and  liabilities  prescribed  by  title  on  employment, 
§  1839. 

Thing  wrongfully  detained,  exoneration  of  depositary,  §  1826. 

Thing  wrongfully  detained,  notice  to  owner  by  depositary,  §  1826. 


1082  INDEX. 

DEPOSITARY.      (Continued.) 

Trust   company,   deposit   of   money  in   and   discharge  from  liability, 

Appendix,  tit.  "Banking,"  §  91. 
Trust  company,  deposit  of  personal  assets  in  and  reduction  of  bond. 

Appendix,  tit.  "Banking,"  §  93. 
Use  of  deposit,  rights  and  obligations  as  to,  §  1835. 
Use,  wrongful,  liability  for,  §  1836. 
Who  is,  §§  1814,  1851. 

DEPUTY. 

Acknowledgments,  may  take,  §  1184. 

DESCENT.     See  Succession. 

Homestead,  succession  to  on  death  of  spouse,  §  1265. 
Statute  of,  descents,  §  1386. 

DESCRIPTION. 

Agreement  to  compensate  for  errors  of,  effect  of,  §  1690. 
Error  of,  in  will,  how  remedied,  §  1340. 

DESERTION.     See  Divorce. 

DESIGNS.     See  Literary  Property. 
Ownership  of,  §  9'80. 

DESTROYED    RECORDS    OR    DOCUMENTS.     See  Burnt  Eeeords  and 
Documents;  Lost  Instruments. 

DESTRUCTION. 

Of  will  is  revocation,  §  1292. 
Of  will,  how  proved,  §  1293. 
Of  written  contract,  effect  of,  §§  1699,  1700. 

DETENTION. 

Of  person  or  property  avoids  contract,  when,  §  1569. 
Of  property,  damages  for,  §  3335. 

DETRIMENT.     See  Compensation;  Damages. 
Defined,  §  3282. 

DEVIATION.     See  Marine  Carriers. 
Carrier  not  to  make,  §  2104. 
Defined,  §  2694. 

Marine  carrier  not  to  make,  §  2117. 
Marine  Insurance,  §§  2692-2697. 

DEVISE.     See  Wills. 

DEVISEES.     See  Wills. 

DILIGENCE.     See  Care. 

DIRECTION. 

Buyer's,  as  to  delivery,  §  1757. 
Carrier  to  follow  whose,  §§  2115,  2116. 
Employee  to  follow.  §  1981. 
Factor  to  follow,  §  2027. 
Trustee  must  follow,  §  2258. 

DIRECTOR.     See  Corporations,  VII. 

Banks,  of.     See  Banks  and  Banking. 

Number  of,  in  corporations  not  organized  for  profit,  §  593. 


INDEX.  1083 

DISAFFIRMANCE. 

Of  infants'  contracts,  §§  35,  37. 

DISCHARGE. 

Of  employee,  §§  1996,  2000,  2015.     See  Master  and  Servant. 

Of  principal  does  not  discharge  guarantor,  when,  §  2825. 

Of  trustee,  §§  2233,  2282. 

Of  trustee,  duties  of,  before  accepting  his,  §  2260. 

Of  trustee,  who  succeeds  after,  §§  2287-2289. 

DISHONOR.     See  Negotiable  Instruments,  XII. 

DISMISSAL. 

Consent  necessary  to  after  interlocutory  decree  of  divorce  entered, 
§131. 

DISSOLUTION. 

Corporations.     See  Corporations,  XVII. 

Non-profit,   co-operative,  agricultural,   viticultural,  and  horticultural 

association,  of, §  653q. 
Partnership,  of.     See  Partnership. 
Savings  and  loan  corporation,  disposal  of  reserve  fund,  §  577. 

DISTRIBUTION.     See  Succession. 

Community  property,  on  divorce,  §  147. 

Effect  of  advancement  on  distribution  of  estate,  §§  1395-1399. 

Intestates,  of  property  of,  §§  1384,  1386. 

Order  for,  subject  to  revision  on  appeal,  §  148. 

Eules  of  descent  and  distribution  in  case  of  intestacy,  §  1386. 

Eules  of,  where  one  dies  intestate,  §  1386. 

DISTRICT  ATTORNEY. 

Action  for  penalty  against  bridge,  ferry,  etc.,  corporation,  §  530. 
Duty  where  foreign  corporation  fails  to  file  articles,  §  410. 
Examination  into  affairs  of  corporation  by,  §  382. 
May  consent  to  adoption  of  child,  when,  §  224. 

DISTRICT  COURT  OF  APPEALS. 

Judges  of,  may  solemnize  marriage,  §  70. 

DITCH.     See  Flumes. 

DIVIDENDS.     See  Corporations,  XIV;  Fire  and  Marine  Insurance  Cor- 
porations; Title  Insurance  Corporations. 
Amounts   to   be  reserved   before   making,   by  insurance   corporation, 

§§  429,  431,  432,  452. 
Assignee  for  creditors,  by,  §  3468. 
Mortgage  insurance  corporations,  by,  §  453dd. 
Savings  and  loan  corporations,  dividends  of,  §§  573,  583. 
Stock  payable  to  mariied  women,  on,  to  whom  paid,  §§  325,  575. 

DIVISION  FENCE. 

Duties  of  coterminous  owners,  §  841. 
Easement  of  maintenance,  §  801. 

DIVORCE. 

Adultery  a  ground  for,  §  92. 

Adultery,  community  property,  how  disposed  of,  §§  146,  147,  148. 

Adultery  defined,  §  93. 

Adultery,  homestead,  how  disposed  of,  §§  146,  147,  148. 

Adultery,  limitation  of  action  for  divorce,  §  124. 


1084  INDEX. 

DIVORCE.     (Continued.) 

Adultery  of  husband,  legitimacy  of  children,  how  affected  by  divorce 
for,  §  144. 

Adultery  of  wife,  legitimacy  of  children,  how  affected,  §  145. 

Alimony,  community  and  separate  property,  order  of  resort  to,  §  141. 

Alimony,  execution  for,  §  137. 

Alimony,  modifying  orders  granting,  §§  137,  139. 

Alimony,  pendente  lite,  when  allowed,  §  137. 

Alimony,  permanent,  modifying  or  vacating  orders  relating  to,  §  138. 

Alimony,  permanent,  when  allowed,  §  139. 

Alimony,  receiver,  §  140. 

Alimony,  security  for,  §  140. 

Alimony,  separate  property  when  not  subject  to,  §  142. 

Alimony,  when  divorce  not  granted,  §  136. 

Alimony,  when  wife  has  sufficient  support,  §  142. 

Annulment  of  marriage,  §§  82-86. 

Appeal,  revision  of  order  disposing  of  property,  §  148. 

Children  are  legitimate,  §  1387. 

Children,  community  and  separate  property  may  be  subjected  to  sup- 
port of,  §  143. 

Children,  community  and  separate  property,  order  of  resort  to  for 
support  of,  §  141. 

Children,  custody,  care  and  maintenance  of,  §§  138,  139. 

Children,  legitimacy,  how  affected  by  divorce  for  adultery,  §§  144,  145. 

Children,  maintenance  and  education,  security  for,  §  140. 

Children,  order  relating  to,  modification  and  vacation  of,  §§  138,  139. 

Children,  providing  for,  where  divorce  denied,  §  136. 

Children.     See  Parent  and  Child. 

Collusion  defeats,  §  111. 

Collusion  defined,  §  114. 

Collusion,  presumption  of,  from  lapse  of  time,  §§  125,  126. 

Community  and  separate  property  subject  to  support  of  children, 
§143. 

Community  or  separate  property,  order  of  resort  to  for  support  of 
children,  §  141. 

Community  property  disposed  of,  how,  §§  146,  147. 

Community  property,  order  disposing  of,  subjec-t  to  appeal,  §  148. 

Condonation  as  a  bar,  §§  111,  123. 

Condonation  avoided  by  concealment,  §  120. 

Condonation  cures  desertion,  §  102. 

Condonation  defeats,  §  111. 

Condonation  defined,  §  115. 

Condonation,  evidence  of,  what  is  not,  §  118. 

Condonation,  implies  what,  §  117. 

Condition  in  case  of  cruelty,  §§  118,  119. 

Condonation,  presumption  of,  from  lapse  of  time,  §§  125,  126. 

Condonation,  recriminatory  defense,  §  123. 

Condonation,  refusal  of  offer  of  amounts  to  desertion,  §  102. 

Condonation,  requisites  to,  §  116. 

Condonation  revoked  by  what  acts,  §  121. 

Condonation,  when  only  can  be  made  in  certain  cases,  §  119. 

Connivance  defeats,  §  111. 

Connivance,  defined,  §  112. 

Connivance  manifested,    how,  §  113. 

Connivance,  presumption  of,  from  lapse  of  time,  §§  125,  126. 

Consent,  corrupt,  how  manifested,  §  113. 

Conviction  of  felony  a  ground  of,  §  92. 

Conviction  of  felony,  limitation  of  action  for  divorce,  §  124. 

Counsel  fees,  allowing  pendente  lite,  §  137. 


INDEX.  1085 

DIVORCE.      (Continued.) 

Counsel  fees,  execution  for,  §  137. 
Counsel  fees,  what  property  to  be  resorted  to,  §  141. 
Cross-complaint  in,  cross-comjylainant  must  personally  verify,  §  128. 
Cross-complaint  in,  cross-complainant  need  not  be  a  resident,  §  128. 
Cruelty,  arising  from  course  of  offense,  conduct,  condonation  in  case 

of,  §  118. 
Cruelty,  condonation  in  ease  of  excessive  acts  of  cruelty,  §  118. 
Cruelty,  condonation,  when  only  can  be  made,  §  119. 
Cruelty,  desertion  induced  by,  §  98. 
Cruelty,  extreme,  defined,  §  94. 
Cruelty,  extreme,  a  ground  of  divorce,  §  92. 

Cruelty,  extreme,  disposition  of  community  property,  §§  146,  147,  148. 
Cruelty,  extreme,  homestead,  how  disposed  of,  §§  146,  147,  148. 
Cruety.  extreme,  what  is,  §  94. 

Cruelty,  what  acts  not  evidence  of  condonation,  §  118. 
Custody  of  children,  modification  or  vacation  of  orders,  §  138. 
Custody  of  children,  orders  respecting,  §  138. 
Decision  and  conclusions  of  law  filed  as  in  other  cases,  §  131. 
Decree,  decision  and  conclusions  filed  as  in  other  cases,  §  131. 
Decree  not  granted  on  uncorroborated  statements,  §  130. 
Decree  on  findings  or  statements  of  referee,  §  130. 
Decree  restores  parties  to  unmarried  state,  §  91. 
Decree  where  divorce  not  granted,  §  131. 
Decree.     See  post.  Interlocutory  Judgment. 
Default,  decree  not  granted  by,  §  130. 
Default,  proof  of  allegations,  §  130. 
Defenses  to  actions  for,  §  111. 
Denying,  grounds  for,  §  111. 

Desertion  by  refusal  to  abide  by  husband's  selection  of  home,  §  103. 
Desertion,  by  selecting  unfit  domicile,  §  104. 
Desertion  cured,  how,  §  102. 
Desertion  defined,  §  95. 

Desertion,  in  case  of  cruelty,  who  commits,  §  98. 
Desertion,  in  case  of  fraud  or  stratagem,  who  commits,  §  97. 
Desertion,  induced  by  cruelty,  §  98. 
Desertion,  induced  by  fraud  or  stratagem,  §  97, 
Desertion,  manifested,  how,  §  96. 
Desertion,  mode  of  living,  providing  unfit,  §  104. 
Desertion,  mode  of  living,  refusal  to  accept  husband's,  §  103. 
Desertion  must  extend  one  year,  §  107. 

Desertion,  refusal  of  offer  of  condonation  amounts  to,  §  102. 
Desertion,  refusal  of  reconciliation  amounts  to,  when,  §  101. 
Desertion,  return  and  soliciting  of  condonation  cures,  §  102. 
Desertion,  separation  becomes,  when,  §  100. 
Desertion,  separation  by  consent  is  not,  §  99. 
Desertion,  what  amounts  to,  §  96. 
Desertion,  willful,  a  ground  for,  §  92. 

Disposition  of  homestead  and  community,  mode  of,  §  146. 
Disposition  of  homestead  and  community,  order  for  §  147. 
Disposition  of  homestead  and  community,  revision  of  order  for,  on 

appeal,  §  148. 
Disposition  of  property,  order  for,  §  147. 
Domicile,  each  spouse  may  have  on  separation,  §  129. 
Domicile  fixed  by  husband,  refusal  of  wife  to  abide  by,  is  desertion, 

§103. 
Domicile,  husband  may  fix,  §  103. 
Domicile  of  wife  in  actions  for,  §  129. 
Domicile,  presumptions  as  to  do  not  apply  in,  §  129. 


1086  INDEX. 

DIVORCE.      (Continued.) 

Domicile,  unfit,  husband  selecting,  amounts  to  desertion,  §  104. 

Eifect  of  decree  of  divorce, §  91. 

Evidence,  not  granted  on  uncorroborated  testimony  of  parties,  §  130. 

Evidence  of  facts  alleged  necessary,  §  130. 

Final  judgment  entered  when  divorce  denied,  §  131. 

Final  judgment  when  entered  on  interlocutory  judgment  and  rights 

on,  §  132. 
Grounds  for,  §  92. 
Grounds  for  denying,  §  111. 

Habitual  intemperance,  a  ground  of  divorce,  §  92. 
Habitual  intemperance,  defined,  §  106. 
Habitual  intemperance,  must  extend  one  year,  §  107. 
Homestead  disposed  of,  how,  §§  146,  147. 
Homestead,  order  disposing  of,  appealable,  §  148. 
Interlocutory  judgment,  appeal  may  be  taken  in  six  months,  provision 

repealed,  §  131,  Legislation,  note. 
Interlocutory  judgment,  death  of  party  after,  effect  on  right  to  enter 

final  judgment,  §  132. 
Interlocutory  judgment     entered  when  divorce  granted,  §  131. 
Interlocutorv   judgment,    final    decree    entered   on   motion    of    either 

party,  §"132. 
Interlocutory  judgment,  final  decree,  entry  of  no  defense  to  criminal 

prosecution,  §  132. 
Interlocutory  judgment,  final  decree,  entry  of,  on,  does  not  validate 

prior  marriage,  §  132. 
Interlocutory  judgment,  final  decree  may  be  entered  on  in  one  year, 

§  132. 
Interlocutory  judgment,  final  decree  on,  effect  of  and  rights  under, 

§132. 
Interlocutory  judgment,  final  decree,  relief  that  may  be  granted  on, 

§132. 
Interlocutory   judgment,    final    decree,    when    entered    where    appeal 

taken  or  new  trial  asked,  §  132. 
Interlocutory  judgment,  neither  party  can  dismiss  after,  without  con- 
sent of  other,  §  131. 
Interlocutory  judgment,  remarriage  within  one  year  from  entry  of, 

void,  §  61. 
Lapse  of  time  defeats,  §§  111,  124. 

Lapse  of  time  establishes  what  presumptions,  §§  125,  126. 
Lapse  of  time,  unreasonable,  what  is,  §  125. 
Legitimacy  of  children  born  after,  §  194. 

Legitimacy  of  children  when  divorce  for  adultery  of  husband,  §  144. 
Legitimacy  of  children  when  divorce  for  adultery  of  wife,  §  145. 
Limitation  defeats,  §  111. 
Limitation  of  actions  for,  §§  124-127. 
Limitations  prescribed  in  chapter  on  divorce,  §  127. 
Maintenance,  action  for  without  divorce,  §  137. 
Maintenance,  community  and  separate  property,  order  of  resort  to, 

§  141. 
Maintenance,  decreeing  when  divorce  denied,  §  136. 
Maintenance,  receiver  of  property,  appointing,  "to  secure,  §  140. 
Maintenance,  security  for,  §  140. 
Maintenance,  what  property  resorted  to,  §  141. 
Maintenance,  where  divorce  denied,  §  136. 

Maintenance  without  divorce,  final  judgment  how  enforced,  §  137. 
Maintenance  without  divorce,  granting  alimony,  §  137. 
Maintenance  without  divorce,  orders,  modifjdng  or  revoking,  §  137. 
Marriage,  how  dissolved,  generally,  §  90. 


INDEX.  1087 

DIVORCE.      (Continued.) 

Marriage.     See  Marriage. 

Nullity  of  marriage,  effect  on  legitimacy  of  children,  §  84. 

Presumptions  of  connivance,  collusion,  condonation  or  acquiescence, 
arising  from  lapse  of  time,  §§  125,  126. 

Proof  of  facts  alleged  necessary,  §  130. 

Receiver,  appointment  of,  to  secure  alimony  and  allowances,  §  140. 

Recrimination  defeats,  §  111. 

Recrimination  defined,  §  122. 

Recrimintory  defense,  condonation  of,  §  123. 

Referee,  decree  not  granted  on  any  finding  or  statement  of,  §  130. 

Referee,  proof  of  statements  or  findings  of,  §  130. 

Referee,  proof  to  be  on  question  and  answer,  §  130. 

Remarriage  within  one  year  from  entry  of  interlocutory  decree  for- 
bidden, §  61. 

Residence,  actual,  proof  of  required,  §  129. 

Residence,  length  of,  required  of  plaintiff,  §  128. 

Residence,  presumptions  do  not  apply  in  proof  of,  §  129. 

Separate  and  community  property  subject  to  support  of  children, 
§143. 

Separate  or  community  property,  order  of  resort  to,  §  141. 

Separate  property,  when  not  subject  to  allowance,  §  142. 

Separation,  .agreement  for.     See  Husband  and  Wife. 

Separation  by  consent,  refusal  of  reconciliation  after,  §  101. 

Separation,  consent  to,  revocable,  §  101. 

Separation,  each  spouse  may  have  separate  domicile  on,  §  129. 

Separation,  when  amounts  to  desertion,  §§  100,  101. 

Separation,  when  not  desertion,  §  99. 

Separation.     See   Separation. 

Willful  neglect,  a  ground  for  divorce,  §  92. 

Willful  neglect,  defined,  §  105. 

Willful  neglect,  must  extend  one  year,  §  107. 

DOG.     See  Animals. 

Killing  sheep  by,  §  3341. 

DOMESTIC  NAVIGATION. 

Defined,  §  962. 

Domestic  ship,  what  is,  §  963. 

Vessel,  when  engaged  in,  §  962. 

DOMESTIC  RELATIONS.     See  Divorce;  Guardian  and  Ward;  Husband 
and  Wife;  Parent  and  Child. 
Abduction  forbidden,  §  49. 
Adoption.     See  Adoption. 

Assault   or  wrongful  injury,  protection   against,  §  50. 
Enticement  forbidden,  §  49.     See  Enticement. 
Seduction   forbidden,  §  49. 

DOMICILE. 

Divorce,  proof  of  actual,  required  in,  §  129. 

Husband  selects  unfit,  wife  not  bound,  §  104. 

Husband  to  select,  §§  103,  156. 

In  divorce,  requisites  in  regard  to,  §  128. 

Infant's,  §  213. 

Law  of,  governs  personal   property,  §  946. 

Separation  of  husband  and  wife,  domicile  in  case  of,  §  129. 

Unfit,   selecting,   amounts   to   desertion,  §  104. 

Wife,  domicile  of,  on  suit  for  divorce,  §  129. 


1088  INDEX. 

DOMINANT  TENEMENT.     See  Easements, 

DOUBLE  INSURANCE.     See  Insurance. 

DOUBTFUL  WORDS.     See  Construction. 
In  will,  §  1323. 
In  contract,  §  1654. 

DOWER. 

Not  allowed,  §  173. 

DUEL. 

Damages  for  injuries  inflicted  in,  §§  3347,  3348. 

DUPLICATE. 

Alteration  of,  effect  of,  §  1701. 
Destruction  of,  effect  of,  §  1701. 
Will,  of,  revocation  of,  §  1295. 

DURESS. 

As  ground  for  annulment  of  marriage,  §  82. 

Consent  to  contract  obtained  by,  §§  1567,  1568. 

Consists  in  what,  §  1569. 

Contract   under,   voidable,  §  1567,  1689. 

Marriage  voidable  when  consent  obtained  by  force,  §  58. 

Rescission  for,  §  1689. 

Will  procured   or  revoked  by,  §  1272. 


E 

EARNINGS. 

Child's,  effect  of  abandonment  by  parent,  §  211. 
Illegitimate  unmarried   minor,  of,  §  200. 
Legitimate  unmarried  miror,  of,  §  197. 
Minor  children,  of,  §§  169,  212. 
Vv'ife,  of,  §§  168,   169. 

EASEMENTS. 

Action  by  owner  of  servient  tenement  for  possession,  §  810. 

Action  by  owner  or  occupant  of  dominant  estate,  to  enforce,  §  809. 

Apportionment  of,  on  partition,  §  807. 

Attached  to  land,  enumeration  of,  §  801. 

Attached  to  land,  not,  enumerated,  §  802. 

Dominant  tenement  defined,  §  803. 

Enumeration   of,  §§  801,   802. 

Extent  of,  §  806. 

Extinguished,  how,  §  811.  _ 

Future  owner,  right  of,  to,  §  808. 

Grantable  by  whom,  §  804. 

Held  by   whom,  §  805. 

How  far  usable  by  expectant  owner,  §  808. 

Irrigation,    right    of,  §  552. 

Lateral  and  subjacent  support,  §  832. 

Not  attached  to  land  enumerated,  §  802. 

Partition   of  estate,    apportionment    of,  §  807. 

Servient  tenement,  action  by  owner  of,  for  possession,  §  810. 

Servient  tenement  defined,  §  803. 

Servitude,  owner  of  servient  tenement  cannot  hold,  §  805. 

Transfer  of  property  carries,  §  1104. 

What  pass  with  property   conveyed,  §  1104. 


INDEX.  1089 

EASEMENTS.  (Continuea.) 
Who  cannot  hold,  §  805. 
Who  only  can  create,  §  804. 

EDUCATION.     See  Colleges  and  Seminaries  of  Learning. 

EJECTMENT. 

Damages  for  wrougful  occupation,  measure  of,  §  3334. 
Notice   not   necessary   before    action,  §  793. 
Possession  of  real   property,  how  recovered,  §  3375. 
Tenant  to  give  notice  of,  §  1949. 

ELECTION. 

Accession  to  personalty,  election  of  owner,  §  1032. 
Notice   of   election   as   to   delivery   of   chattel,  §  1756. 

ELECTIONS. 

Corporate.     See   Corporations. 
Day  of  election  a  holiday,  §  7. 

ELECTRIC  CORPORATION.     See  Lighting  Corporation. 

Franchises,  proceedings  prior  to  the  grant  or  sale  of,  §  497. 
Provisions  of  code  relating  to  repealed,  §§  629,  630,  630a,  631,  632. 

ELECTRICITY. 

Appropriation  of  water  for  development  of,  limit  of  time  of,  §  1410. 
Appropriation   of  water  for  generation  of,  time  for  development  of 

works,  §  1416. 
Rights  of  steam  railroad  to  use,  §  465a. 

ELEVATED  RAILWAYS. 

Franchise  for,  majority   of   frontage   to   sign   petition,  §  492. 
Franchise  for,  terms   and   conditions,  §§  492,   498. 
Supervisors  may  grant  franchise  for,  §  492. 

EMANCIPATION. 

Of  child,  §211. 

EMINENT  DOMAIN, 

"Agent  of   the   state,"   who   is,  §  1001. 
Crossings,  railroad,  condemning  land  for,  §  472. 
"Person  in  charge"  of  public  use,  who  is,  §  1001. 
Right  of,  in  general,  §  1001. 
Who   may   exercise   right   of,  §  1001. 

EMPLOYMENT.     See  Master  and  Servant. 

Gratuitous    carriers,   duties    of,  §§  2089,  2090,  2096,  2114. 
Lien  for  services  performed  about  personalty.     See  Service. 
Service  without,  compensation  and  expenses,  §  2078. 
Service  without,  duties  in  case  of,  §  2078. 

ENCUMBRANCE.     See   Chattel  Mortgage;   Encumbrancer;   Lien;   Mort- 
gage. 

Covenant  against,  form  of,  §  1734. 

Covenant   against,   included   in   agreement   to   give   usual   covenants, 
§  1733. 

Damages  for  breach   of  covenant  against,  §  3305. 

Encumbrance  imposed  on  devised  property  not  a  revocation,  §  1302. 

Encumbrance  includes  what,  §  1114. 

Implied  covenants  against,  §  1113. 
Civ.  Code — 69 


1090  INDEX. 

ENCUMBRANCER.     See  Encumbrance. 
Encumbrancer  defined,  §  1114. 
Grant  is  a  revocation  of  a  power  to  revoke  or  modify  in  favor  of, 

when,  §  1229. 
Grant,  how  far  conclusive  as  to,  §  1107. 
Instruments,  when   void    against,  §  1227. 
Instruments,  when    not    void    against,  §  122.S. 
Lien  of  seller  or  buyer  not  valid  against,  §  3048. 
Measure  of   damages  for  breach   of   covenant   against   encumbrance, 

§  3305. 
Mortgage,   effect  of,   against   subsequent,  §  2957. 
Obligation  respecting  real  property  not  enforced  against  subsequent, 

§  3395. 
Recorded  instruments  as  notice  to  although  defective,  curative  act, 

§  1207. 
Resulting   trust   not   to   prejudice,  §  856. 
Rights  of  encumbrancer  under  one  claiming  by  succession,  effect  of 

will  on,  §  1364. 
Transfers  void  against,  §  3440. 

ENDOWMENT    INSURANCE.     See    Mutual    Insurance    on    Assessment 
Plan. 

ENEMY,  PUBLIC,     See  War. 
Cannot  be  insured,  §  2540. 

Carrier  liable  for  acts  of,  if  negligent,  §  2195. 
Carrier  not  liable  for  damages  caused  by,  §  2194. 
Performance    prevente^d    by,  §  1511. 

ENROLLMENT. 

Of  vessels  governed  by  federal  laws,  §  966. 

ENTICEMENT. 

Apprentice,   of,   a  misdemeanor,  §  275., 
Child  from  guardian   forbidden,  §  49. 
Child  from  parent,  forbidden,  §  49. 
Of  wife,  forbidden,  §  49. 

ENTRY. 

Right  of,  may  be  transferred,  §  1046. 

EQUAL  RIGHTS.     See  Civil  Rights. 

EQUITABLE  CONVERSION. 

Under  will,  §  1338. 

EQUITY.     See   Cancellation;    Injunctions;   Preventive   Relief;   Reforma- 
tion; Rescission;   Specific  Performance;   Specific  Relief. 
Maxims.     See  Maxims. 

ESCHEAT. 

Intestate's  property   escheats,  when,  §  1386. 

Proceedings  where  succession  to  estate  not  claimed,  §§"  1405,  1406. 
Property'  escheated,  subject  to  charges  and  trusts,  §  1407. 
When    occurs,  §  1406. 

ESCROW. 

Delivery  in,  §  1057. 
Definition  of,  §  1057. 

Right  to   receive   znoney  or  propert.y  in,   without   supervision   of  su- 
perintendent of  banks.     Appendix,  tit.  "Banking,"  §  101. 


INDEX.  1091 

ESTATES.     See   Estates   of   Decedents;   Property;   Real   Property;    Suc- 
cession;  Wills. 
Conveyance  by  heir  valid  unless  will  proved  within  four  years,  §  1364. 
Intestates,   chargeable  with   debts,  §  1358. 
Life,  for.     See   Estates   for   Life. 
Owner  of  rights   of,  in  use   of   land,  §  818. 

Eemainder  for  life  or  term  of  years  must  be  to  one  in  esse,  §  777. 
Rent  due  upon  lease  for  life,  how  recovered,  §  824. 
Successive,  cannot  be  limited  except  to  persons  in  being,  §  774. 
What  interests  in  property  are,  §  701. 
Will,  at.     See  Estates  at  Will. 
Years,  for.     See  Estates  for  Years. 

ESTATES  AT  WILL.     See  Landlord  and  Tenant. 
Are  chattel  interests,  §  765. 
Not  subject  to  execution,  §  765. 
Tenant  may  occupy  buildings,  §  819. 
Tenant  may  take  annual  products,  §  819. 
Tenant  may  work    open    mines    or    quarries,  §  819. 
Tenant's  rights  governed  by  instrument  creating,  §  820. 
How   may  be   terminated,  §  789. 
Termination    of.     See    Landlord    and   Tenant, 

ESTATES  FOR  LIFE. 

Duty  of  owner  to   pay  taxes,   charges   and   assessments,  §  840. 

Duty  of  owner  to  repair,  §  840. 

Freeholds,  are,  §  765. 

Freehold,  estate  for  life  of  third  person  is,  §  766. 

Grant  by  owner  of,  of  greater  estate  than  he  has,  effect  of,  §  1108. 

Holding  over  after  termination  of,  damages  for,  §  3335. 

Injury  to  inheritance,  life  tenant  must  not  do,  §  818. 

Legatee  for  life,  inventory  by  and  what  to  contain,  §  1365. 

Limited  as  remainder  upon  term  of  years,  to  be  to  one  in  being,  §  777. 

May  be  created  in  term  of  vears  and- remainder  limited  thereon, 
'  §  773. 

Rent  dependent  upon  life  recoverable  after  death,  §  825. 

Rent  due  on,  how  recovered,  §  824. 

Right   of  life   tenant   to    Lise   land,  §  818. 

Successive,  cannot  be  limited  except  to  persons  in  being  at  creation, 
§774. 

Successive,  extending  beyond  lives  in  being,  taking  effect  of  re- 
mainder   on, §  774. 

Successive,  remainder  on,  to  be  in  fee,  §  775. 

ESTATES  FOR  YEARS. 

Are  chattels  real,  §  765. 

Contingent  remainder  on,  to  vest  during  lives  in  being,  §  776. 
Estate  for  life  limited  as  remainder  on,  to  be  to  one  in  esse,  §  777. 
Estate  for  life  may   be   created  in,   and   remainder  limited   thereon, 

§  773. 
Grant  by  owner  of,  of  greater  estate  than  he  has,  effect  of,  §  1108. 
Limitation  on  power  of  suspension,  right  of,  §  770. 
May  commence  at  future  day,  §  773. 
Remainder  in  to  be  for  whole  residue  of  term,  §  775. 
Remainder  of  a  freehold  or  chattel  real,  may  be  created  on  term  of 

years,  §  773. 
Tenant  may  occupy  buildings,  §  819. 
Tenant  may  take  annual  products,  §  819. 
Tenant  may  work   mines  and  quarries  that  are  open,  §  819. 
Tenant's  rights  governed  by  instrument  creating,  §  820. 


1092  INDEX. 

ESTATES  OF  DECEDENTS,  See  Executors  and  Administrators;  Sue- 
cession;  Wills. 

All  property  of  intestate  chargeable  with  debts,  §  1358. 

Beneficiaries'  liability  for  testator's  obligations,  §  1377. 

Bona  fide  purchaser  from  one  claiming  by  succession,  effect  of  will, 
§  1364. 

Community  property  on  husband's  death  subject  to  debts  and  family 
allowance,  §  1402. 

Deposit  of  assets  in  trust  company  and  reduction  of  bond.  Appendix, 
tit.  "Banking,"  §  93. 

Deposit  of  money  in  trust  company  or  bank,  and  discharge  from  lia- 
bility.    Appendix,  tit.  "Banking,"  §§  51,  91. 

Deposits-  under  $1,000,  collecting  without  administration.  Appendix, 
tit.  "Banking,"  §  17. 

Expenses  of  administration  and  allowances  to  familj-  to  be  first 
paid,  §  1359. 

Heir's  conveyance  good  unless  will  proved  within  four  years,  §  1364. 

Homestead  selected  in  lifetime  of  spouses,  disposition  of  on  death, 
§  1265. 

Mortgage  participation  certificates  and  securities  guaranteed  bj'' 
policies  of  mortgage  insurance  as  legal  investments  for  funds  of, 
§  453ff. 

Order  of  resort  for  payment  of  debts,  §  1359. 

Order  of  resort  for  payment  of  legacies,  §§  1360,  1361. 

Sale  of  property  specifically  bequeathed   or   devised,  §  1363. 

Shares  of  stock  of  decedent,  how  represented,  §  313. 

Succession  to.     See  Succession. 

Successors  liable   for  decedent's  obligations,  §  1408. 

ESTATES  OF  FREEHOLD. 

Defined,  §  765. 

ESTATES-TAIL. 

Abolished,§  763. 

ESTOPPEL. 

After-accjuired  title  inures  to  mortgage,  §  2930. 

Conveyance   passes  after-acquired  title,  §  1106. 

Failure  to  forbid  act  done  on  one's  behalf.  §  3519. 

Real  owner  cannot  defeat  pledge  by  apparent  owner,  §  2991. 

Special  partnership,  who  estopped  to  question  existence  of,  §  2503. 

ESTRAY. 

Finder  of  property  in  general,  §§  1864-1872. 
Lost  property.     See  Finder;  Lost  Property. 

EVIDENCE,     See  Witnesses. 

Affidavit  of  annual  work  on  mining  claim  or  certified  copy  of,  as  evi- 
dence, §  1426m. 

Affidavits  of  publication  of  partnership  names  as,  §  2471. 

Affidavits.     See  Affidavits. 

Articles  of  incorporation  as.  §§  653o,  653v. 

Burden  of  proof  to  show  want  of  consideration,  §  1615. 

Certificate  of  change  of  names  in  partnership,  §  2471. 

Certificate  of     proof  of  instrument,  what  to   state,  §  1200. 

Certificate  of  restoration  of  lunatic  raises  presumption  of  capacity, 
§40. 

Certificate  of  ship-master  to  exertions  to  save  vessel,  §  2059. 

Certified  copy  by  secretary  of  corporation,  §  348. 

Certified  copy  of  articles  of  incorporation  prima  facie,  §  297. 

Certified  copy  of  record  of  instrument  defectively  executed,  §  1207. 


INDEX.  1093 

EVIDENCE.     (Continued.) 

Certified  copy  of  instruments  required  to  he  recorded  under  mining 
law,  admissible,  §  142Gq. 

Condonation,  evidence  of,  §  118. 

Divorce,  not  on  uncorroborated,  §  130. 

Execution  of  instruments,  proof  of,  when  not  acknowledged,  §  1195. 

Handwriting  proved,  how,  §§  1198,  1199. 

Instrument,  proof  of  execution  oii,by  subscribing  witnesses,  §§  1195- 
1197. 

Instruments,  how  proved  when  not  acknowledged,  §  1195.  See  Ac- 
knowledgments. 

Insurance,   of   loss,  §  2634. 

Inventory  of  wife's  separate  property,  evidence  of  title,  §  166. 

Marriage,  how  proved,  §  57. 

Notice  to  delinquent  co-owner  of  mine  and  affidavit  of,  as  evidence 
of  delinquency,  §  1426o. 

Oral  stipulations,  etc.,  superseded  by  writing,  §  1625. 

Presumption  of  revocation  of  will  from  marriage  and  birth  of  issue, 
evidence  to  rebut,  §§  1298,  1299. 

Presumptions.     See  Presumptions. 

Proof  of  instruments.     See  Acknowledgments. 

Eecord  of  inventory  of  wife's  property,  §  166. 

Eeeord  of  mining  location  to  be  received  in  evidence,  §  1426p. 

Eecords,  certified  coj^ies  of  instruments  defectively  executed  as  evi- 
dence, §  1207. 

Eegister  of  partnership  names  as,  §  2471. 

Subscribing  witnesses,  manner  of  proving  instrument  bv,  §§  1196- 
1199. 

Wills,  affecting.     See  Wills,  VI. 

EXCAVATION. 

Eight  of,  by  lateral  owner,  §  832. 

EXCEPTIONS. 

General  authority  of  agent,  exceptions  to,  §  2322. 

EXCHANGE. 

Bill  of.     See  Negotiable  Instruments. 

Defined,  §  1804. 

Deposit  for,  §§  1813,  1818. 

Deposit  for,  effect  of,  §  1878. 

Form  of  contract,  §  1805. 

Loan  for,  §§  1902-1906. 

Loan  for.     See  Loan. 

Parties  have  rights   of  buyers  and   sellers,  §  1806. 

Personalty  passes  by,  when,  §  1140. 

Personalty  passes  under  executory  agreement,  when,  §  1141. 

Sales,  provisions  of  code  relating  to,  apply  to,  §  1806. 

Separation  not  necessary  to  passing  of  title,  when,  §  1140. 

Statute  of  frauds,  how  affects,  §  1805. 

Title,  when  only  transferred  by  executory  agreement  of,  §  1142. 

Warranty  on  exchange  of  money,  §  1807. 

Writing,  necessity  of,  in  contract  of,  §  1805. 

EXECUTION. 

Alimony  and  counsel  fees,  execution  for,  §  137. 

Estates  at  will  not  subject  to  sale  under,  §  705. 

Exemption  of  estates  at  will,  §  765. 

Exemption  of  money   from   mutual   assessment   company,  §  453k. 

Exemption  of  shares  in  building  and  loan  association,  §  643. 


1094  INDEX. 

EXECUTION.     (Continued.) 

Franchise  may  be  sold  under,  §  388. 

Franchise,  sale  of,  duties  and  liabilities  of  corporation  after,  §  391. 

Franchise,  sale  of,  recovery  by  purchaser  as  a  bar,  §  390. 

Franchise,  sale  of,  redemption  of,  §  392. 

Franchise,  sale  of,  rights  and  duties  of  purchaser,  §  389. 

Franchise,  sale  of,  where  made,  §  393. 

Homestead     not  subject  to,  generally,  §  1240. 

Homestead  subject  to,  when,  §  1241. 

Homesteads,  against.     See  Homesteads. 

Homesteads,  exemption  of.     See  Homesteads. 

Homestead,  appraisement.     See  Homesteads. 

Lien  of  officer  levying  writ,  §  30-57. 

Mortgaged  personalty,  against  and  proceedings  on,  §§  2908-2970. 

Mortgaged  property,  how  levied  on,  §  2969. 

Mortgaged  propertv,  sale  under  attachment  and  disposition  of  pro- 
ceeds, §§  2968,  2970. 

Principal  bound  by  incomplete  execution  of  authority,  §  2331. 

Principal,  whether  bound  by,  in  excess  of  authorty,  §  2333. 

Proof  of,  by  subscribing  witness,  §§  1195-1197. 

Proof  of  execution  of  instrument,  how  made  when  not  acknowledged, 
§  119-5..    See   Acknowledgments. 

Proof  of.     See  Acknowledgments. 

Redemption  of  franchise,  §  392. 

Shares  in  building  and  loan  association  up  to  $1,000  are  exempt  fronij 
§643. 

Warranty  on  judicial   sale,  §  1777. 

EXECUTORS  AND   ADMINISTRATORS.     See  "Estates   and  Decedents; 

Wills. 

Apprentice  or  clerk,  power  of  to  bind  child  as,  §§  265,  267. 

Authority  given  to,  to  appoint  executor  is  void,  §  1372, 

Authority  of,  before  qualification,  §  1373. 

Chose  in  action,  when  passes  to,  §  954. 

Corporation,  act  authorizing  to  act  as.    Appendix,  tit.  "Corporations." 

Corporation  acting  as,  minimum  capital  to  be  paid  in  and  affidavit  as 
to, §  290a. 

Deposit  in  bank  or  trust  company  and  discharge  from  liability.  Ap- 
pendix, tit.  "Banking,"  §§  51,  91, 

Deposit  in  trust  company  and  reduction  of  bonds.  Appendix,  tit. 
"Banking,"  §  93. 

Devise,  specific,  may  be  authorized  to  sell,  §  1363. 

Directors  of  banks,  eligibility  of  executors  or  administrators.  Ap- 
pendix, tit.  "Banking,"  §  10. 

Disaffirmance  by,  of  infant's  contract,  §  35. 

Executor  according  to  the  tenor  of  will,  where  not  named,  §  1371. 

Executor  not  to  act  until  qualified,  §  1373. 

Expense  of  administration,  order  of  payment,  §  1359. 

Foreign,  satisfaction  of  mortgage  on  record  by,  §  2939^/4. 

Legacy,  specific,  may  be  authorized  to  sell,  §  1363. 

Person  intended  as  executor  but  not  named,  appointment  of,  §  1371. 

Power  to  bind  minor  as  apprentice,  §  265. 

Property  specifically  bequeathed,  may  be  authorized  to  sell.  §  1363, 

Proxies,  may  give,  §  321b, 

Shares  of  stock  of  decedent,  executor  represents,  §  313, 

Qualification,  may  do  what   acts  before,  §  1373. 

Qualification,  not  to  act  till,  §  1373. 

Eights  of  one  who  was  intended  to  be  appointed,  §  1371. 

Sale  of  property  specifically  bequeathed  or  devised,  §  1363. 


INDEX.  1095 

EXECUTORS  AND  ADMINISTRATORS.      (Contiuued.) 
Specific  bequest,   may  be   authorized  to   sell,  §  1363. 
Stock  of  decedent,  executor  to  represent,  §  313. 

Wages  of  deceased  seamen,  personal  representatives  entitled  to, 
§2062. 

EXECUTORY. 

Agreement  for  sale  of  real  property,  effect  of,  §  1731. 
Agreement  transfers  title,  when,  §  1141. 
Consideration  may  be,  §  1609. 
Consideration  ascertained  how,  §  1611. 
Consideration     need  not  be  stated,  §  1610. 
Contract,  covenants  what  required  by,  §  1733. 
Contract  of  marriage  to  be  in  writing,  §  1624. 
Contract  defined,  §  1661. 
Grant  on  condition  precedent,  §  1110. 

EXEMPLARY  DAMAG-ES.     See  Damages. 

EXEMPTIONS. 

Assignment  for  creditors,  exemjit  propertj'  does  not  pass,  §  3470. 
Homestead,  of,  §§  1240,1241. 
Homestead  sale,  of  proceeds  of,  §  1257. 

Moneys  arising  under  mutual  assessment  contract,  §  453k. 
Shares  in  building  and  loan  association  up  to  $1,000  are  exempt,  §  643. 
Transfer  of  propertj^,  provisions  as  to  notice  on  assignment  of  prop- 
erty do  not  apply,  §  3440. 

EXONERATION.     See  Suretyship. 

Carrier,  of  on  delivery  of  bill  of  lading,  §  2131. 

Gratuitous  pledge-holder,  of,  §  2995. 

Guarantors,  of,  §  2819. 

Innkeeper,  of,  §  1860. 

Lender,  of  from  liability,  §  1892. 

Owner,  of,  from  claim  of  finder,  §  1871. 

Partner,  of,  on  renunciation  of  future  profits,  §  2417. 

Ship-master,  of,  on  abandonment,  §  2041. 

Surety,  of,  §§  2840,  2845. 

EXPECTANCY. 

Insurable  interest  in,  §§  2531,  2547,  2549. 
Mere  expectancy  is  not  an  interest,  §  700. 

EXPECTANT  ESTATES.     See  Future  Interests. 

EXPRESS  COMPANIES. 

Letters  of  credit,  license  from  superintendent  of  banks  necessary 
before  issuing.     Appendix,  tit.  "Banking,"  §  13. 

Letters  of  credit  license  to  issue,  fee  for.  Appendix,  tit.  "Banking," 
§13. 

Letters  of  credit,  right  to  issue.     Appendix,  tit.  "Banking,"  §  13. 

EXPRESS  CONTRACTS.     See  Contracts,  I. 

EXTENSION. 

Of  existence  of  corporations,  §§  401,  402. 
Of  time  of  sale  of  stock,  §  345. 

EXTREME   CRUELTY.     See  Divorce. 


1096  INDEX. 

-1 
F 

FACT. 

Actual  fraud,  question  of,  §  1574:. 
Concealment  makes  eoudonation  void,  §120. 
Fraudulent  intent,  question  of,  §  3442. 
Mistake  defined,  §  1577. 
Mistake  may  be  of  law  or  fact,  §  1576. 
Mistake  of  foreign  law,  a  mistake  of,  §  1579. 
Mistake.     See  Mistake. 

FACTOR. 

Actual  autborit}'  of,  §  2368. 

Agent,  factor  as,  §  2367. 

Agents.     See  Agency. 

Authority,  extent  of,  §  2368. 

Autliority  in  dealing  with  persons  without  notice  of  authority,  §  2369. 

Authority  to  receive  payment,  §  2026. 

Barter  no  power  to.  §  2368. 

Consignments.     See  Consignment. 

Credit,  cannot  extend,  §  2028. 

Credit,  power  to  sell  on,  §§  2028,  2368. 

Del  credere  commission,  agreement  need  not  be  written,  §  2794. 

Del  credere  commission,  liability  under,  §§  2029,  2030. 

Delegation  of  authority  by,  right  of,  §  2368. 

Guarantv  commission,  factor    selling    under    cannot    relieve    himself 

from  liability,  §  2030. 
Guaranty  commission,  liability  on,  §  2029. 
Guaranty'  of  sales  by,  need  not  be  written,  §  2794. 
Instructions,  duty  to  obey,  §  2027. 
Insurance  by,  §  2368. 

Liability,  cannot  relieve  himself  from,  §  2030. 
Lien,  has,  §  3053. 

Lien  is  dependent  on  possession,  §  3053. 
Mortgage,  cannot  make,  §  2368. 
Obedience  required  from,  §  2027. 
Ostensible  authority  of,  §  2369. 
Pledge,  no  nower  to,  2368. 
Possession  or  control  of  property,  §  2026. 
Sale  by,  for  reimbursement,  right  of,  §  2027. 
Sale  by,  on  credit,  §§  2028,  2368. 

FAIR. 

Agricultural  fair  corporations,  §§  620-622. 

FALSE  REPRESENTATIONS.     See  Deceit;  Fraud;  Insurance. 
FARE.     See  Carriers;  Railroads. 
FATHER.     See  Parent  and  Child. 

FEDERAL  COURTS. 

Proceedings  in  not  stayed,  §  3423. 

FEES. 

Affidavit  of  annual  work  on  mining  claim,  fee  for  filing,  §  1426n. 
Apprenticing  homeless  minor,  no  fee  to  be  charged,  §  268. 
Building  and  loan  associations,  what  fees  only  may  be  charged  by, 
§  634,  subd.  g. 


1 


INDEX.  1097 

FEES.     (Continued.) 

Certifying  and  filing  certificate  of  extension  of  corporate  existence, 
for,  §  401. 

Filing  articles  of  consolidation  of  business  associations,  for,  §  6531. 

Foreign  building  and  loan  corporation,  fees  required  of,  §  646. 

Licenses  for  issuing  letters  of  credit,  fee  for.  Appendix,  tit.  "Bank- 
ing," §  10. 

Foreign  corporations,  fees  required  of,  §  409. 

Eecorder's,  §  1165. 

Recording  of  mill  site  claim,  for,  §  1426k. 

Recording  of  notice  of  mining  claim,  for,  §§  1426b,  1426d,  1426g. 

Recording  of  notice  to  delinquent  co-owner  of  mine,  for,  §  1426o. 

FEE  SIMPLE. 

Defined,  §  762. 

Limiting  upon  a  fee,  §  773. 

Owner  in,  surface  and  everything  above  and  below  belongs  to,  §  829. 

Title,-  when  presumed  to  pass,  §  1105. 

What  estates  are  fees,  §  762. 

Word  "heirs"  not  necessary  to  pass,  §  1329. 

W^ords  of  inheritance  unnecessary,  §§  1072,  1329. 

Words  of  succession  unnecessary  to  pass  fee,  §  1072. 

FEE-TAIL. 

Abolished,  §  763. 

FELONY. 

Banking  law,  offenses  against.     See  Banks  and  Banking,  II. 
Building  and   loan   association,  violation   of  statute   as  to   loans   by 

officer  or  director,  §  637. 
Divorce,  conviction  of,  ground  for,  §  92. 
Divorce  for,  limitation  of  action  of,  §  124. 

Illegal  loans  by  officer  or  director  of  building  and  loan  society,  §  637. 
President  or  manager  of  savings  corporation  consenting  to  loan  on 

mining  stocks,  §  581. 
Warehouseman,  violation  of  law  by,  §  1858f. 
Building  and  loan  associations,  illegal  loans  by  officers  or  directors, 

§637. 

FEMALE. 

Of  fifteen  may  marry,  §  56. 
Under  eighteen,  minor,  §  25. 

FEME  COVERT.     See  Husband  and  Wife;  Married  Woman. 

FEMININE  GENDER. 

Included  in  masculine,  §  14. 

FENCES.     See  Real  Property. 

Coterminous  owner  bound  to  maintain,  §  841. 
Division,  easement  of  maintenance,  §  801. 
Duty  of  life  tenant  to  repair,  §  840. 
Easement,  an,  §801. 

Railroad's   duty  and   liability   respecting,  §  485. 
Tenant  for  life  to  repair,  §  840. 

FERRY.     See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 
Rights  and  duty  of  wagon-road  corporations  respecting,  §  514. 
Statutes    governing   ferry    corporations   apply   where    owned    by   in- 
dividual, §  531. 


1098  INDEX. 

FICTITIOUS. 

Name  in  partnership.     See  Partnership. 

Payee,  negotiable  instrument  payable  to,  is  payable  to  bearer,  §  3103. 

FILING. 

Affidavits  of  sale  of  delinquent  stock,  §  348. 

Articles  of  incorporation,  §  296.     See  Corporations,  IV. 

Articles,  duty  of  secretary  of  state,  §  296. 

Articles,  prerequisite  to,  §§  293,  296. 

Inventory  of  wife's  separate  property,  §§  165,  166. 

FINDER.     See  Lost  Property. 

Abandoned  property,  statute  as  to  lost  property  does  not  applv  to, 

§  1872. 
Animals,  duty   of,  §  1865. 
Claimant  to  prove  ownership,  §  1866. 
Compensation  for  expenses,  §  1867. 
Depositary  for  hire,  liable  as,  §  1864. 

Exoneration  of  owner  by  surrender  of  property  to,  §  1871. 
Lists,  publication  of,  by,  §  1871. 
May  put  thing  found  on  storage,  §  1868. 
Not  bound  to  take  charge,  §  1864. 

Notice  to  owner,  damages  for  failure  to  give.  §  1865. 
Not  to  charge  except  for  expenses,  §  1S65. 
Obligations  of,  if  he  takes  charge,  §  1864. 
Penalty   for   failure   to   comply   with   statute    or   surrender   property, 

§  1871. 
Eeward,  not  entitled  to,  if  owner  not  notified.  §  1865. 
Eeward  of,  §  1867. 
Sale  of  thing  found,  §§  1869,  1870. 
Surrender  of  thing  found  to  owner,  §  1871. 
To   notify   owner,  §  1865. 
To  restore  property,  §  1865. 

Unknown  owner,  appraisers,  appointment  and  duties,  §  1865. 
UnknoM-n  owner,  filing  affidavit  with  justice,  §  1865. 
Unknown  owner,  lists,  preparation,  delivery,   and  filing  of,  §  1865. 

FIRE.     See  Fire  Patrol. 

Burned  records  of  documents.     See  Burnt  Records  and  Documents. 

Deposit,  involuntary,  in  case  of,  §  1815. 

Destruction  of  articles  of  incorporation  by,  effect   of   copies.  §  297a. 

Destruction  of  articles  of  incorporation  by,  filing  copies,  §  297a 

Destruction  of  corporate  records,  restoration  of.  See  Corporations, 
XL 

Destruction  of  negotiable  instrument,  action  to  re-establish,  indem- 
nity, §  3415. 

Destruction  of  private  documents,  action  to  re-establish,  §  3415. 

Marine  carrier  not  liable  for  loss  by,  §  2197. 

Treble  damages  for  negligently  firing  woods,  §  3346a. 

Treble  damages  for  setting,  §  3346a. 

Warehousemen,  when  only  liable  for,  §  18o8e. 

Water  company  to  furnish  water  free  in  case  of,  §  549. 

Writings  destroyed  by,  re-establishment  and  re-execution  of,  §  3415. 

FIRE  INSURANCE.     See  Insurance. 

FIRE  INSURANCE  COMPANIES.     See  Insurance  Corporations. 

FIRE  PATROL. 

Abandonment  of  building  not  justified  by  acts  of,  §  453a. 
Assessment  to  maintain,  how  apportioned,  §  453c. 


INDEX.  1099 

FIRE  PATKOL      (Continued.) 

Assessment  to  maintain,  how  coilected,  §  453c. 

Duties  and  powers  of,  §  453a. 

Expenses  of,  limit  upon,  §  453e. 

Fire   insurance   companies   may   maintain,  §  453a. 

Injuries  to  animals  or  property  of,  punishment  of,  §  453b. 

Laws  and  ordinances  protecting  fire  department,  apply  to,  §  453b. 

Maintenance  of,  statement  of  premiums,  corporations  to  file,  §  453e. 

Maintenance  of,  statement  of  premiums,  demand  for,  §  453c. 

Maintenance  of,  statement  of  premiums,  failure  to  file,  penalty  and 

collection,  §  453c. 
Meeting  of  corporations  interested  to  be  held  yearly,  §  453c. 
Meeting  of  corporations,  majority  to  decide  all  questions,  §  453e. 
Meeting  of  corporations,  right   to   vote,  §  453c. 
Obstruction   of,  on  way  to  fire,  punishment   of,  §  453b. 
Power  to  enter  buildings  and  take  property,  §  453a. 
Eegular  fire  department  not  to  be  interfered  with,  §  453a. 
Eight  of  way  while  running  to  fires,  §  453b. 
Underwriters  may  maintain,  §  453a. 

FISH. 

Eight  to  take,  §§  801,  802. 

FISHERIES. 

Ships  are  engaged  in  foreign  or  domestic  navigation  or  fisheries, 
§962. 

FIXTURES. 

Attachments  to  mines,  what  are  fixtures,  §  661. 
In  general,  §  1013. 
Mines,  attached  to,  what  are,  §  661. 
Mortgage  a  lien  on,  §  2926. 
Ownership  of,  §  1013. 

Property  affixed  to  another's  land  belongs  to  owner  of  land,  §  1013. 
Tenant,  right  of  to  remove,  §  1019. 
■    Thing  when  deemed  to  be  affixed,  §  660. 
What  are,  §  660. 

FLUME. 

Owners  in  common,  action    for   contribution,   form    of,   parties,   fees, 

,  costs,  §  843. 
Owners  in  common,  liability  for  maintaining  and  repairing,  and  for 

distributing  water,  §  842. 
Owners  in  common  of,  liability,  how  enforced,  §  843. 
Water   company's  duty  respecting,  §  551. 

FORCE.     See  Duress. 

FORECLOSURE. 

Of  mortgages,  §  2967. 

Of  right  to  redeem  pledge,  §  3011. 

Eight  of  redemption,  foreclosure  of,  §  2931. 

FOREIGN. 

Acknowledgments.     See  Acknowledgments. 

Assessment  insurance  companies.  See  Mutual,  Life,  Health,  Ac- 
cident, and  Annuity  Insurance  on  Assessment  Plan. 

Banking  corporation,  superintendent  of  banks  as  agent  for  service 
of  process.     Appendix,  tit.  "Banking,"  §  7. 

Banking  corporation,  requirements  of.     Appendix,  tit.  "Banking,"  §  7. 

Banking  corporations,  oaths  of  resident  managers  or  agents.  Appen- 
dix, tit.  "Banking,"  §  11. 


1100  INDEX. 

FOREIGN.      (Continued.) 

Bill,  acceptance  and  payment  for  honor.  §§  3203,  3233. 

Bill,  damages  for  dishonor  of,  §§  3234-3238,  3303. 

Bill,  definition  of,  §  3224. 

Bill,  notice  of  dishonor,  protest  necessary,  §  3225. 

Bill,  payment  for  honor,  declaring  for  whose  honor  payment  made. 

§  3233. 
Bill,  payment  for  honor,  what  necessary  to  reimbusement  of  payer, 

§  3233. 
Bill,  protest,  by  whom  made,  §  3226. 
Bill,  protest,  delay  in,  when   excused,  §  3230. 
Bill,  protest,  how  made,  §  3227. 
Bill,  protest  necessary,  §  3225. 
Bill,  protest,     notice  of,  how  given,  §  3231. 
Bill,  protest,  time  for  making,  §  3229. 
Bill,  protest,  when  excused,  §  3230. 
Bill,  protest,  where  made,  §  3228. 
Bill,  waiver  of  protest  and  effect  of,  §  3232. 

Bill,  waiver  of  protest  does  not  waive  presentment  and  notice,  §  3160. 
Bill,  waiver  of  protest,  effect    of,    where   indorser    repuires    protest, 

§  3232. 
Bill,  waiver  of  protest,  notice  of  dishonor  in   case   of,  §  3232. 
Building  and  loan  associations,  deposit  by,  §  645. 
Corporation,  liability  of  stockholders,  §  322. 
Corporations.     See  Corporations,  XVIII. 
Country,  sale  by  corporation  of  property,  franchises,  or  concessions 

in, §  364. 
Executor,  discharge  of  mortgage  by,  §  293&%. 
Insurance   corporations.     See  Insurance   Corporations. 
Law,  mistake  of,  is  mistake  of  fact,  §  1579. 
Marriage,  validity  of,  §  63. 

Mutual  insurance  company,  cash  assets,  required,  §§  419,  420. 
Navigation  defined,  §  962. 
Partnership,  under  fictitious  name,  need  not  file  or  publish  certificate. 

§2467. 
Eailroad  corporations,  right  to  lease  or  use  road  in  common,  §  473a. 
Ship,  defined,  §  963. 
Will,  validity  of,  §  1285. 

FOREIGN  ACKNOWLEDGMENTS.     See  Acknowledgments. 

FOREIGN  BANKS.     Appendix,  tit.  "Banking,"  II. 

FOREIGN  BILLS.     See  Foreign. 

FOREIGN  BUILDING  AND  LOAN  ASSOCIATIONS.     See  Building  and 

Loan    Associations. 

FOREIGN  CORPORATIONS.     See  Corporations,  XVIII;  Foreign. 
FOREIGNERS.     See  Alien. 

FOREIGN  EXECUTORS. 

Discharge  of  mortgage  of  record  by,  §  29391/^. 

FOREIGN  GUARDIAN. 

Satisfaction   of   mortgage   of   record   by,  §  293914- 

FOREIGN  INSURANCE  CORPORATIONS.    See  Insurance  Corporations. 

FOREIGN  WILLS. 

Validity  of  in  this  state,  §  1285.     See  Wills,  V. 


INDEX. 


1101 


FORFEITURE. 

Conditions  involving,  strictly  construed,  §  1-442. 

Contract  for,  of  property  subject  to  lien,  void,  §  28S9. 

Conveyance  in  excess  of  title  does  not  work,  §  1108. 

Grantee's  or  devisee's,  remedy  for,  §  821. 

Homestead  corporations,  for  speculation,  §  562. 

Preventive  relief,  not  granted  to  enforce,  §  3369. 

Letter  may  forfeit  hiring  when,  §§  1930,   1931. 

Eailroad,  powers  of,  forfeiture  for  non-user,  §  468. 

Relief  from,  right  to,  on  making  full  compensation,  §  3275. 

Remedies  of  grantee  or  devisee  of  rent  or  reversion  on,  §  821. 

Servitude,  for  non-user,  §  811. 

Specific  or  preventive  relief  not  granted  to  enforce,  §  3369. 

Street-railroad,   by,    for   failure   to    commence    or   complete    road    in 

time,  §  502. 
Wages  of  seamen,  grounds  for,  §  2063. 
Water  rights,  forfeiture  for  failure  to  comply  with  statute,  §§  1419, 

1420. 

FORM. 

Acknowledgment  by  attorney  in  fact,  of,  §  1192. 

Acknowledgment  by  corporation,  §  1190. 

Acknowledgment,  generally,  of,  §  1189. 

Certificate  of  acknowledgment  by  corporation,  §  1190. 

Certificate  of  acknowledgment  by  married  woman,  §  1191. 

Chattel  mortgages,  §  2956. 

Covenants  in  execution  of  executory  contract,  §  1734. 

Dishonor,  form  of,  §  3143. 

Grant,  of,  §  1092. 

Marriage,  of  solemnizing,  §  71. 

Mortgage,  of,  §  2948. 

Notice  of  assessment,  §  335. 

Notice  of  delinquency,  §  337. 

Notice  of  dishonor,  §  3143. 

Notice  of  tenant  at  will  to  quit,  §  789. 

Personal  property  mortgage,  §  2956. 

Protest,  §  3227. 

Realty,  mortgage  of,  §  2948. 

Warranty  in  policy  of  insurance,  §  2604. 

FRANCHISE. 

Corporate,  sale  of,  under  execution,  §  388. 

Elevated  or  underground  road,  power  to  grant,  §  492. 

Execution,  purchaser  of,  rights  and  duties  of,  §§  389,  390. 

Execution  sale  of,  place,  §  393. 

Extension  of  corporate  existence  does  not  affect,  §  401. 

Forfeiture  of  railroad,  ground  of,  §  468. 

Ordinances  granting,  acts,  validating.     Appendix,  tit.  "Railroads." 

Purchaser,  recovery  by,  as  a  bar,  §  390. 

Railroad,  power  to  grant,  §  493. 

Railroad,  right  to  purchase  franchises  of  other  roads,  §§  465,  494. 

Railroad,  sale  of,  and  conditions  of  sale,  statute  relating  to.  Ap- 
pendix, tit.  "Railroads." 

Redemption,  from  sale,  §  392. 

Sale  of  franchises  in  foreign  country,  §  364. 

Telegraph  or  telephone,  transfer  of,  §  540. 

Time  within  which  street-railway  franchises  may  be  sold,  act  limit- 
ing.    Appendix,  tit.  "Railroads." 

Transfer  of,   by  corporation.     See  Corporations,  XTT. 


1102  INDEX. 

TRATERNAL  CORPORATIONS.     See  Religious,  Social    and  Benevolent 

Corporations. 
Mutual    life,    etc.,    insurance    corporations,  §§  437-4.52.     See    Mutual 
Benefit   and   Life  Associations;    Mutual   Life,   Health,   Accident 
and  Annuity  Insurance  on  Assessment  Plan. 

FRATERNAL  SOCIETIES. 

Exempt  from  insurance  laws,  §  451. 

Not   governed   by  laws   relating  to   mutual    assessment   corporations, 

§  453p. 
Not  insurance  corporations,  §  451. 

FRAUD. 

Actual,  a  question  of  fact,  §§  1574,  3442. 

Actual  or  constructive,  is,  §  1571. 

Actual,  what  constitutes,  §  1572. 

Agent  cannot  have  authority  to  defraud  principal,  §  2306. 

Apprenticeship,  ground  for  annulling,  §  276. 

As  affecting  right  to  specific  performance,  §  3391. 

As  ground  for  annulment  of  marriage,  §  82. 

Assignment  for  creditors,  effect  of  fraud  in,  §  3457. 

By-bidding  at  auction  sale,  §  1797. 

Carrier,  cannot  exonerate  from  liability  for,  §  2175. 

Consent,  obtained  by  fraud  or  concealment,  contract  not  enforceable, 
§3391. 

Consent  to  contract  obtained  by,  effect  of,  §§  1567,  1568. 

Constructive,  defined,  §  1573. 

Constructive  or  actual,  is,  §  1571. 

Contract  deemed  obtained  through,  when,  §§  1568,  1571,  1572,  1573. 

Contract  for  exemption  from  one's  own,  void,  §  166S. 

Contract  not  expressing  intent  because  of,  intent  governs,  §  1640. 

Contract  obtained  through,  voidable,  §§  1566,  1567,  1689. 

Contract  prevented  from  being  put  in  writing  by  enforced  when, 
§  1623. 

Deceit,  §§  1709-1711.     See   Deceit. 

Desertion  induced  by,  who  commits  desertion,  §  97. 

Disregarding  erroneous  jjarts  of  writing,  in  case  of,  §  1640. 

Eft'ect  on  oral  contract  not  in  writing  through  fraud,  §  1623. 

Enforcing  oral  contract  against  fraudulent  party,  §  1623. 

Exemplary  damages  in  case  of,  §  3294. 

False  certificate,  report  or  notice  by  officer  of  corporation,  liability 
for,  §  316. 

False  entries  in  corporate  books,  liability  for,  §  316. 

Fraudulent  conveyance.     See  Fraudulent  Conveyance. 

Instrument,  creditor,  when  can  avoid  for,  §  3441. 

Instrument,  when  makes  void  against  purchaser,  §  1227. 

Instrument,  when  void  against  creditors,  §  3439. 

Insurance,  omission  to  communicate  avoids,  §§  2562,  2569. 

Insurance,  return  of  premium  where  polic}'  voidable  for  fraud,  §  2619. 

Insurer,  when  exonerated  for  loss  through,  §  2629. 

Intent,  question  of  fact,  §  3442. 

Interest  as  damages  in  case  of,  §  3288. 

Marine  insurance,  in  valuation,  effect  of,  §  2736. 

Marriage,  contracted  through,  §  58. 

Marriage,  in  contracting,  ground  for  annulling,  §  82. 

One  fraudulently  dispossessing  himself  may  be  treated  as  in  pos- 
session, §  3518. 

Pledge,  misrepresenting  value  of,  §  2999. 

Reformation  of  contract  for,  §  3399. 

Rescission  for,  §§  1689,  1690. 


INDEX.  1103 

FRAUD.      (Continued.) 

Eescission  for,  what  stipulations  do  not  defeat,  §  1690. 
Eestoration  of  thing  wrongfully  received,  §§  1712,  1713. 
Specific  performance,  as  affecting  right  to,  §  3391. 
Trust  arises  from,  when,  §  2224. 
Trustee  guilty  of,  when,  §  2234. 
Undue  influence  defined,  §  1575. 
Will  procured  or  revoked  by,  §  1272. 

FRAUDS.  , 

Statute  of.     See  Statute  of  Frauds. 

FRAUDULENT  CONVEYANCE. 

Assignment  for  creditors,    provisions   as   to   notice   do   not   apply   to, 
§  3440. 

Assignment  for  creditors,  when  void,  §  3457. 

Assignment  of  stock  in  trade,  notice  of,  to  be  recorded,  §  3440. 

Assignment  of  stock  in  trade,  notice  of,  what  to  state,  §  3440. 

Avoidance  of,  creditors  when  can  avoid,  §  3441. 

Auction,  sale  of  stock  in  trade  at,  notice  to  be  recorded,  §  3440. 

Bottomry,  delivery  not  necessary,  §  3440. 

Chattel  mortgages  when  void  against  creditors,  §  2957. 

Chattel  mortgage,  delivery,  §  3440. 

Consideration,  transfer  without,  may  be  valid,  §  3442. 

Consideration,  transfer  without  void  as  to  existing  creditors,  §  3442. 

Creditors,  when  only  can  avoid,  §  3441. 

Debtor's  contract  valid,  when,  §  3431. 

Delivery  of  personalty  necessary,  §  3440. 

Exempt  property,  transfer  of,  provisions  as  to  notice  do  not  apply 
to,  §  3440. 

Fraud  a  question  of  fact,  §  3442. 

General  rule  as  to,  §  3439. 

Instruments  designed  to  defraud  purchasers  or  encumbrancers,  void 
as  against,  §  1227. 

Judicial  proceedings  as,  §  3439. 

Lien,  change  of  possession,  §  3440. 

Notice  on  transfer  of  stock  in  trade,  §  3440. 

Notice,  purchasers  or  encumbrancers  with,  effect  on,  §  1228. 

Possession,  change   of,  wines,   casks,   etc.,   in  wineries,   delivery  not 
necessary  where  transfer  recorded, §  3440. 

Possession,  transfer  of  .personalty  without  change  of,  when   conclu- 
sively presumed  fraudulent,  §  3440. 

Preference  by  special  partnership,  when  void,  §  2496. 

Preferences  valid,  §  3432. 

Presumption  as  to,  in  absence  of  deliverey,  etc.,  §  3440. 

Purchaser  with  notice,  effect  on,  §§  1228. 

Question  of  fraud  determined  how,  §  3442. 

Realty,  of,  what  is,  §§  1227-1231. 

Realty,  of,  what  not,  §  1228. 

Reservation  of  interest  avoids  assignment  for  creditors,  §  3457. 

Reserving  power  of  revocation,  power  when  executed,  §§  1229,   1230. 

Respondentia,  delivery  not  necessary,  §  3440. 

Sale  by   executor,   guardian,   receiver,   etc.,   provisions   as   to   notice 
do  not  apply,  §  3440. 

Sale  of  stock  in  trade,  five  days'  notice  of  to  be  recorded,  §  3440. 
Sale  of  stock  in  trade,  notice  of,  what  to  state,  §  3440. 

Ship  or  cargo  need  not  be  delivered,  §  3440. 

Special  partnership,  by,  what  is,  §  2496. 

Transfer  of  stock  in  trade,  five  days'  notice  to  be  recorded,  §  3440. 

Unlawful  transfers,  §§  1227-1231. 


1104:  INDEX. 

FRAUDULENT  CONVEYANCE.      (Coutinued.) 
Void,  §  3439. 

Voluntary  transfers,  void  as  to  existing  creditors,  §  3442. 
Voluntary  transfers  valid,  wlien,  §  3442. 
What  transfers  are,  in  general,  §  3439. 
Wines  need  not  be  delivered,  when,  §  3440. 

FREEHOLD. 

Defined,  §  765. 

Estate  for  life  is,  §  765. 

Estate  for  life  of  third  person  is,  §  766. 

Estate  of  inheritance  is,  §§  762,  765. 

May  commence  at  future  day,  §  773. 

Eemainder  of,  may  be  created  on  term  of  years,  §  773. 

FREIGHT  AND  FREIGHTAGE.     See  Carriers  of  Goods. 
Abandonment  of  ship,  right  to,  on,  §  2730. 
Abandonment  of  freightage  by  insured,  right  of,  §  2717. 
Arrival,  duty  of  carrier  after  and  before  delivery,  §  2120. 
Bill  of  lading.     See  Bill  of  Lading. 
Carrier  exonerated  from  liability,  by  delivery,  §  2131. 
Carrier  must  not  stow  on  deck,  §  2117. 
Carrier,  obligation  of  to  accept,  §  2169. 
Carrier's   lien   for  freightage,  §  2144. 
Consignee  defined,  §  2110. 

Consignee,  refusal  to  accept  duty  of  carrier  on,  §  2121. 
Consignee,  when  liable  for  freightage,  §  2138. 
Consignor  defined,  §  2110. 

Consignor  of  valuable,  to  declare  its  nature  and  value,  §  2200. 
Consignor,  presumed  liable  for  freightage,  §  2137. 
Consignor,  when  not  liable  for  freightage,  §  2137. 
Damages  for  carrier's  failure  or  delay  in  delivery,  §§  3316,  3317. 
Damages   for   carrier's  refusing  to  receive,  §  3315. 
Deck,  freight  when  only  can  be  stowed  on,  §  2116. 
Definition  of  freight,  §  2110. 
Definition  of  freightage,  §§  2110,  2661. 
Delivered,  where  to  be,  §§  2118,  2119. 
Delivery  beyond  usual  route,  §  2201. 
Delivery,  carrier    may    demand    surrender    of    bill    of   lading    before, 

§2132. 
Delivery,  duty  of  carrier  after  arrival  and  before  deliver^-,  §  2120. 
Delivery,  manner  of,  §  2118. 

Delivery  to  holder  of  bill  of  lading  exonerates  carrier,  §  2131. 
Delivery,  to  whom  made,  §§  2118,  2119. 
Duty  after  arrival,  §§  2120,  2121. 

Freightage,  abandonment  of,  by  insured,  right  of,  §  2717. 
Freightage,    additional,    on    carriage   farther   or    more    expeditiously 

then  agreed,  §  2148. 
Freightage,  apportionment  on  acceptance  of  part,  §  2141. 
Freightage,  apportionment  of,  by  contract,  §  2140. 
Freightage,  apportionment  on  acceptance  at  place  short  of  delivery, 

§  2142. 
Freightage,  defined,  §§  2110,  2661. 
Freightage,  how  valued  on  general  average,  §  2153. 
Freightage,  hypothecation  of.     See  Bottomry. 
Freightage,  in  marine  insurance,  defined,  §  2661. 
Freightage,  insurable  interest  in,  §§  2G62,  2663. 
Freightage,  liable  for  contracts  of  ship  master,  §§  2376,  2380. 
Freightage,  lien  for,  §  2144. 
Freightage,  not  chargeable  on  natural  increase  of  freight,  §  213t). 


I 


INDEX. 


1105 


FREIGHT  AND  FREIGHTAGE.     (Continued.) 
.  Freightage,  payable  by  whom,  §§  2137,  2138. 
Freightage,  payable,  when,  §  2136.  ' 

Freightage,  powers  of  ship  manager  as  to,  §§  2388,  2389. 
insurable  interest  in  freightage,  §  2662. 
Insurable  interest,  when  exists,  §  2663. 
Liability  of  inland  carriers  for  loss,  §  2194. 
Liability  of  marine  carriers  for  loss,  §  2197. 
Lien  for  freightage,  §  2144. 

Marine  insurance,  freightage  in,  §§  2661-2663. 
Master  of  ship  may  hypothecate,  §  2377. 
Master's  authority  over,  ceases  on  abandonment,  §  2381. 
Notice  of  arrival,  when  necessary,  §  2120. 
Proof  in  case  of  loss  of  through  freight,  §  2202. 
Sale  of  perishable  property  for,  §  2204. 
Seaman  has  lien  upon  freightage,  §  3056. 
Ship,  abandonment  of,  effect  of  on  freightage,  §  2730. 
Ship-master  has  lien  upon  freight,  §  3055. 
Ship's  manager  cannot  give  up  lieu  for,  §  2389. 
Ship's  manager  may  settle  for  freightage,  §  2388. 
Storage  by  carrier,  proper,  when  consignee  does  not  accept,  §  2121. 
Through  freight,  delivery  to  connecting  carrier,  §  2201. 
Through  freight,  proof  in  case  of  loss  of,  §  2202. 
Value  of  in  estimating  loss  under  open   policy,  §  2741. 
Wages  of  seamen  depend  on  freight  being  earned,  §§  2054,  2058. 
When  carried  farther  than  agreed,  §  2143. 
Who  liable  for,  §§  2137,  2138. 
Whose  directions  govern  delivery  of,  §  2115. 

FRIENDLY  SOCIETIES.     See  Religious,  Social,  and  Benevolent  Corpora- 
tions. 
Limitation  on  amount  of  land  held  by,  §  596. 
Surplus  real  estate  to  be  sold  within  what  time,  §  596. 

FUNDS. 

Investment  of.     See  Investments. 

Mortgage  participation  certificates  and  securities  guaranteed  by  poli- 
cies of  mortgage  insurance  as  legal  investments  for  funds  of, 
§  453ff. 

FURTHER  ASSURANCE. 

Covenant  runs  with  land,  §  1463. 

Form  of,  §  1734. 

Included  in  agreement  to  give  usual  covenants,  §  1733. 

FUTURE.     See  Future  Estates;  Future  Injuries;  Future  Interests. 
Damages,  right  to  recover,  §  3283. 
Guaranty  relating  to  future  liability,  §§  2814,  2815. 
Present  includes,  §  14. 
Representation  as  to,  effect  of,  §  2574. 
W^arranty  as  to  future  event,  §§  2608,  2609. 

FUTURE  ESTATE.     See  Future  Interests. 

Expectancy  of  heir  apparent  is  not  an  interest,  §  700. 

May  be  limited  on  termination  by  any  means  of  precedent   estate, 

§  767. 
May  be  limited  without  intervention  of  a  precedent  estate,  §  767. 
Mere  possibility  is  not  an  interest,  §  700. 
Remainder,  future  estate  when  called,  §■  769. 
Civ.  Code — 70 


1106  INDEX. 

FUTURE  ESTATE.     (Continued.) 
Eemainders.     See  Kemainders. 
Eeversions.  •  See  Eeversions. 
Eight  of  owner  to  use  easements,  §  808. 

FUTURE  IITJURIES. 

Damages  for,  §  3283. 

FUTURE  INTERESTS.     See  Future  Estate. 
Accumulations.     See  Accumulations. 
Alienation,  suspending  power  of.     See  Alienation. 
Alternative,  may  be  in,  §  696. 
Are  vested  or  contingent,  §  693. 
Contingent,  when,  §  695. 

Defeat,  birth  of  posthumous  child  defeats,  when,  §  739. 
Defeated,  interest  not  void  because  it  may  be,  §  74:0. 
Defeated,  may  be,  in  any  manner  provided  by  act  of  creator  of.  §  740. 
Defeated,  not  by  any  act  of  owner  of  intermediate  estate,  §  7-il. 
Defeated,  not  by  destruction,  forfeiture,  merger,  etc.,  of  intermediate 

estate,  §  741. 
Defeated,  not  by  determination  of  intermediate  estate  before  vesting 

of,  §  742. 
Defined,  §  690. 

Heirs  and  issue,  meaning  of,  §  1071. 
Income  undisposed  of,  to  whom  belongs,  §  733. 
Issue,  meaning  of,  §  1071. 
Lien  may  be  created  on,  §  2883. 
Lien  on,  when  attaches,  §  2883. 
Not  void  because  it  may  be  defeated,  §  740. 
Not  void  because  of  improbability  of  contingency,  §  697. 
Pass  by  will,  succession,  and  transfer  same  as  present  interests,  §  699. 
Power  of  appointment,  effect  of  on,  where  not  executed,  §  781. 
Eights  of  posthumous  child,  §  698. 

Several  may  be  created  to  take  effect  in  alternative,  §.696. 
Time  of  creation  of,  §  749. 
Vested,  when,  §  694. 
What  only  recognized  by  code,  §  703. 
Who  entitled  to  income  where  no  disposition  of  it,  §  733. 

G 

GAME. 

Eight  to  take,  §§  801,  802. 

GAMING. 

Insurance,  void,  §  2558. 

GARAGES. 

Liens  of  proprietors  of,  §  3051. 

GAS  CORPORATION. 

Provisions  of  code  relating  to  repealed,  §§  629,  630,  630a,  631,  632. 

GENDER. 

Of  words  in  code,  §  14. 

GENERAL  AVERAGE. 

Adjusted  how,  §  2152. 
Adjustment,  validity,  §  2152. 
Apportionment  of  loss,  §  2151. 


I 


INDEX.  1107 

GENERAL  AVERAGE.      (Continued.) 
Contribution  in  case  of,  §  2642. 
Defined,  §  2148. 

Goods  stowed  on  deck,  on  jettison  of,  §  2154. 
In  general,  §§  2148-2155. 

Insurance  free  from  particular  average,  effect  of  on,  §  2711. 
Marine  insurer  liable  for,  §§  2711,  2744. 
Rules  of,  apply  to  what  sacrifice  and  losses,  §  2155. 
Ship  manager  may  adjust,  §  2388. 
Valuation,  time  of  ascertaining,  §  2153. 
Values,  ascertained  how,  §  2153. 

GIFT. 

Ademption  of  legacy,  §  1357. 

Causa  mortis,  defined,  §  1149. 

Causa  mortis,  effect  of  will  on,  §  1152.     See  Wills,  IX. 

Causa  mortis,  presumed  when,  §  1150.  ' 

Causa  mortis,  revocation  of,  §§  1149,  1151. 

Causa  mortis,  treated  as  legacy,  when,  §  1153. 

Community  property,  of,  §  172. 

Defined,  §  1146. 

Delivery  necessary,  §  1147. 

Made  how,  §  1147. 

Presumed  made  in  view  of  death,  when,  §  1152. 

Revocable,  not,  §  1148. 

Revocation  of,  rights  of  bona  fide  purchaser,  §  1151. 

Revocation  of  gift  causa  mortis,  right  of,  §  1151. 

Revocation  of  gift  causa  mortis,  what  amounts  to,  §  1151. 

Satisfying  before  death,  when  given  in  will  in  view  of  death,  §§  1367, 

1370. 
Subscribing  witness,  to,  §§  1282,  1283. 
Verbal,  how  made,  §  1147. 

GOATS.     See*  Animals. 

GOOD  FAITH. 

Agent  indemnified  for  advance  made  in,  §  2344. 
Agent,  whether  bound  by  act  in,  §  2343. 
Offer  of  performance,  to  be  in,  §  1493. 
Partner,  bound  to  highest,  §  2411. 
Partner,  when  not  bound  by  act  not  in,  §  2431. 
Principal  bound  to  persons  acting  in,  §  2334. 
Trustee,  bound  to  highest,  §  2228. 

GOOD-WILL. 

Assignable,  is,  §  993. 

Assignor  may  give  right  to  use  name,  §  993. 

Definition,  §  992. 

Does  not  include  right  to  use  name,  §  992. 

Name,  assignor  may  transfer  right  to  use,  §  993. 

Name  of  business  may  be  transferred  with,  §  993. 

Ownership,  subject  of,  §  655. 

Partner  may  not  dispose  of,  §  2430. 

Property,  is,  §§  655,  993. 

Sale  of,  agreement  not  to  go  into  business,  §  1674. 

Subject   of   ownership,  §  655. 

Transfer  of  may  include  right  to  use  name,  §  993. 

Warranty  on  sale  of,  §  1776. 


1108  INDEX. 

GRACE. 

Days   of,  not   allowed,  §  3181. 

GRADING  TRACKS. 

Granting  right  for,  §  509. 

GRANT.     See  Conveyance;  Deed;  Transfer. 
After-acquired  title  passes  by  deed,  §  1106. 
Cancellation  does  not  revest  title,  §  1058. 
Conclusiveness  as  to  parties  and  privies,  §  1107. 
Conditions  in.     See  Conditions. 
Conveyance,  defined,  §  1215. 
Covenants.     See  Covenants. 
Defined,  §  1053. 

Delivery,  constructive,  of,  §  1059. 
Delivery  necessary  to  taking  effect  of,  §  1054. 
Delivery  presumed  to  be  at  date,  §  1055. 
Delivery  to  grantee  or  agent  is  absolute,  §  1056. 
Delivery  to  stranger,  effect  of,  §  1059. 
Fee  simple  presumed  to  pass,  §  1105. 
Form  of,  §  1092. 

Highway,  grant  of  land  bounded  on,  what  passes,  §  1112. 
Includes  whatever  is  essential  to  use,  §3522. 
Interpretation  of.     See  Conveyances. 
Married  woman's,  acknowledge  how,  §  1093. 
Married  woman's,  effect  of,  §  1187. 
Married  woman's,  how  executed,  §  1093. 
Modes  of  transfer,  §  1091. 

Name,  change  of,  conveyance  in  case  of,  §  1096. 
Power  to  revoke  or  modify,  when  deemed  executed,  §§  1229,  1230. 
Property,  how  transferred,  §  1091. 
Eecording.     See  Eecording. 
Redelivery  does  not  revest  title,  §  1058. 
Re-entry,  when  and  how  made,  §  791. 
Rent,  right  of  grantee  or  devisee  of,  §  821. 
Reversion,  right  of  grantee  of,  §  821. 
Term  "grant"  includes  what  instruments,  §  1053. 
Third  person,  may  inure  to  benefit  of,  §  1085. 
Time  of  creation  of  interest  created  by,  §  749. 

GREATER. 

Contains  less,  §  3536. 

GROWING  CROP.     See  Crops. 

Lien  of  mortgage  continues  after  severance,  §  2972. 

GROWING  TREES.     See  Trees. 

GUARANTY.     See  Indemnity;  Suretyship. 

Acceptance,  notice  of,  necessity  of,  §  2795. 

CoUectability,  of,  liability,  recovery  and  discharge  on,  §§  2801,  2802. 

Colleetability,  of,  not  discharged  bj'  failure  to  proceed  on  original 
debt  or  collateral,  when,  §  2801. 

Collectabilitv,  of,  removal  of  principal  from  state  leaving  no  prop- 
erty,  effect   of,  §  2802. 

CoUectability,  of,  what  imports,  §  2800. 

Conditional,   guaranty   deemed  unconditional,  §  2806. 

Conditional  obligation,  notice  of  default,   necessity  of,  §  2S0S. 

Conditional  obligation,  of,  liability  on,  §  2S0S. 

Consideration  for,  §  2792. 


INDEX.  1109 

GUARANTY.      (Continued.) 

Consideration,  writing  need   not   ox[ness,  §  27'.>;>. 

Construed,  how,  §  2806. 

Continuing,  defined,  §  2814. 

Continuing,  revocation  of,  §  2815. 

Defined,  §  2787. 

Delay  of  creditor  does  not  discharge,  §  2823. 

Demand  not  necessary  to  liability  when,  §  2807. 

Disability  of  principal,  effect  of,  §  2810. 

Enumeration  of  original  obligations,  §  2794. 

Factor  del  credere,  necessity  of  writing,  §  2794. 

Factor  selling  under  guaranty  commission,  liability  of,  §§  2029,  2030. 

Guarantor's    liability   cannot   exceed   principal's,  §  2809. 

Illegal  contract,  guarantor  not  liable  on,  §  2810. 

Incomplete  contract,  of,  what  implied  in,  §  2799. 

Indemnified  guarantor,  effect  of  alteration  of  contract,  §  2824. 

Indorser  has  rights  of  guarantor,  §  3121. 

Knowledge  of  principal  not  necessary,  §  2788. 

Letter  of  credit,  §§  28.58-2866. 

Letter  of  credit  may  be  continuing,  §  2864. 

Liability  not  affected  by  disability  of  principal,  §  2810. 

Liability  of  guarantor   cannot   exceed   principal's,  §  2809. 

Liability  of  guarantor  to  be  reduced  if  it  exceeds  principal's,  §  2809. 

Liability  on,  accrues  when,  §§  280-7,  2808. 

Liable,  guarantor  is  although  contract  void  as  to  principal,  §  2810. 

Liable,  guarantor  is  not  where  contract  illegal,  §  2810. 

Notice  of  acceptance,  necessity  of,  §  2795. 

Notice  of  default,  necessity  of,  §§  2807,  2808. 

Notice  of  default  not  necessary  upon  guaranty  of  payment  or  per- 
formance, §  2807. 

Original  obligations,  enumeration  of,  §  2794. 

Original,  obligation  when  deemed,  §  2794. 

Part  performance  of  obligation,  effect   of,  §  2822. 

Payment,  of,  demand  and  notice  of  default  not  necessary,  §  2807. 

Performance,  of,  demand  and  notice  of  default  not  necessary,  §  2807. 

Principal's  contract  void,  effect  of,  §  2810. 

Principal's  disability  does  not  affect,  §  2810. 

Eeduced  by  partial  performance,  §  2822. 

Kelease,  alteration  of  contract  is  not,  where  guarantor  indemnified, 
§  2824. 

Eelease,  alteration  of  contract,  rescission  of  alteration  does  not  re- 
store  liability,  §  2821. 

Eelease,  alteration  of  obligation,  void  or  voidable  promises  are  not, 
§  2820. 

Eelease  by  altering  obligation  of  principal,  §  2819. 

Eelease,  delay  of  creditor  does  not  work  a,  §  2823. 

Eelease,  discharge  of  principal  by  act  of  law  does  not  work  a,  §  2825. 

Release,  effect  of  part  performance  as  a,  §  2822. 

Eelease  of  one  or  more  joint  debtors,  effect  of,  §  1543. 

Eelease,  remedies  against  principal,   impairing,  §  2819. 

Eelease,   remedies   are   not   impaired   by   void   or   voidable   promises, 
§  2820. 

Eelease,'  void  premises  do  not  work  a,  §  2820. 

Eevocation  of  continuing,  §  2815. 

Statute  of  frauds,  effect  of,  on,  §  1624. 

Surety  has  rights  of  guarantor,  §  2844. 
Time  when  liability  on,  accrues,  §  2807. 
Unconditional,  guaranty   deemed  to   be,  §  2806, 


1110  INDEX. 

GUARANTY.      (Continued.) 

Void  as  to  principal,  guarantor  liable  although  contract  is,  §  2810. 
Written,  must  be,  §§  1624,  2793. 
Written,  need  nbt  be  when,  §  2794. 

GUARDIAN  AND  WARD. 

Abandonment  of  child,  forfeiture  of  custody  or  guardianship,  §  246. 

Abduction  of  ward,  forbidden,  §  49. 

Ad  litem,  guardian,  appointed  to  enforce  rights  of  ward,  §  42. 

Appointment,  mother  of  illegitimate  may  malie,  §  241. 

Appointment,  preference  between   parents,  §  246. 

Appointment,  preference  between  persons  equally  entitled,  §  246. 

Appointment,  right  of  father  to  make,  §  241. 

Appointment,  right  of  parent  to  make,  §  241. 

Appointment,  rules  governing  court  in  making,  §  246. 

Appointment,  superior   court   may   appoint   guardian,   in   what   cases, 
§243. 

Apprenticeship,  guardian  maj-  bind  ward  to,  when,  §  265. 

Apprenticing  ward,  §  265. 

Assault  on  ward,  right  to  protect  against,  §  50. 

Confidential,  relationship  between  is,  §  250. 

Corporation,  act  authorizing  to  act  as  executor.     Appendix,  tit.  "Cor- 
porations." 

Corporation   authorized   to   act   as   guardian,   capital   required   to   be 
paid  in  and  affidavit  as  to',  §  290. 

Court,  guardian  is  under  direction  of,  §  251. 

Custody  of  minors,  rules  for  awarding,  §  246. 

Custody  of  ward,  guardian  of  person  has,  §  248. 

Damages  for  holding  over  by  guardian,  §  3335. 

Death  of  joint  guardian.  §  252. 

Definition  of  guardian,  §  236. 

Definition  of  ward,  §  237. 

Deposit  in  bank  or  trust  company  and  discharge  from  liability.     Ap- 
pendix, tit.  "Banking,"  §§  51,  91. 

Deposit  of  assets  in  trust  company-  and  reduction  of  bond.     Appen- 
dix, tit.  "Banking,"  §  93. 

Discharge  after  ward's  majoritj^  time  of,  §  257. 

Discharge,   guardian,   when   entitled   to,  §  257. 

Education  of  ward,  guardian  of  person  must  look  to,  §  248. 

Enticement  of  ward  from  guardian,  forbidding,  §  49. 

Father,  appointment  of  guardian  by,  §  241. 

Foreign   guardians,   satisfaction   of  mortgage  of  record  by,  §  2939^4- 

Forfeiture  of  guardianship  by  guardian,  what  amounts  to,  §  246. 

General  guardians,  §  238. 

General  guardian,    defined,  §  239. 

General  guardian,  rules  for  appointing,  §  246. 

Guardian  ad  litem,  appointed  to  enforce  rights  of  ward,  §  42. 

Guardian  appointed  by  parent,  superseded  how,  §  254. 

Guardian  defined,  §  236. 

Guardian  forfeits  right  to  guardianship  by  what  acts,  §  746. 

Guardian  under  direction  of  court,  §  251. 

Guardian,  who  may  appoint  by  will  or  deed,  §  241. 

Guardians  are  special  and  general,  §  238. 
-    Guardianship,   dissolved  by  what,  §  254. 

Health  of  ward,  guardian  of  person  must  look  to,  §  248. 

Holding  over  by  guardian,  damages  for,  §  3335. 

Illegitimate  child,  guardian  may  sue  father  for  support,  §  196a. 

Illegitimate  child,  mother  may  appoint  guardian,  §  241, 


INDEX.  1111 

GUARDIAN  AND  WARD.      (Continued.) 

Joint  guardian,  death  of,  power  of  survivor,  §  252. 

Jurisdiction  over  guardian,  court  appointing  has  exclusive,  §  245. 

Kinds  o'f  guardians,  §  238. 

Majority,  attainment  to  terminates  authority  of  guardian,  §§  254,  255. 

Management    and    disposition    by    guardian    under    control    of    court, 
§  251. 

Marriage  of  vpard,  consent  of  guardian,  when  necessary,  §  69. 

Marriage  of  ward  terminates  authority,  §§  254,  255. 

Mortgage  participation  certificates  and  securities  guaranteed  by  poli- 
cies of  mortgage  insurance  as  legal  investments  for  funds,  §  453ff. 

Mother  may  appoint  of  illegitimate  child,  §  241. 

Non-resident  minor,  guardian  of  property  may  be  appointed,  §  244. 

No  one  can  act  as  guardian  of  property  without  appointment,  §  242. 

Orphan  asylum,  guardians  for  infants  maintained  in.     Appendix,  tit. 
"Infancy." 

Orphan    asylum,    managers    have    preferred    right    to    guardianship, 
when,  §  246. 

Orphan  asylum,  permitting  child  to  remain  in,  effect  on  custody  or 
guardianship,  §  246. 

Parent  abandoning  child  forfeits  right  to  guardianship,  §  246. 

Parental  authority  ceases  on  appointment  of  guardian,  §  204. 

Parent  failing  to  maintain  child  forfeits  guardianship,  §  246. 

Parent  permitting  child  to  remain  in  orphan  asylum  without  notice 
forfeits  guardianship,  §  246. 

Power  of  guardian  is  superseded  by  what  acts,  §  254. 
.     Power  of  guardian,  what   suspends,  §  255. 

Power  over  person   and  property,  guardian  has,  §  247. 

Property  of  ward,  duties  of  guardian  of  property,  generally,  §  249. 

Proxies,  guardian  may  give,  §  321b. 

Relation,  confidential,  §  250. 

Release  by  ward  to  guardian,  §  256. 

Removal  of  guardian,  grounds  for,  §  253. 

Residence,  guardian  may  not  fix  out  of  state,  §  248. 

Residence  of  ward,  guardian  may  fix,  §  248. 

Shares   of  stock   of  minor   or  insane  person,  guardian  to  represent, 
§313. 

Special  guardian,  generally,  §  238. 

Special  guardian  defined,  §  240. 

Stockholder,  guardian  as,  §  322. 

Stockholder,  liability   of  funds  in  guardian's  hands,  §  322. 

Superseded,  guardian  is,   how,  §  254. 

Support  of  ward,  guardian  of  person  must  look  to,  §  248. 

Suspended,  powers  of  guardian,  when  are,  §  255. 

Terminated,  guardianship  is,  by  what  acts,  §  254. 

Termination  of  powers  of  guardian,  what  effects,  §  255. 

Testamentary  guardian,  power  to  appoint,  §  241. 

Time  of  discharge,  after  ward's  majority,  §  257. 

Trusts,   relation   governed   by  provisions  on,  §  250. 

Ward  defined,  §  237. 

Ward   may    own    stock   in    homestead,  §  561. 

Ward,  release  by,  §  256. 

Wrongful  injury  to  ward,  right  to  protect  against,  §  50. 

Wages,  assignment  of  by  infant,  written  consent  of  parent  or  guard- 
ian  necessary, §  955. 

GUEST.     See  Innkeepers. 

Wrongful  injury,  right  to  protect  against,  §  50, 


1112 


INDEX, 


H 

HABITUAL  INTEMPERANCE.     See  Divorce. 

Divorce  for,  §§92,  107. 

HALr-BLOOD. 

Inheritance  by  kindred   of,  §  1394. 

HALLS. 

Corporations  to  erect,   directors  from   whom   elected,  §  305. 
Corporations  to  erect,  number  of  directors,  §  305. 

HANDWRITING. 

How   prov^ed,  §  1199. 

When  may  be  proved,  §  1198.  ^ 

HEAD  OF  FAMILY.     See  Homstead. 
Husband  as,  §  156. 

HEALTH  INSURANCE.     See  Mutual  Life,  Health,  Accident  and  Annu- 
ity Insurance  on  Assessment  Plan. 

HEALTH  INSURANCE  CORPORATIONS.     See  Insurance  Corporations. 

HEAT.     See  Heating  Corporations. 

Easement  of  receiving  from  or  discharging  over  land,  §  801. 

HEATING  CORPORATIONS. 

Companies  to  furnish  for  buildings  within  one  hundred  feet  of  main, 

§  629. 
Duty  to  supply  heat  on  application  and  penalty  for  refusal,  §  629. 

HEIR.     See  Succession. 

Conveyance  by  heir  claiming  by  succession,  good  unless  will  proved 

in  four  years  or  notice  of  devise  filed,  §  1364. 
Expectancy  of  heir  apparent  is  not  an  interest,  §  700. 
Inheritance  by.     See  Succession. 
Interpretation  of  "heirs,"  §  1071. 
Legitimacy,  may  dispute,  §  195. 
Minor's,   disaffirmance  of  contract,  §  35. 
Of  tenant  for  life,  taking  as  purchaser,  §  779. 
Sale  of  property  devised  or  bequeathed,  §  1363. 
Warranty  of  ancestor,  liability   on,  §  1115. 
Word  "heirs"  not  necessary  to  pass  fee.  §  1329. 

HIGHWAY.     See  Wagon-road  Corporation. 

Bonds  of  permanent  road  division  as  legal  investment  for  mortgage 
insurance  corporations,  §  453ee. 

Bonds  of  permanent  road  divisions  as  legal  investments  for  funds 
of  insurance  corporations,  §  421. 

Conveyance  of  land  bounded  Ijy,  passes  what,  §  1112. 

Franchises  for  railroads  on,  acts  relating  to.  Appendix,  tit.  "Rail- 
roads." 

Owner  presumed  to  own  to  center,  §  831. 

Railroad  crossing,  how  to  acquire  other  land,  §  472. 

Railroad,  how   may  cross,  §  472. 

Tolls    not    to    be    charged    on    public,  §  515. 

Water  company   must  not   obstruct,  §  551. 


'iNDfiX.  1113 

HIRING,     See  Landlord  and  Tenant;  Loan;  Master  and  Servant. 
Apportionment  of  hire  on  termination  before  time,  §  1935. 
Care  required   of  liirer,  §  1928. 
Charter-party  defined,  §  1959. 
Charter-party,  master  may  enter  into,  §  2376. 
Consent,  termination  by,  §  1933. 
Death  terminates,  when  and  when  not,  §  1933. 
Defined,  §  1925. 

Depositary  for  hire.     See  Storage. 
Destruction  of  thing  hired  terminates,  §  1933. 
Deterioration  or  injuries,  duty  to  repair,  §  1929. 
Expenses,  extraordinary,  hirer  may  incur,  when,  §  1957. 
Expenses,  hirer  when  to  bear,  §  1956. 
Expenses,  ordinary,  hirer  to  bear,  §  1956. 
Expenses,  power  of  hirer  to  meet,  §  1957. 
Expenses,  who  must  bear,  §§  1956,  1957. 
Expiration  of  term,  terminates,  §  1933. 
Forfeiture,  letter  may  declare  when,  §§  1930,  1931. 
Hirer  may  terminate  hiring  before  end  of  term,  when,  §  1932. 
Hirer  to  use  property  only  for  purpose  hired,  §  1930. 
Hirer  using  for  different  purpose,  rights  of  letter,  §  1930. 
Incapacity  terminates  when  and  when  not,  §  1934. 
Injuries,  hirer  to  repair,  §  1929. 

Letter  failing  to  fulfill  obligations,  remedy  of  hirer,  §  1957. 
Letter's  obligations,  §  1955. 

Letter  to  put  thing  in  fit  condition,  §§  1932,  1955. 
Lien  for  services.     See  Service. 
Lodgings  for  indefinite  time,  §  1944. 
Particular  use,  for,  §  1930. 
Perishing    of    material    part    of   thing    hired,    termination    of    hiring, 

§  1932. 
Products  of  thing  belong  to  hirer,  §  1926. 
Quiet  enjoyment,  lessor  to  secure,  §  1955. 
Quiet  possession,  failure  to  give,  termination,  §  1932. 
Quiet  possession,  letter  agrees  to  give,  §  1927. 
Real  property,  of.     See  Landlord  and  Tenant. 
Repairs,  duty  of  hi^rer  to  make,  §  1929. 

Repairs,  failure  to  make,  right  to  terminate  hiring,  §  1931. 
Repairs,  hirer  may  make  and  recover  from  letter,  when,  §  1957. 
Repairs,  letter's  obligation  as  to,  §  1955. 
Return  of  thing,  place  of,  §  1958. 
Return  of  thing,   time   of,  §  1958. 
Ships,  of,  §  1959. 

Terminate,  hirer  may,  before  end  of  term,  when,  §  1932. 
Terminate,  when  letter  may  before  end  of  term,  §  1931. 
Terminated  by  consent,  §  1933. 
Terminated  by  death  or  incapacity,  when,  §  1934. 
Terminated  by  destruction,  §  1933. 
Terminated  by  expiration   of  term,  §  1933. 
Terminated  by  hirer  acquiring  better  title,  §  1933. 
Terminates,  when,  §§  1933,  1934. 
Termination  before  time,  apportionment,  §  1935. 
Termination,  failure  to  put  in  good  condition,  §  1932. 
Termination,  failure  to  repair,  §§  1931,  1932. 
Termination,  perishing  of  material  part  of  thing,  §  1932. 
Termination,  using  in  manner  contrary  to  agreement,  §  1931. 
Title,  superior,  hirer  acquiring  terminates,  §  1933. 


1114  INDEX. 

HOLIDAY. 

Acts  not  to  be  done  on.  §  11. 

Business  days,  what  are,  §  9. 

Enumeration   of,  §  7. 

Falling  on  Sunday  next  day  celebrated,  §  7. 

Last  day  falling  on,  excluded,  §  10. 

Maturity  of  negotiable  instrument  where  last  day  falls  on,  §  3132. 

Performance    on    following   day,  §  11. 

Saturday   afternoon   a   holiday,  §  7. 

Saturday  afternoon  a  holiday  in  public  offices,  §  7. 

Saturday  afternoon,  what  acts  may  be  done  on,  §  7. 

School  holidays.     See  Schools. 

Sunday,  holiday  falling  on,  Monday  is  celebrated,  §  7. 

What  days  are,  §  7. 

HOLOGRAPHIC  WILLS.     See  Wills,  XI. 

HOMESTEAD.     See  Homestead  Corporation. 

Abandonment,  declaration   of,  §  1243. 

Abandonment,  declaration  of,  effectual  only  from  time  filed,  §  1244. 

Abandonment,  manner  of,  §  1243. 

Acknowledging  conveyance  or  encumbrance,  §  1242. 

Acknowledging  selection,  §§  1262,  1266. 

Appraisement  of,  application  for,  made  how,  §  1246. 

Appraisement  of,  costs  of  proceedings  to  subject  to  creditor's  de- 
mand, §  1259. 

Appraisement  of,  division  ordered  when,  §  1253. 

iVppraisement  of,  notice  of  time  and  place  of  hearing,  §  1248. 

Appraisement  of,  petition,  service  of,  §  1248. 

Appraisement  of,  petition  to  be  filed  with  clerk  of  the  superior  court, 
§1247. 

Appraisement  of,  petition,  verification  of  and  what  to  contain,  §  1246. 

Appraisement  of,  report  of,  what  to  show,  §  1252. 

Appraisement  of,  sale  of,  bids  not  received  unless  exceeding  home- 
stead exemption,  §  1255. 

Appraisement  of,  sale  of,  disposition  of  proceeds,  §  1256. 

Appraisement  of,  sale  of,  exemption  of  proceeds,  §  1257. 

Appraisement  of,  sale  of,  when  directed,  §  1254. 

Appraisement  of.  when  may  be  had,  §  1245. 

Appraisers,  appointment  of,  §  1249. 

Appraisers,  compensation  of,  §  1258. 

Appraisers,  duties  of,  §  1251. 

Appraisers,  oath  of,  §  1250. 

Ap])raisers,  report  of,  time  to  file,  §  1252. 

Appraisers,  report  of,  proceedings  on,  §§  1253-1259. 

Appraisers,  setting  off  property  where  it  can  be  divided,  §  1253. 

Community,  descent  of  homestead  selected  from  on  death  of  spouse, 
§1265.' 

Community,  selecting  from,  §  1238. 

Complete,  when,  §§  1265,  1269. 

Consists  of  what,  §  1237. 

Conveyance  of,  manner  of,  §  1242. 

Conveyance  in  case  of  insanity  of  spouse,  proceedings  on,  §§  1269a- 
1269c.     See  Insane  Persons. 

Corporation.     See  Homestead  Corporation. 

Death  of  spouse,  not  liable  for  debts.  §  1265. 

Death  of  spouse,  setting  apart  for  use  of  family,  §  1265. 

Death  of  spouse,  to  whom  descends,  §  1265. 

Debts,  for  what  liable,  §§  1241,  1265. 


INDEX.  1115 

HOMESTEAD.      (Continued.) 

Declaration  by  other  than  head  of  family,  recording  of,  §§  1268,  1269. 

Declaration  by  other  than  head  of  family,  what  to  contain,  §  1267. 

Declaration  must  contain  what,  §§  1263,  1267. 

Declaration  of  abandonment,  §§  1243,  1241. 

Declaration  of,  by  other   than  head  of  family  to  be  acknowledged, 

§  1266. 
Declaration  of,  recording,  §§  1262,  1264,  1268,  1269. 
Declaration  of  to  be  acknowledged  and  filed,  §  1262. 
Declaration,  where  recorded,  §§  1264,  1268. 
Divorce,  how  disposed  of,  on,  §§  146,  147,  148. 
Encumbrance  of,  acknowledgment  of,  §  1242. 
Execution,  not  subject  to  except,  etc.,  §  1240. 
Execution,  when  subject  to,  §  1241. 
Execution    against,    appraisement    of,    application    for,    how    made, 

§  1246. 
Execution,  against,  appraisement  of,  creditor  may  apply  for,  §  1245. 
Execution  against,  appraisement  of,  notice  of  time  and  place  of  hear- 
ing, §  1248. 
Execution  against,  appraisement  of,  petition  for,  service  of  and  time 

for,  §  1248. 
Execution  against,  appraisement  of,  time  to  apply  for,  §  1245. 
Exemption  of  from  debts,  §§  1240,  1241. 
Exemption  of  proceeds  on  sale  of,  §§  1257,  1265. 
Exemption  of,  for  what  debts  liable,  §§  1241, 1265. 
From  what  property  may  be  selected,  §  1238. 
Head   of  family,  who  is,  §  1261. 
Insane  persons,  of.     See  Insane  Persons. 
Liability  of,  in  general,  §  1265. 
Liens,  for  what  liable,  §  1241. 

Married  person,  from  what  property  may  be  selected,  §§  1238,  1239. 
Mortgage  of,  manner  of,  §  1242. 
Mortgage   in   case   of   insanity   of   spouse,   proceedings   on,  §§  1269a- 

1269c.     See  Insane  Persons. 
Mortgages,  for  what  liable,  §  1241. 

Other  persons  than  heads  of  families,  of,  selection  of,  §  1266. 
Premises  constitute  homestead  from  time  declaration  filed,  §  1265. 
Property  from  which  may  be  selected,  §§  1238,  1239. 
Property  included  in,  §  1237. 
Recording  declaration,  §§  1262,  1264,  1268,  1269. 
Recording  selection,  §§  1262,  1268,  1269. 
Sale  of,  exemption  of  proceeds,  §§  1257,  1265. 
Selected  from  what  property,  §§  1238,  1239. 
Selection  by  other  persons,  acknowledgment  of,  §  1266. 
Selection  by  other  persons,  declaration    to    be    recorded    in    county, 

§  1268. 
Selection  by  other  persons,  declaration  to  contain  what,  §  1267. 
Selection  by  other  persons,  land  becomes  homestead,  when,  §  1269. 
Selection  by  other  persons,  manner  of,  §  1266. 
Selection  from  wife's  property,  consent  necessary,  §§  1238,  1239. 
Selection,  mode  of,  §  1262. 

Selection,  wife,  by,  where  husband  has  not  selected,  §  1262. 
Separate  property,   descent   of  property   selected   from   on   death   o> 

spouse,  §  1265. 
Separate  property  of  husband,  selection  from,  §  1238. 
Separate  property  of  wife,  selection  from,  §§  1238,  1239. 
Succession  to  on  death  of  spouse,  §  1265. 
Tenure  by  which  held,  §  1265. 
Title  perfected,  when,  §§  126.5,  1269. 


1116  inde:^:. 

HOMESTEAD.      (Continued.) 

Unmarried  person,  from  what  property  may  be  selected,  §  1238. 

Value,  limitation  of,  §  1260. 

Value  of  where  claimant  is  not  the  head  of  a  family,  §  1260. 

Value,  where  selected  by  head  of  family,  §  1260. 

What  consists  in,  §  1237. 

What  may  be  selected  from,  §§  1238,  1239. 

When  complete,  §§  1265,  1269. 

W^ife,  selection  by  where  husband  does  not  select,  §  1262. 

Wife,  selection  of  from  separate  property  of,  §§  1238,  1239. 

HOMESTEAD  CORPORATION.     See  Homestead. 

Annual  report  and  its  publication,  §§  565,  566. 

Articles,  copy  of  to  be  furnished  stockholder,  §  558. 

Borrowing  and  loaning  money,  §  560. 

By-laws,  copy  of  to  be  furnished  stockholder,  §  558. 

By-laws  to  specify  what,  §  558. 

Defined,  §  557. 

Delinquent  shares,  advertisement  and  sale  of,  §  559. 

Fines,  penalties  and  forfeitures,  amount,  to  be  specified  in  by-laws, 

§558. 
Forfeited  shares,  advertisement  and  sale  of,  §  559. 
Forfeiture,  adjudication  of,  §  562. 

Forfeiture  for  owning  lands  in  excess  of  $200,000,  §  562. 
Forfeiture  for  speculating  in  lands,  §  562. 
Infants,  stock  purchased  with   earnings  or  gifts  of,  who  may  hold, 

§561. 
Installments,  by-laws  to  specify  what,  respecting,  §  558. 
Installments,  time  when  payable  to  be  specified  in  by-laws,  §  558. 
Interest,  rate  of,  on  borrowed  money,  §  560. 
Loaning  and  borrowing  money,  §  560. 
Married  women  may  own  stock  in,  §  561. 
Premiums,  default  in  payment,  resale  of,  §  564. 
Premiums,  sale   of  lots  for,  §§  563,  564. 
Publication  of  annual  report,  §§  565,  566. 
Sale   of  delinquent  and  forfeited  shares,  §  559. 
Statute  authorizing  formation  of  corporations  to  provide  homesteads 

for  members.     Appendix,  tit.  "Homesteads." 
Terminated,  when  and  how,  §  563. 
Termination  of,  dividends   on,  §  563. 

Termination  of,  division  and  disposition  of  property,  §  563. 
Time  of  corporate  existence,  §  557. 
Wards  may  own  stock,  §  561. 
What   are,  §  557. 

HOPS. 

Tare,   allowance   of   on   baled   hops,  §  995. 

HORSELESS  VEHICLES. 

Franchise  for  roads  for,  consent  of  majority  of  owners,  §  524. 
Franchises  for  roads  for,  power  to  grant,  §  524. 

HORTICULTURAL  ASSOCIATIONS.     See  Non-profit  Co-operative  Agri- 
cultural, Viticultural,  and  Horticultural  Associations. 

HORTICULTURE.     See    Non-profit    Co-operative,    Agricultural,    Viticul- 
tural and  Horticultural  Associations. 
Lease  of  land  for,  cannot  be  for  over  fifteen  years,  §  717. 


INDEX.  1117 

HOSPITAL.     See  Veterinary  Hospital  Proprietors. 

Corporation  for  hospital  purposes  cannot  take  by  will  unless  expressly 

authorized,  §  1275. 
Corporation   formed   for   hospital   purposes,   power   to   take   by   will, 
§  1275. 

HOTEL-KEEPERS.     See  Innkeepers. 

HOTELS.     See  Innkeepers. 

All  citizens  to  have  equal  rights,  §  51. 

Denial  of  equal  rights  in,  punishment  for,  §  52. 

Inciting  denial  of  equal  rights,  punishment,  §  52. 

HUMANE  SOCIETIES.     See  Coriiorations  for  Prevention  of  Cruelty  to 
Children  and  Animals. 

HUSBAND  AND  WIFE. 

Abandonment  by  wife,  husband  not  liable  for  support,  §  175. 

Abduction  of  spouse,  forbidden,  §  49. 

Accumulations  of  wife  and  children  living  separate  are  separate  prop- 
erty, §  169. 

Adoption  of  children.     See  Adoption. 

Assault,  right  to  protect  against,  §  50. 

Assignment  of  wages  or  salary,  written  consent  of  wife  or  husband 
necessary,  §  955. 

Children,  earnings  of  when  living  separate  with  mother  are  separate 
property, §  169. 

Children.     See  Parent  and  Child. 

Community  or  separate  property,  order  of  resort  to  on  divorce,  §  141. 

Community  property,  consent  of  wife  to  convey  or  give,  §  172. 

Community  property,  conveyance  of  without  consideration,  §  171. 

Community  property,  conveyance  or  en&umbrance  of  furniture,  cloth- 
ing, etc.,  consent  of  wife,  §  172. 

Community  property,  defined,  §  687. 

Community  property,  distribution  of  on  death  of  husband,  §  1402. 

Community  property,  distribution   of   on  death  of  wife,  §  1401. 

Community  property,  gift  by  husl^and,  §  172. 

Community  property,  includes  what,  §  164. 

Community  property,  limitation  of  action  to  show  property  was,  §.164 

Community  property,  may  hold  property  as,  §  161. 

Community  property  on  husband's  death,  subject  to  debts  and  allow- 
ances, §  1402. 

Community  property,  power  of  husband  over,  §  172. 

Community  property,  presumption  on  conveyance  to  husband  and 
wife,  §  164. 

Community  property,  presumption  on  conveyance  to  married  woman, 
§  164. 

Community  property,  presumption  on  conveyance  to  wife  and  an- 
other, §  164. 

Community  property,  succession  to  on  death  of  husband,  §  1402. 

Community  property,  succession  to  on  death  of  wife,  §  1401. 

Community  property,  testamentary   disposition   of,  §  172. 

Community  property,  when    not   liable   for   wife's  contracts,  §  167. 

Community  property,  wife's  testamentary  power  over,  §  1401. 

Consent  of  wife,  agreement  to  procure,  not  enforceable,  §  3390. 

Contracts  between   and  with   others,   capacity  to   make,  §  158. 

Contracts  between,  fiduciary  relation  towards  each  other,  §  158. 

Contract  between,  not  to  impair  their  legal  relations,  except  as  to 
property, §  159. 

Contract  for  separation, §§  159,   160.    , 


1118  '  INDEX. 

HUSBAND  AND  WIFE.      (Continued.) 

Co-tenancy  between,  §  161. 

Curtesy  not  allowed,  §  173. 

Custody  of  children,  when  wife  may  obtain,  §  21-i. 

Custody  of  children.     See   Custody;   Infant;   Parent  and   Child. 

Debts  of  ^'ife  before  marriage,  separate  property  of  husband  not 
liable,  §  170.  * 

Dividends  on  stock  of  married  woman,  to  whom  payable,  §§  325,575. 

Domicile,  husband  may  fix,  §§  103,  156. 

Domicile  of  wife  on   suit  for  divorce,  §  129. 

Domicile,  on  separation  of,  §  129. 

Domicile,  selecting  unfit,  amounts  to  desertion,  §  104. 

Dower  not  allowed,  §  173. 

Dwelling,  neither  can  be  excluded  from  other's,  §  157. 

Earnings  of  wife  and  children  living  separate  are  separate  property, 
§  169. 

Earnings  of  wife  not  liable  for  debts  of  husband,  §  168. 

Enticement  of  wife  forbidden,  §  49. 

Head  of  family,  husband  as,  §  156. 

Homestead,  wife  mgy  own  stock  in,  §  561. 

Husband's  rights  and  liabilities  respecting  stepchildren,  §  209. 

Husband's  rights  as  head  of  family,  §  156. 

Husband's  separate  property  includes  what,  §  163. 

Husband's  separate  property  not  liable  for  wife's  debts  before  mar- 
riage, §  170. 

Inheritance  of.     See  Succession. 

Interests  in  property  are  separate,  §  157. 

Inventory  of  wife's  estate,  filing  is  notice,  §  166. 

Inventory  of  wife's  estate  may  be  executed  and  recorded,  §  165. 

Inventory  of  wife's  estate  prima  facie  evidence  of  title,  §  166. 

Joint   tenancy  between,  §  161. 

Legitimacy  of  issue.     See  Bastards;  Legitimacy. 

Maintenance  without  divorce,  §  137.     See  Divorce. 

Marriage  settlement,  minor,  right  of  to  make,  §  181. 

Marriage  settlement,  effect  of  recording  or  non-recording,  §  180. 

Marriage  settlement,  how  executed,  §  178. 

Marriage  settlement,  how  proved,  §  178. 

Marriage  settlement  to  be  acknowledged  and  recorded,  §§  178,  179. 

Married  woman.     See  Married  \\'oman. 

Mode  of  living,  husband  may  choose,  §§  103,  156. 

Mode  of  living,  if  unfit,  is  desertion,  §  104. 

Mutual  obligations  of,  §  155. 

Necessaries  furnished  wife,  liability  of  husband,  §§  174,  175. 

Necessaries,  liability  of  wife's  separate  property  for,  §  171. 

Obligations,  mutual,  §  155. 

Place  of  living,  husband  may  choose,  §  103. 

Place  of  living,  providing  unfit,  is  desertion,  §  104. 

Presumption  on  conveyance  to,  §  164. 

Presumption  when  property  conveyed  to  wife,  §  164. 

Presumption  when  property  conveyed  to  wife  and  third  person,  §  164. 

Property  interests,  separate,  §  157! 

Property,  neither  has  interests  in,  of  other.  §  157. 

Property  of,  modes  by  which  may  be  held,  §  161. 

Property  rights  of,  code  sections  governing,  §  177. 

Seduction  of  wife  forbidden,  §  49. 

Separate  property,  earnings  and  accumulations  of  wife  and  children 
living  separate,  §  169. 

Separate  property  of  husband  not  liable  for  ante-nuptial  debts  of 
wife,  §  170. 


INDEX.  1119 

HUSBAND  AND  WIFE.      (Continued.) 

Separate  property  of  husband,  what  is,  §  163. 

Separate  property  of  wife,  liability   of  for  debts,  §  171. 

Separate  property  of  wife,  what  is,  §  162. 

Separate  property,  presumption  where  property  conveyed  to  wife, 
§164. 

Separate  property  presumption  where  property  conveyed  to  wife, 
and    another,  §  164. 

Separation,  consideration  of  contract  for,  §  160. 

Separation,  contract  for,  may  make,  §  159. 

Separation,  custody  of  children,  §  214. 

Separation,  husband  not  liable  for  support    of  wife,  §  175. 

Separation,  support  of  children  during,  §  159. 

Settlements,  marriage,  effect  of  recording,  §  180. 

Settlements,  marriage,  how  executed,  §  178. 

Settlement,  marriage,  minor  may  make,  §  181. 

Settlements,  marriage,  to  be  acknowledged  and  recorded,  §  179. 

Signature  of  husband  not  necessary  on  transfer  of  stock,  §  325. 

Signature  of  husband  not  necessary  to  proxy,  §  325. 

Stepchildren,  husband's  duties  and  liabilities  as  to,  §  209. 

Stock,  transfer  of  by  married  women,  §  325. 

Support,  mutual  obligation  of,  §§  155,  176. 

Support  of  children  during  separation  of,  §  159. 

Support  of  husband,  when  wife  liable  for,  §  176. 

Support  of  wife,  husband  liable  for,  §  174. 

Support  of  wife,  husband  not  liable  for,  when  abandoned  by  wife, 
§175. 

Support  of  wife  living  separate  by  agreement,  husband  not  liable 
for,  §  175. 

Tenancy  in  common   between,  §  161. 

Tenancy  in  common,  presumption  on  conveyance  to,  §  164. 

Tenancy  in  common,  presumption  on  conveyance  to  wife  and  an- 
other, §  164. 

Torts  of  wife,  liability  of  husband  for,  .§  171a. 

Wife.     See  Married  Woman. 

Wife's  earnings  not  liable  for  husband's  debts,  §  168. 

Wife's  earnings,  separate  property  when  living  apart,  §  169. 

Wife's  estate,  inventory  of,  §§  165,  166. 

Wife's  property  liable  for  her  debts,  §  171. 

Wife's  property  not  liable  for  husband's  debts,  §  171. 

Wife's  separate  property  includes  what,  §  162. 

Wrongful  injury,  right  to  protect  against,  §  50. 

HYDRAULIC  MINING. 
Defined,  §  1425. 
Right  to   carry  on,  §  1425. 
Where  and  when  can  be  carried  on,  §  1424. 


I 

IDENTIFICATION. 

Of  contracting  parties,  §  1558. 

Parties  to  contract  must  be  capable  of,  §  1558. 

IDIOT.     See  Insane  Persons. 

IDLE  ACT. 

Law  does  not  require,  §  3532. 

ILLEGITIMATE.     See  Bastards;  Legitimacy 


1120  INDEX. 

IMPLIED. 

Contracts.     See  Contracts,  I. 

Covenants.     See  Covenants. 

Trusts.     See  Trusts. 

Warranties.     See  Sales. 

What  incidents  and  stipulations  implied  in  contract,  §§  1655,  1656. 

IMPLIED  CONTRACTS.     See  Contracts,  I. 

IMPLIED  COVENANTS.     See  Covenants. 

IMPLIED  TRUSTS.     See  Trusts. 

IMPLIED  WARRANTIES.     See  Sales. 

IMPOSSIBILITY. 

Alternative  obligation,  impossibility   of   performance   of  one   altera 

tive,  §  1451. 
Ascertaining  consideration,  of,  effect  of,  §§  1612,  1613. 
Ascertaining  object  of  contract,  of,  effect  of,  §  1598. 
Condition  void  Ijecause  of,  §  1441. 
Defined,  §  1597. 
Everything    deemed    possible    except    that    which    is.   impossible    in 

nature  of  things,  §  1597. 
Law  does  not  require,  §  3531. 
Object  of  contract  must  be  possible,  §  1596. 
Of  condition   precedent  in   will,  effect   of,  §  1347. 
Performance,   of,  when   avoids  contract,  §  1598. 
Termination  of  trust  where  object  impossible,  §  2279. 
What  deemed  to  be  possible,  §  1597. 

IMPOTENCY. 

As  ground  for  annulment  of  marriage,  §  82. 

IMPROBABILITY. 

Of  contingency,  effect  on  future  interest,  §  697. 

INCAPACITY.     See  Insane  Persons. 

Physical,  ground  for  annulling  marriage,  §  82. 

Terminates  agency,  §  2355. 

Terminates  hiring,  §  1934. 

To  consent,  ground  for  nullity  of  marriage,  §  82. 

To  contract,  effect  on  contract,  §§  39,  40. 

INCEST. 

Judicial  declaration  of  incestuous  marriage,  right  to,  §  80. 
What  marriages  are  incestuous,  §  59. 

INCIDENT. 

Passes  with  principal,  §§  1084,  1656,  3540. 
Transfer  of,  does  not  pass  principal  thing,  §  1084. 

INCOME. 

Accumulations  of,  §§  722-733. 

Accumulation    of   during   suspension    of   alienation,   who   entitled    to, 

§  733. 
Accumulations.     See  Accumulations. 
Allowance  out  of,  §  726. 
Bequest  of,  when  accrues,  §§  1366,  1370. 
Defined,  §  748. 

Disposition   of,  governed   how,  §  722. 
Includes  what,  §  748. 
Undisposed   of,  who  entitled  to,  §  733. 


INDEX.  1121 

INCREASE.     See  Accession. 

Freightage  not  charged  for  natural,  of  freight,  §  2139. 
Pledge,  of  property  covered  by,  §  2989. 
Property,  of,  belongs  to  owner,  §  732. 
Property,  of  hired  belongs  to  hirer,  §  1926. 
Property,  of  lent  belongs  to  lender,  §  1885. 

INCUMBEANCE.     See  Encumbrance. 

INCUMBRANCER.     See  Encumbrancer. 

INDEMNITY.     See   Guaranty;   Suretyship. 

Actions,  indemnitor  bound  to  defend,  §  2778. 

Actions,  party  indemnified  may  conduct,  §  2778. 

Agents,  acts  of,  indemnity  covers,  §  2775. 

Agreement  of,  covers  acts  of  agents,  §  2775. 

Bond  of  indemnity  on  re-establishing  destroyed  negotiable  instru- 
ment, §  3415. 

Bond  of,  on  transfer  of  stock  by  non-resident,  §  326. 

Burnt  negotiable  instrument,  action  for  re-execution,  indemnity, 
§  3415. 

Defined,  §  2772. 

Future  wrongful  act,  against,  void,    §  2773. 

Includes  costs  of  defense,  §  2778. 

Interpretation   of,   rules   for,  §  2778. 

Judgment,  conclusiveness  of,  against  indemnitor,  §  2778. 

Judgment,  stipulation  that  it  shall  be  conclusive  against  indemnitor, 
effect  of,  §  2778. 

Liability  of  indemnitor,  §  2778. 

Liability  jointly  or  separately  on,  with  person  indemnified  to  persons 
injured, §  2777. 

On  payment  of  lost  negotiable  instrument,  §  3137. 

On  re-establishment  of  destroyed  negotiable  instrument,  §  3415. 

Past  wrongful  act,  against,  effect  of,  §  2774. 

Reimbursement,  indemnitor,  when  entitled  to,  §  2779. 

Reissuance  of  burnt  bonds,  indemnity  on,  §  329. 

Several,  to,  effect  of,  §  2776. 

Sureties  on,  in  legal  proceedings  called  bail,  §  2780. 

Surety,  when  person  indemnifying  is  entitled  to  rights  of,  §  2779. 

Unlawful  act,  against,  §§  2773,  2774. 

Wrongful  act,  against,  §§  2773,  2774. 

INDENTURE.     See  Apprenticeship. 

INDICTMENT. 

Nuisance,  for,  §§  3491,  3492. 

INDORSEMENT.     See  Negotiable  Instruments,  VIII. 
Apprenticeship,   indentures   of,  §§  266,    275. 
Bill  of  lading,  of,  §  2127. 
Marriage  certificate,  §  73. 

Non-negotiable  instrument,  transferable  by,  §  1459. 
Stock,  necessary  to  transfer,  §  324. 
Surveyor  general's  on  plat  of  right  of  way,  §  478. 
Warehouse  receipt,  indorsement  of.     See  Warehousemen. 

INFANTS.     See  Adoption;  Guardian  and  Ward;  Parent  and  Child;   Ap- 
prenticeship:  Legitimacy. 
Abandonment  of.     See  Adoption. 
Abduction  forbidden,  §  49. 
Civ.  Code — 71 


1122  INDEX. 

INFANTS.      (Continued.) 

Accumulation,  income  from,  when  applied  to  support  of,  §  726. 

Accumulations,  during  minority,  §§  722-733.     See  Accumulations. 

Action  by,  guardian  must  conduct,  §  42. 

Action,  minor  may  enforce  rights  by,  §  42. 

Action,  right  of  infant  to  maintain,  §  42. 

Adoption  of.     See  Adoption. 

Adults,   who   are,  §  27. 

Agent,  appointment  of,  by,  §  33. 

Apprenticing.     See   Apprenticeship. 

Building  and  loan  shares  may  be  owned  by,  §  643. 

Child  en  ventre  sa  mere,  rights  of,  §  29. 

Contract,  competency  to,  §§  1556,  1557. 

Contract  rights  of,  §§  33,  34. 

Contracts  of,  validity.  §§  33,  34. 

Cruelty  to  children.  See  Societies  for  Prevention  of  Cruelty  to  Chil- 
dren and  Animals. 

Custody  of,  code  provisions  regulating,  §  32. 

Custody,  rules  governing  court  in  awarding,  §  246. 

Custody  of.     See  Parent  and  Child. 

Deposits  in  bank,  how  held  and  paid.    Appendix,  tit.  "Banking,"  §  16. 

Delegation  of  power  by,  §  33. 

Disabilities  of,  §  33. 

Disaffirmance  of  contracts  by  personal  representative,  §  35. 

Disaffirmance  of  contracts,  generally,  §§  34,  35. 

Disaffirmance  of  contracts  for  necessaries,  §  36. 

Disaffirmance  of  contracts,  limitation  on,  §  35. 

Disaffirmance  of  contract,  return  of  consideration,  §  35. 

Disaffirmance  of  contract  under  authority  of  statute,  §  37. 

Duty  of  child  to  support  parent,  §  206. 

Duty  of  parent  to  support  child.     See  Parent  and  Child. 

En  ventre  sa  mere,  rights  of,  §  29. 

Exemplary  damages,  liability  for,  §  41. 

Guardian  holding  over  after  termination  of  estate,  liability,  §  3335. 

Guardian  must  conduct  action  by,  §  42. 

Guardians.     See  Guardian  and  "Ward. 

Head  of  family,  as.  §  1261. 

Homestead  stock  may  be  owner  by,  §  561. 

Land  and  building  shares  may  be  owned  by,  §  643. 

Legitimacy  of  children.     See  Legitimacy;  Parent  and  Child. 

Limit  of  term  of  lease  of  property  of  infant,  §  718. 

Marriage,  condition  in  restraint  of,  valid,  §  710. 

Marriage  of,  annulment  of,  §  82. 

Marriage,  of,  conditions  restraining,   effect   of,  §  710. 

Marriage  of,  consent  of  guardian  necessary  when,  §  69. 

Marriage  of,  contract  in  restraint  of  valid,  §  1676. 

Marriage  of,  who  capable  of,  §  56. 

Marriage  settlement  by,  maj^  be  made,  §  181. 

May  make  and  withdraw  deposits  in  savings  and  loan  society,  §  575. 

Necessaries,  contract  for  not  to  be  disaffirmed,  §  36. 

Orphan  asylums.     See  Orphan  Asylums. 

Period  of  minority  computed,  how,  §  26. 

Personalty  not  in  possession,  contracts  respecting,  §  33. 

Posthumous  child,  birth  of,  defeats  future  contingent  interest,  when, 
§  739. 

Posthumous  child,  property  rights  of,  §§  698,  739. 

Posthumous  child.     See  Posthumous  Children. 

Eeal  property,  contracts  respecting,  §  33. 

Savings  bank,  may  be  depositor  and  draw  dividends,  §  575. 


INDEX.  1123 

INFANTS.      (Continued.) 

Savings  bank,  may  own  stock  in,  §  575. 

Stock  of,  liow  represented  at  corporate  election,  §  313. 

Support  of,  out  of  accumulations  of  property,  §  726. 

Support,  mutual  liabilities  between  parent  and  child,  §  206. 

Support  of  child.     See  Parent  and  Child. 

Torts  of,  liability,  §  41. 

Unborn  child,  rights  of,  §  29. 

Wages,   assignment   of   by,   written    consent    of   parent    or   guardian 

necessary, §  955. 
Who  are  infants,  §  25. 

INFOEMATION.     See  Insurance. 
Nuisance,  for,  §§  3491,  3492. 
Regulated  by  Penal  Code,  §  3492. 

INHERITANCE.     See  Succession. 

Distribution  of  commusity  property  on   death  of  husband,  §  1402. 

Distribution  of  community  property  on  death  of  wife,  §  1401. 

Estate  of.     See  Eeal  Property. 

General  rules  of  descent,  §  1386. 

Illegitimate  child,  by.     See  Legitimacy. 

Posthumous  children,  by.     See  Posthumous  Children. 

Words  of,  not  necessary  to  pass  fee,  §  1072. 

INJUNCTION. 

Allowed  in  what  cases,  §§  3366,  3422. 

Allowed,  not,  in  what  cases,  §  3423. 

Contract,  breach  of,  when  not  enjoined,  §  3423. 

Court  of  another  state,  proceedings  in,  not  stayed,  §  3423. 

Federal  courts,  proceedings  in,  not  restrained,  §  3423. 

Forfeiture,  not  enforced,  §  3369. 

Grounds  for  granting,  §  3423. 

Is  provisional  or  final,  §  3420. 

Judicial  proceedings,  not  stayed,  §  3423. 

Legislative  act  of  municipal  corporation,  not  restrained,  §  3423. 

Multiplicity  of  suits,  to  prevent,  §§  3422,  3423. 

Nuisance,  prevention  of,  §  3369. 

Office,  when  not  granted  in  cases  respecting,  §  3423. 

Penal  law,  not  granted  to  enforce,  §  3369. 

Penalty,  not  enforced  by,  §  3369. 

Preventive  relief  granted  as  provided  by  laws  of  state,  §  3366. 

Preventive  relief  granted  only  in  cases  specified  in  code,  §  3274. 

Preventive  relief,  how  given,  §  3368. 

Preventive  relief  is  granted  by,  §  3420. 

Preventive  relief.     See  Preventive  Relief. 

Provisional,  regulated  by  Code  of  Civil  Procedure,  §  3421. 

Statute,  enforcement  of  not  restrained,  §  3423. 

Trust,  in  case  respecting,  §  3422. 

Where  pecuniary  compensation  difficult  to  ascertain,  §  3422. 

Where  pecuniary  compensation  would  not  afford  relief,  §  3422. 

INJURY.     See  Damages. 

Contract  for  exemption  from,  §  1668. 

Obligation   to  abstain   from,  §  1708. 

Right  of  protection  from,  §  4.3. 

Right  to  defend  from,  §  50. 

Threat  of,  renders  contract  voidable,  §§  1569,  1570. 

INLAND  NAVIGATION  INSURANCE.     See  Insurance  Corporation. 


1124  INDEX. 

INNKEEPER.     See  Inns. 

Baggage,  lien  on,  how  enforced,  §  1861. 

Baggage,  lien  on,  rights  where  baggage  not  property  of  guest,  s  1S61. 

Baggage,  have  lien  on  for  unpaid  charges,  §  1861. 

Baggage,  sale  of  for  charges,  proceedings  and  disposition  of  proceeds, 

§  1861. 
Baggage,  sale  of  for  charges,  proceedings  bar  action  against,  §  1861. 
Charges,  for  what  services  only  can  be  made,  §  1863. 
Charges,  improper,   damages,  §  1863. 
Charges,  posting  statement   of,  §  1863. 
Depositaries  for  hire,  liability  is  that  of,  §  1859. 
Liability  of,.§§  1859,1860. 
Liability  of,   exemption   from,   on   keeping  safe   and  posting  notice, 

§  1860. 
Luggage,  limitation   of  liability  for,  §  1859. 
Sale  of  unclaimed  baggage,  procedure  for,  and  disposition  of  proceeds, 

§  1862. 
Sale  of  unclaimed    baggage,    right    of,  §  1862. 

INNS.     See  Innkeepers. 

All  citizens  to  have  equal  rights,  §  51. 

Denial  of  equal  rights,  punishment,  §  52. 

Inciting  denial  of  equal  rights,  punishment,  §  52. 

Limitation  of  liability  for  valuables,  where  receipt  not  given,  §  1860. 

INSANE  PERSONS. 

Agency  terminated  by  incapacity  of  parties,  §§  2355,  2356. 

Asylum,  proceedings  when  placed  in,  by  superior  court,  §  258. 

Asylum,  right  of  investigation  before  jury  when  placed  in,  §  258. 

Asylum,  superior  court,  power  to  place  in,  §  258. 

Contract,  competency  to,  §§  38,  39,  1556,  1557. 

Contracts  of  persons  not  entirelv  Avithout  understanding,  effect  of, 
§39. 

Contracts  of  persons  without   understanding,  effect  of,  §  38 

Contracts  of,  rescission  of,  §  39. 

Custody  of,  code  provisions  regulating,  §  32. 

Employment  terminated  by  incapacity  of  parties,  §§  1996,  1997. 

Exemi^lary  damages  against  insane  person,  §  1:1. 

Homestead  of,  application  for  order  to  sell  or  mortgage,  service  and 
publication  of,  §  1269b. 

Homestead  of,  may  be  sold  or  mortgaged  for  what  purposes,  §  1269a. 

Homestead  of,  petition  to  sell  or  mortgage,  subscription  and  verifica- 
tion of,  §  1269a. 

Homestead  of,  petition  to  sell  or  mortgage,  what  to  state,  §  1269a. 

Homestead  of,  public  administrator  representing  on  petition  to  sell 
or  mortgage,  fee  of,  §  1269b. 

Homestead  of,  public  administrator  when  to  represent,  on  petition 
to  sell  or  mortgage,  §  1269b. 

Homestead  of,  sale  or  mortgage  of,  bond  on,  §  1269c. 

Homestead  of,  sale  or  mortgage  of,  effect  of,  §  1269c. 

Homestead  of,  sale  or  mortgage  of,  report  and  confirmation,  §  1269c. 

Homestead  of,  sale  or  mortgage  of,  when  ordered,  §  1269c. 

Homestead  of,  sane  spouse  may  petition  to  sell  or  mortgage,  §  1269a. 

Insanity  revokes  proposal  to  contract,  §  1587. 

Lease  of  estate  of,  limit  of  term  of,  §  718. 

Marriage  license  not  to  issue  to,  §  69. 

Marriage  of,  annulment   of,  §  82. 

Necessaries,  liability  for,  §  38. 

Non-resident,  guardian  of  property  may  be  appointed,  §  244. 


INDEX.  1125 

INSANE  PERSONS.      (Contiuued.) 

Powers  of,  after  incapacity  adjudged,  §  40. 

Proposal,  insanity  revokes,  §  1587. 

Eescission  of  contracts  of,  §  39. 

Restoration,  certificate  of,  evidence  of  legal  capacity,  §  40. 

Stock  of,  how  represented  at  corporate  election,  §  313. 

Superior  court  may  appoint  guardian  of,  in  what  cases,  §  243. 

Torts  of,  liability,  §  41. 

Trustee  discharged  by  iiisanity,  §  2282. 

INSOLVENCY.     See  Assignment  for  Creditors;  Fraudulent  Conveyance. 
Consignor  rhay  stop  goods  in  transit  on,  of  consignee,  §  3076. 
Defined,  §§  3077,   3450. 
Of  consignee,  what   constitutes,  §  3077. 
Of  principal   in    guaranty,    removal    from    state,    when    amounts    to, 

§  2802. 
Of  special  partnership,  §  2491. 

Of  special  partnership,  preferential  assignments  forbidden,  §  2496. 
Stoppage  in  transit  in  case  of,  §§  3076-3080. 

INSPECTION. 

Of  things  sold  with  warranty,  §  1785. 

INSTRUMENTS. 

Action  to  obtain  judgment  proving  instrument,  §  1203. 
Acts   curing  defects   in,  §  1207. 

Affecting  title  to  real  property,  ownership  of,  §  994. 
Burden  of  proof  of  showing  want  of  consideration,  §  1615. 
By  attorney  in  fact,  executed,  how,  §  1094. 
By  married  women,  acknowledged,  how,  §  1093. 
Cancellation  of,  in  general,  §§  3412-3414. 
Certain  non-negotiable  written,  transferable,  §  1459. 
Code  does  not  affect  instruments  made  before,  §§  1205,  1206. 
Containing  condition  wrong  per  se,  void,  §  709. 
Distinction  between  sealed  and  unsealed  abolished,  §  1629. 
Evidencing  title  declared  by  judgment,  how  proved  by  record,  §  1159. 
Handwriting  may  be  proved,  when,  §  1198. 
In  writing  prima  facie  import  consideration,  §  1614. 
Judgment  proving,  action  to  obtain,  §  1203. 
Non-negotiable  written  instruments,  transferability,  §  1459. 
Officers  authorized  to  take  proof  of,  powers  of,  §  1201. 
Proof  of,  action  for,  and  effect  of  the  judgment,  §§  1203,  1204. 
Proof  of  execution  of,  how  made,  §§  1185,  1198. 
Proof  of  execution  of,  when  not  acknowledged,  §  1195. 
Proof  of,  witness  to  prove  what,  §  1197. 

Proved  by  other  than  subscribing  witness,  how  recorded,  §  1162. 
Unrecorded,  valid  as  between  parties  with  notice,  §  1217. 
Warranty  on  sale  of,  §  1774. 

Witness,   proving   to   be   personally   known    to   officer   taking   proof, 
§  1196. 

INSULT. 

Right  of  protection  from,  §  43. 


1126  INDEX. 

INSURANCE. 

I.  Object,  definition  and  kinds  of;  code  provisions  governing. 
II.  Parties  to;  who  may  insure  or  be  insured. 
m.  Insurance  by   agent,   factor,   mortgagor,  part  owner,   partner,   or 

trustee. 
IV.  Validity,  avoidance,  and  rescission  of. 
V.  Insurable  interest;  what  may  be  insured  against. 
VI.  Concealments  and  representations. 
VII.  Warranties. 
VIII.  Policy. 
IX.  Premium. 

X.  Change  or  transfer  of  interest. 
XI.  Over-insurance;   double  insurance;   reinsurance. 
XII.  Loss. 

XIII.  Questions  relating  particularly  to  fire  insurance. 

XIV.  Questions  relating  particularly  to  life  insurance. 
XV.  Questions  relating  particularly  t9  marine  insurance. 

Commissioner.     See  Insurance  Commissioner. 
Corporations.     See  Insurance  Corporation. 

I.  Object,  definition  and  kinds  of;  code  provisions  governing. 

Accident  companies.     See  Insurance  Corporations. 
Code  provisions  govern  all  kinds  of  insurance,  §  2534. 
Defined,  §  2527. 

Fraternal  societies  exempt  from  insurance  laws,  §  451. 
Indemnity,  §§  2772-2777. 

Insurance  corporations,  particular  kinds  of.     See  Insurance  Corpora- 
tions; also  the  particular  tiile. 
Kinds  of,  §  2533. 

Sole  object  of  is  indemnitj-  of  insured,  §  2551. 
Title  insurance  companies.     See  Title  Insurance  Corporations. 

II.  Parties  to;  who  may  insure  or  be  insured. 

Any  one  except  public  enemy  may  be  insured,  §  2540. 

Description  of  insured  in  general  terms,  who  only  can  claim  benefit 

of,  §  2592. 
Insured,  who  is,  §  2538. 
Insured,  who  may  be,  §  2540. 
Insurer,  who  is,  §  2538. 
Parties  are  insured  and  insurer,  §  2538. 

Special  partnership  cannot  be  formed  for  business  of,  §  2477. 
Successive  owners,  policy  may  be  so  framed  as  to  inure  to,  §  2592. 
Who  may  insure,  §  2539. 
Whose  interest  is  covered  by  policy,  §  2588. 

III.  Insurance   by    agent,    factor,    mortgagor,    part    owner,    partner,    or 

trustee. 

Agent,  by,  form  of  policy,  §  2589. 

Fac-tor  may  insure,  §  2368. 

Mortgaged  property,  insurance  on,  §  2541. 

Mortgagor,   insurance   by  in  his   own  name,  payable  to  mortgagee, 

effect  of,  §  2541. 
Mortgagor,  insurance  bv  payable  to  mortgagee,  acts  of  mortgagor, 

effect  of,  §§2541,  2542. 


INDEX.  1127 

INSURANCE.  III.  Insurance  by  agent,  factor,  mortgagor,  part  owner, 
partner,  or  trustee.     (Continued.) 

Mortgagor,  insurance  by  payable  to  mortgagee,  mortgagee  may  per- 
form acts  required  of  mortgagor,  §  2541. 

Mortgagor,  transfer  of  insurance  by  to  mortgagee,  and  new  contract 
with  assignee,  effect  of,  §  2542. 

Partner,  by,  rights  of  copartner,  form  of  policy,  §  2590. 

Part  owner,  by,  rights  of  co-owner,  form  of  policy,  §  2590. 

Trustee,  by,  form  of  policy,  §  2589. 

IV.  Validity,  avoidance,  and  rescission  of. 

Agreement  before  loss  not  to  transfer  claim,  is  void,  §  2599. 

Avoidance,  policy  may  provide  for  on  violation  of  provisions,  §  2611. 

Breach  of  immaterial  provisions  does  not  avoid,  §  2611. 

Breach  of  warrant.     See  post,  VII. 

Fraudulent   valuation   in    marine   insurance,   rescission    of    contract, 

§  2736. 
Gaming  policy,  void,  §  2558. 
Rescind,  time  for  exercising  right  to,  §  2583. 
Rescission  for  alteration  increasing  risk,  §  2753. 
Rescission  for  concealment,  §§  2562,  2569-. 
Rescission  for  false  representation,  §  2580. 

Rescission  for  fraudulent  valuation  in  marine  insurance,  §  2736. 
Rescission  for  violation  of  material  provision  in  policy,  §  2610. 
Rescission  for  violation  of  material  warranty,  §  2610. 
Rescission  where  representation  in  marine  policy  intentionally  false, 

§  2676. 
Return  of  premium  where  policy  voidable  for  fraud,  §  2619. 
Stipulation  for  payment  irrespective  of  interest,  void,  §  2558. 
Stipulation  that  policy  is  evidence  of  insurable  interest,  void,  §  2558. 
Void,  if  without  insurable  interest,  §  2551. 

V.  Insurable  interest;  what  may  be  insured  against. 

Contingent   or   expectant   interest,   right    to   insure    against,  §§  2531, 

2547,  2549. 
Insurable  interest  defined,  §  2546. 
Insurable  interest,  existing  interests,  §  2547. 
Insurable  interest  in  case  of  marine  insurance.     See  post,  XV. 
Insurable  interest  in  expectancy,  §§2531,  2547,  2549. 
Insurable  interest  in  inchoate  interest,  §  2547. 
Ifasurable  interest  in  life,  §  2763. 

Insurable  interest  in  life,  assignment  to  one  without,  §  2764. 
Insurable  interest  in  property,   what   constitutes,  §§  2546,  2547. 
Insurable  interest,  insurance  without,  void,  §  2551. 
Insurable  interest  may  consist  in  what,  §  2547. 
Insurable  interest,  measure  of,  §  2550. 
Insurable  interest  of  carrier  or  depositary,  §  2548. 
Insurable    interest,    stipulation    for    payment   irrespective    of,    void, 

§  2558. 
Insurable  interest,  stipulation  that  policy  is  evidence  of,  void,  §  2558. 
Insurable  interest,  time  when  must  exist,  §  2552. 
Lottery  or  lottery  prize,  not  insurable,  §  2532. 
Unknown  events,  what  may  be  insured  against,  §  2531. 
What  events  may  be  insured  against,  §  2531. 

VI.  Concealments  and  representations. 

Code  provisions  as  to,  apply  to  modification  of  contract,  §  2582. 

Concealment  defined,  §  2561. 

Concealment  entitles  party  to  rescission,  §  2562. 


1128  INDEX. 

INSURANCE.     VI.  Concealments  and  representations.     (Continued.) 

Concealment,  faets  which  need  not  be  disclosed,  §  2564. 

Concealment,  fraudulent  omission  to  communicate  facts,  rescission, 
§  2569. 

Concealment,  information  as  to  interest  of  assured,  necessity  of  com- 
municating, §  25GS. 

Concealment,  information  of  one's  own  judgment  need  not  be  com- 
municated, §  2570. 

Concealment  in  marine  insurance.     See  post,  XV. 

Concealment,  materiality   of   facts,   test   of,  §  2565. 

Concealment,  matters  of  opinion  need  not  be  communicated,  §  2570. 

Concealment,  provisions  as  to  applv  to  modification  of  contract, 
§  2582. 

Concealment,  right  to  information  of  material  facts,  when  waived, 
§2567. 

Concealment,  what  facts  to  be  disclosed,  §  2563. 

Disclosed,  facts  that  must  be,  §  2563. 

Disclosed,  facts  that  need  not  be,  §  2564. 

Fraudulent  omission  to  communicate  facts,  rescission  for,  §  2569. 

Interest  of  insured,  necessity  of  communicating,  §  2568. 

Materiality  of  facts,  test  of,  §  2565. 

Matters  each  party  bound  to  know,  §  2560. 

Matters  that  must  be  disclosed,  §  2563. 

Matters  that  need  not  be  communicated  without  inquiry,  §  2564. 

Omission  to  communicate  facts,  intentional  or  fraudulent,  rescission 
for,  §  2569. 

Eepresentation  as  to  facts  concerning  which  one  has  no  personal 
knowledge,  liability,  §  2578. 

Eepresentation  as  to  future,  effect  of,  §  2574. 

Eepresentation,  false,  when  deemed  to  be,  §  2579. 

Eepresentation,  falsity,  effect  of,  §  2580. 

Representations  iu  marine  insurance.     See  post,  XV. 

Eepreseutations,  interpretation,  rules  for,  §  2573. 

Eepresentation,  materiality  of,  how  determined,  §  2581. 

Eepresentation  may  be  altered  or  withdrawn,  when,  §  2576. 

Eepresentation  may  be  at   time   of  issuing  policy   or  before,  §  2572. 

Eepresentation  ma,y  be  oral  or  written,  §  2571. 

Eepresentation  may  not  qualify   express   provision   of   policy,  §  2575. 

Eepresentation  may  qualify   implied   warranty,  §  2575. 

Eepreseutations  provisions  as  to  apply  to  modification  of  contract, 
§  2582. 

Eepresentation  refers  to  what  time,  §  2577. 

Eepresentation,  return  of  premium  where  policy  voidable  for  mis- 
representation, §  2619. 

Usages,  general,  of  trade,  each  party  bound  to  know,  §  2566. 

Waiver  of  right  to  information  of  material  facts,  §  2567. 

VII.  Warranties. 
Breach  of  warrantv  in  its  incei)tion  jirevents  policy  from  attaching, 

§  2612. 
Breach  without  fraud,  effect  of,  §  2612. 
Express,  must  be  in  policy  or  in  instrument  signed  and  referred  to 

in,  §  2605. 
Express  or  implied,  are,  §  2603. 
Form  of,  §  2604. 

Future,  statement  as  to.  effect  of,  §  2608. 
jVo   particular  form  of  words  necessary  to,  §  2604. 
Past  or  present,  statement  as  to,  effect  of,  §  2607. 
Past,  present  or  future,  nmy  relate  to,  §  2606. 


INDEX.  1129 

INSURANCE.     VII.  Warranties.     (Continued.) 

Performance  of,  relating  to  future,  excused,  when,  §  2609. 
Eepresentation  may  qualify  implied  warranty,  §  2575. 
Statements,  wdiat,  amount  to  warranties,  §§  2607,  260S. 
Violation  of,  avoids  policy,  §  2610. 
Violation  of,  policy    may    pro\ide    for    avoidance,  §  2611. 

VIII.  PoUcy. 

Defined,  §  2586. 

Description    of    insured    in    general    terms,    who    can,   claim    benefit, 

§2591. 
Form  of,  on  insurance  by  agent,  §  2588. 

Form  of,  on  insurance  b.y  part  owner  or  copartner,  §  2590. 
Form  of,  on  insurance  by  trustee,  §  2589. 
How  issued  and  signed,  §  -416. 
Material  violation  avoids,  §  2610. 
May  provide   for  avoidance,  §  2611. 
Not  transferred  by  transfer  of  thing  insured,  §  2593. 
Open,  defined,  §  2595. 
Open  or  valued,  policies  are,  §  2594. 
Open  policy,  marine,  estimating  loss  under,  §  2741. 
Eunning,  defined,  §  2597. 
Transfer  of  thing  insured,  effect  of,  §  2593. 
Valued  policy,  and  rights  and  liabilities  under,  §  2757. 
Valued  policy,  defined,  §  2596. 
Valued  policies.     See  post,  XIII,  XV. 
What  must  be  stated  in,  §  2587. 
Whose  interest  covered  by,  §  2588. 

IX.  Premium. 

Contribution  on  return  of  on  over-insurance,  §§  2621,  2622. 

Earned,  when,  §  2616. 

Effect  of  acknowledging  receipt  of,  in  policy,  §  2598. 

How  payable  to  mutual  life,  etc.,  company,  §  446. 

Eeceipt  of  premium,  effect  of  acknowledging  in  policy,  §  2598. 

Eeturn  of,  because  of  ignorance  of  facts,  §  2619. 

Eeturn  of  entire  premium,  insured  when  entitled  to,  §  2617. 

Eeturn  of,  for  fraud,  §  2619. 

Eeturn  of  on  surrender  of  policy  for  definite  term,  §  2617. 

Eeturn  of,  when  allowed,  §  2617. 

Eeturn  of,  when  not  allowed,  §  2618. 

Eeturn  of  when   over-insurance   by   several   insurers,  §  2620. 

Eeturn  of  where  liability  never  incurred  under  policy,  §  2619. 

X.  Change  or  transfer  of  interest. 

Alienation,    joint    owners,    or    partners,    transfer    between    does    not 

avoid,  §  2557. 
Change  of  interest  after  loss,  effect  of,  §  2554. 
Change   of  interest   between   partners,   joint   owners,   etc.,   effect   of, 

§2557. 
Change  of  interest  by  death  of  insured,  §  2556. 
Change  of  interest  in  one   of  several   things,  §  2555. 
Change  of  interest  in   thing  insured,   effect  of,  §§  2553-2557. 
Co-tenants,  transfer  of  interest  between,  does  not  avoid,  §  2557. 
Mortgagee,  assignment  to  of  policy,  effect  of,  §  2541. 
Partners,  transfer  between  does  not  avoid,  §  2557. 
Policy,  transfer  of  thing  insured,  effect  of,  §  2593. 
Successive  insurances,  policies  contemplating,  §  2597. 
Successive  owners,  policy  may  be  drawn  to  inure  to,  §  2592. 


1130  INDEX. 

INSURANCE.     X.  Change  or  transfer  of  interest.     (Continued.) 
Transfer  claim,  contract  before  loss  not  to,  is  void,  §  2599. 
Transfer  of  insured  thing  does  not  transfer  policy,  §  2593. 
Transfer  of  interest  in  part  of  thing  insured,  effect  of,  §  2553. 
Transfer  of  thing  insured,  effect  of,  §§  2553-2557,  2593. 

XI.  Over-insurance;  double  insurance;  reinsurance. 

Over-insurance,  contribution   to  premium,  §§  2621,   2622. 

Over-insurance,  return  of  premium,  §  2620. 

Double,  contribution,  §  2642. 

Double,  defined,  §  2641. 

Reinsurance,  §§  426,  428. 

Reinsurance  defined,  §  2646. 

Reinsurance,  disclosures  required,  §  2647. 

Reinsurance,  original  insured   has   no  interest  in,  §  2649. 

Reinsurance  presumed  to  be  against  liability,  §  2648. 

XII.  Loss. 

Agreement  before  loss  not  to  transfer  claim  is  void,  §  2599. 

Certificate  of,  when  dispensed  with,  §  2637. 

Excepted  perils,  §  2628. " 

Exoneration  of  insurer,  what  amounts  to.  §  2629. 

Incurred  in  rescue  from  peril  insured  against,  insurer  liable,  §  2627. 

Interest  covered  by  policy,  §  2588. 

Marine  insurance,  in.     See  post,  XV. 

Negligence  does  not  exonerate  insurer,  §  2629. 

Notice  of,  §§  2633-2637. 

Notice  of,  defects  in,  waived  when,  §  2635. 

Notice  of,  effect  of  delay  to  give,  §  2633. 

Notice  of,  to  be  given  without  delay,  §  2633. 

Notice  of,  waiver  of  defects  in,  §  2635. 

Notice  of,  waiver  of  delay  in,  §  2636. 

Partial,  under  valued  policy,  §  2757. 

Perils,  excepted,  cover  what  losses,  §  2628. 

Perils,  loss  in  rescuing  from.  §  2627. 

Perils,  remote  and  proximate,  §  2626. 

Preliminary  proofs,  §§  2634-2637. 

Preliminary  proofs  of,  certificate  or  testimony  of  third  person,  dis- 
pensed with  when,  §  2637. 

Preliminary  proofs  of,  certificate  or  testimony  of  third  person,  rea- 
sonable diligence  to  procure,  sutficient,  §  2637. 

Preliminary  proofs  of,  defects  in   waived,  when,  §  2635. 

Preliminary  proofs  of,  delay   in    waived,    when,  §  2636. 

Preliminary  proofs  of,  suflHciency  of,  §  2634. 

Remote  and  proximate  cause.  §  2626. 

Willful  act  of  insured  exonerates  insurer,  §  2629. 

XIII.  Questions  relating  particularly  to  fire  insurance. 

Acts  increasing  risk  but  not  violating  policy,  effect  of,  §  2755. 
Alteration  increasing  risk  without  consent,  rescission  for,  §  2753. 
Alteration  not  increasing  risk  does  not  affect,  §  2754. 
Contribution    in    case    of    domestic   insurance,    effect   of   insolvencv, 

§  2642. 
Double  insurance,  contribution  in  case  of,  §  2642. 
Effect  of  valuation  in  policy,  §§  2756.  2757. 
Examination  of  premises  by  insured,  and  value  fixed,  §  2757. 
Eire  insurance  corporations.     See  Ins^urance  Corporations. 
Fire  patrol,  underwriters  may  establish.     See  Fire  Patrol, 


INDEX.  1131 

INSURANCE,    xm.  Questions  relating  particularly   to  fire   insurance. 

(Continued.) 
Increase   of   risk,   acts   effecting   an,   but   not   violating   the   policy, 

§  2755. 
Increase  of  risk,  alterations  that  do  not  effect  an,  effect  of,  §  2754. 
Increase  of  risk,  alterations  that  effect  an,  effect  of,  §  2753. 
Insurable  interest.     See  ante,  V. 
Measure  of  indemnity,  §  2756. 
Mortgagor,  insurance  by,  for  benefit  of  mortgagee,  effect  of,  and  of 

acts  of  mortgagor,  §  2541. 
Mortgagor,  assignment  of  policy  by  to  mortgagee,  effect  of  and  of  acts 

of  mortgagor,  §  2541. 
Mortgagor,   insurance   by,   right   of   mortgagee   to    perform   acts   re- 
quired of  mortgagor,  §  2541. 
Notice  of  loss  to  be  given  without  unnecessary  delay,  §  2633. 
Partial  loss  in  valued  policy,  amount  to  be  paid,  §  2757. 
Property  which  may  be  insured,  §  426. 
Reinsurance,  §§  426,  428. 
Valuation,  clause  stating  that  value  has  been  fixed,  to  be  inserted, 

when,  §  2757. 
Valuation,  contribution  where  several  policies,  §  2757. 
Valuation,  does  not  prevent  stipulation  as  to  repairing,  rebuilding, 

or  replacing,  §  2757. 
Valuation,  effect  of,  §  2756. 
Valuation,  expense  of,  insured  to  paj',  §  2757. 
Valuation,   insurer   not   required   to   pay   more   than   amount   stated, 

§  2757. 
Valuation,  partial  loss,  amount  to  be  paid,  §  2757. 
Valuation,  total  loss,  whole  amount  to  be  paid,  §  2757.  . 

Value  of  interest,  how  may  be  fixed,  §  2757. 

XIV.  Questions  relating  particularly  to  life  insurance. 

Assessment  companies.  See  cross-references  under  Assessment  In- 
surance. 

Assignment  for  creditors,  insurance  upon  life  does  not  pass,  §  3470. 

Assignment  or  bequest  of  policy,  §§  2764,  2765. 

Assignment,  necessity  of  notice  of,  §  2765. 

Does  not  pass  on  assignment  for  creditors,  §  3470. 

Health  insurance.     See  Insurance  Corporations. 

Insurable  interest,  in  life  and  health,  who  has,  §  2763.     See  ante,  V.  ^ 

Life.     See  Insurance  Corporations. 

Measure  of  indemnity.  §  2766. 

Non-forfeiture  clause,  §  450. 

Paid-up  policy,  right  to,  §  450. 

Life,  provision  for  paid-up  policy  on  default  after  three  payments, 
§  450. 

Life,  provision  for  paid-up  policy  on  default,  effect  of  failure  to  in- 
sert, §  450. 

Life,  provision  for  paid-up  policy  on  default,  not  waived  by  con- 
tract, §  450. 

Life,  requirement  of  paid-up  policy  on  default  does  not  apply  to  an- 
nuities, industrial  policies  or  term  contracts,  §  450. 

Premium,  how  payable  to  mutual  life,  etc.,  company,  §  446. 

Surrender  of  policy  for  cash  sum  on  default  after  three  payments, 
§450. 

"When  may  be   made  payable,  §  2762. 

XV.  Questions  relating  particularly  to  marine  insurance. 

Abandonment,  acceptance  not  presumed  from  silence,  §  2727, 
Abandonment,  acceptance  of,  admits  what,  §  2728. 


1132  INDEX. 

INSURANCE.     XV.  Questions  relating  particularly  to  marine  insurance. 
(Continued.) 

Abandonment,  acceptance  of  conclusive,  §  2728. 

Abandonment,  acceptance  of  not  necessary,  §  2727. 

Abandonment,  accepted,  is  irrevocable,  §  2729. 

Abandonment,  agent's  acts  after,  effect  of,  §  2726. 

Abandonment,  agents  of  insured  become  agents  of  insurer,  §  2726. 

Abandonment  defined,  §  2716. 

Abandonment,  effect  of,  where  information  incorrect,  §  2720. 

Abandonment,  eft'eet  of,  where  thing  abandoned  was  restored,  §  2720. 

Abandonment,  equivalent  to  transfer  to  insurer,  §  2724. 

Abandonment  ineffectual,  when,  §  2720. 

Abandonment  is  defeated,  when,  §  2717. 

Abandonment,  liability  of  insurer  after,  §  2726. 

Abandonment  made,  how,  §  2721. 

Abandonment  must  be  absolute,  §  2718. 

Abandonment  must  not  be  partial  or  conditional,  §  2718. 

Abandonment,  no  other  cause  than  specified  can  be  relied  on,  §  2723. 

Abandonment,  notice,  is  made  by,  §  2721. 

Abandonment,  notice  of  may  be  oral  or  written,  §  2721. 

Abandonment,  notice  of  need  not  contain  proof  of  interest  or  loss, 
§  2722. 

Abandonment,  notice  of,  not  necessary  on  total  loss,  §  2709. 

Abandonment,  notice  of,  requisites  of,  §  2722. 

Abandonment,  notice  of,  what  to  specify,  §  2722. 

Abandonment  not  presumed  from  mere  silence,  §  2727. 

Abandonment  of  freightage,  right  of,  §  2717. 

Abandonment  of  particular  portion  separately  valued,  when  proper, 
§  2717. 

Abandonment  of  ship,  effect  on  freightage,  §  2730. 

Abandonment,  omission  to  make,  right  of  recovery,  §  2732. 

Abandonment,  refusal   to   accept,  liability   on,  §  2731. 
■    Abandonment,  requisites  of  notice  of,  §§  2722,  2723. 

Abandonment,  time  within  which  to  be  made,  §  2719. 

Abandonment,  waiver  of  formal,  §  2725. 

Abandonment,  when  proper,  §  2717. 

Against  actual  total  loss  covers  what,  §  2712. 

Average,  general,  §§  2148-2155.     See  General  Average. 

Average  loss,  general,  liability  for,  §  2711. 
#         Average,  particular,  insurance  free  from,  effect  of,  §  2711. 

Average,  particular,  insurance  free  from,  liability  for  general  aver- 
age loss,  §  2711. 

Charterer  has  insurable  interest,  §  2665. 

Charter-partv,  insurable  interest  exists  under,  §  2663. 

Concealment,  effect  of,  §  2672. 

Concealments  affect  only  risk  in  question,  when,  §  2672. 

Concealments  do  not  vitiate  entire  policy,  when,  §  2672. 

Contribution  in  case  of  double  insurance,  effect  of  insolvency,  §  2642. 

Contribution  in  case  of  partial  or  average  loss,  §  2642. 

Contribution,  indemnity  where  insured  has  right  of,  §  2745. 

Contribution,  subrogation  of  insurer,  §  2745. 

Course  of  sailing  determined,  how,  §  2693. 

Definition  of  marine  insurance,  §  2655. 

Deviation,  defined,  §  2694. 

Deviation  exonerates  insurer,  §  2697. 

Deviation,  improper,  when,  §  2696. 

Deviation,  proper,  when,  §  2695. 

Documents    casting   suspicion    on    nationality    or   neutrality,   not    to 
carry,  §  2688. 


INDEX,  1133 

INSURANCE.     XV.  Questions  relating  particularly  to  marine  insurance. 

(Contiuued.) 

Documents  showing  nationality  and  neutrality,  duty  to  carry,  §  2688. 

Double  insurance,  contribution  in  case  of,  §  2642. 

Double  insurance,  order  of  liability,  §  2642. 

Double  insurance,  policies  deemed  to  be  simultaneous,  wben,  §  2642. 

Expense  and  labor,  liability  of  insurer  for,  §  2743. 

False  representation  in  policy,  rescission  for,  §  2676. 

Fraudulent  valuation,  rescission  of  contract  for,  §  2736. 

Freightage,  expected,  insurable  interest  in,  §§  2662,  2663. 

Freightage  signifies  what,  §  2661. 

General  average  loss,  liai3ility  for,  §§  2711,  2744. 

Indemnity,  costs  of  repairs,  §  2743. 

Indemnity,  expenses  in  trying  to  recover  property,  §  2743. 

Indemnity,  general  average  loss,  liability  for,  §  2744. 

Indemnity,  loss,  rules  for  estimating  under  open  policy,  §  2741. 

Indemnity,  partial  loss,  liability  on,  §  2737. 

Indemnity,  profits,  measure  of  recovery  for,  §  2738. 

Indemnity,  profits,  valuation  of,  fixes  loss  where  property  lost,  §  2740. 

Indemnity,  profits,  valuation  of,  loss  presumed  from  loss  of  prop- 
erty, §  2740. 

Indemnity,  valuation,  apportionment  where  part  only  exposed  to 
risk,  §  2739. 

Indemnity,  valuation,  conclusiveness  of,  §  2736. 

Indemnity,  valuation,  where  hypothecation  by  bottomry  or  respon- 
dentia, §  2736. 

Indemnity,  where  cargo  insured  against  partial  loss  arrives  dam- 
aged, §  2742. 

Indemnity,  where  insured  has  right  of  contribution,  §  2745. 

Information  communicated  to  be  exact  and  state  whole  truth,  §  2669. 

Information  of  belief  or  expectation  of  third  person,  when  material, 
§  2670. 

Information,  what  must  be  communicated,  §  2669. 

Insurable  interest  in  expected  freightage,  §§  2662,  2663. 

Insurable  interest  in  profits,  §  2664. 

Insurable  interest  of  charterer,  §  2665. 

Insurable  interest,  owner  has,  where  ship  chartered,  §  2659. 

Insurable  interest  reduced  by  bottomry,  §  2660. 

Insurable  interest  under  charter-party,  §  2663. 

Labor  and  expenses,  liability  of  insurer  for,  §  2743. 

Liability  where  cargo  reshipped,  §  2707. 

Loss,  average,  §  2711. 

Loss,  contribution  in  case  of  partial  or  average,  §  2642. 

Loss  may  be  total  or  partial,  §  2701. 

Loss,  partial,  anchors,  cannon,  and  sheathing  metal,  how  estimated, 
§  2746. 

Loss,  partial,  liability  on,  §§  2737,  2742. 

Loss,  partial,  measure  of  indemnity,  §§  2737,  2742. 

Loss,  partial,  one  third  new  for  old,  §  2746. 

Loss,  partial,  what  is,  §  2702. 

Loss,  particular  average,  agreement  that  property  free  from,  effect 
of,  §2711. 

Loss,  presumption  of,  from  absence,  length  of  time  suflicient  to  raise, 
§  2706. 

Loss,  presumption  of  from  continued  absence,  §  2706. 

Loss,  prior,  presumption  of  knowledge  of,  §  2671. 

Loss,  rules  for  estimating  under  open  policy,  §  2741. 

Lccs,  total  actual,  insurance  against,  covers  what  loss,  §  2712. 


1134  INDEX. 

INSURANCE,     XV.  Questions  relating  particularly  to  marine  insurance. 

(Continued.) 

Loss,  total  actual,  insurance  against,  does  not  cover  constructive 
total,  §  2712. 

Loss,  total,  actual  total  loss,  insured  entitled  to  payment  without 
notice  of  abandonment,  S  2709. 

Loss,  total,  actual  total  loss,  what  is,  §  2704. 

Loss,  total,  constructive  total  loss,  what  is,  §  2705. 

Loss,  total,  is  actual  or  constructive,  §  2703. 

Marine.     See  Insurance  Corporations. 

Marine  insurance  corporations.     See  Insurance  Corporations. 

Material  information,  what  is,  §  2670. 

Measure  of  indemnity  in  general,  §§  2736-2746. 

Neutral  papers,  duty  to  carry,  §  2688. 

On  cargo  when  voyage  broken  up,  §  2707. 

One  third  new  for  old,  exceptions  to  rule  of,  §  2746. 

Open  policy,  estimating  loss  under,  §  2741. 

Payment,  rights  of  insurer  on,  §  2725. 

Prior  loss,  knowledge  of,  presumption  of,  §  2671. 

Profits,  insurable  interest  in,  §  2664. 

Profits,  measure  of  recovery  for,  §  2738. 

Property  which  may  be  insured,  §  426. 

Reinsurance,  §§426,  428. 

Repairs,  cost  of,  liability  for,  §  2743. 

Representation  eventually  false,  effect  of,  §  2677. 

Representation  intentionally  false,  insurer  may  rescind  entire  con- 
tract, §  2676. 

Representation  of  expectation,  effect  of  falsity,  §  2677. 

Reshipmeut  when  voyage  broken  up,  liabilit}-,  §§  2707,  2708. 

Seaworthiness  as  to  cargo,  §  26S7. 

Seaworthiness  as  to  insurance  on  ship  and  unseaworthiness  as  to  in- 
surance on  cargo,  §  2687. 

Seaworthiness,  at  what  time  must  exist,  §  2683. 

Seaworthiness,  defined,  §  2682.' 

Seaworthiness,  different  degrees  of  at  different  stages  of  voyage, 
§  2685. 

Seaworthiness,  unseaworthiness  during  voyage,  delay  in  repairing 
exonerates  insurer,  when,  §  2686. 

Seaworthiness,  warranty  of,  §  2681. 

Seaworthiness,  what  required  to  constitute,  §  2684. 

Seaworthiness  where  cargo  is  to  be  transshipped,  §  2683. 

Ship's  manager  may  not  insure,  when,  §  2389. 

Simultaneous,  policies  when  deemed  to  be,  §  2642. 

Subrogation  of  marine  insurer,  §  2745. 

Successive  insurances,  contribution  in  ease  of  partial  or  average  loss, 
§  2642. 

Successive  policies,  order  of  liability,  §  2642. 

Unseaworthiness  occurring  in  voyage,  delay  in  repairing,  effect  of, 
§  2686. 

Valuation  applied  to  profits,  loss  conclusively  presumed  from  loss  of 
property, §  2740. 

Valuation,  apportioned  when  part  only  exposed,  §  2739. 

Valuation,  conclusiveness  of,  §  2736. 

Valuation,  fraudulent,  rescission  of  contract,  §  2736. 

Valuation  of  profits,  fixes  amount  of  loss  where  property  lost,  §  2740. 

Valuation  of  profits,  loss  presumed  from  loss  of  property,  §  2740. 

Valuation  where  hypothecation  by  bottomry  or  respondentia,  effect 
of,  §  2736. 

Voyage,  broken  up,  duty  of  master  to  reship,  §  2707. 


INDEX.  1135 

INSURANCE.     XV.  Questions  relating  particularly  to  marine  insurance. 

(Continued.) 
Voyage  broken  up,  liability  of  insurer  on  reshipment,  §§  2707,  2708. 
Voyage,  course  of  sailing,  how  determined,  §§  2692,  2693. 
Voyage  insured,  how  determined,  §§  2692,  2693. 
Warranty  of  neutrality,  §  2688. 
Warranty  of  seaworthiness,  §  2681. 
When   insured   entitled   to   payment,  §  2709. 

INSURANCE  COMMISSIONER. 

Duties  and  powers  regarding  mutual  assessment  corporations,  §  453  1. 

Expenses  in  connection  with  mutual  assessment  'corporations,  pre- 
sentment, allowance,  and  payment,  §  453o. 

Foreign  insurance  companies  on  assessment  plan.  See  Mutual  Life, 
health.  Accident,  and  Annuity  Companies  on  Assessment  Plan. 

Insurance  company  to  report  investments  to,  §  427. 

Mortgage  insurance  companies,  reports  of,  to,  §  453gg. 

Mortgage  insurance  corporations,  authority  in  relation  to.  See 
Mortgage  Insurance   Corporations. 

Power  of,   over  investments  by  insurance   corporations,  §  427. 

Title  insurance  corporations,  power  and  authority  over.  See  Title 
Insurance  Corporations. 

INSURANCE   COMPANIES.     See  Insurance;   Insurance  Corporations. 
Particular  kind  of  insurance.     See  particular  title. 

INSURANCE  CORPORATIONS.     See  Insurance. 
Accident,  investment  of  funds  by,  §  421. 
Accident  insurance.     See   Accident  Insurance. 
Act  relating  to  non-profit  co-operative   corporations  does  not  apply 

to,  §  653za. 
Assessments,  levying  and  collecting,  §  414. 
Assessments  on  stock,  limitation  of,  §  332. 
Benevolent  societies  exempt  from  insurance  laws,  §  451. 
Benevolent  societies  not  insurance   corporations,  §  451. 
Capital  and  accumulations,  how  invested,  §  421. 
Capital  stock,  subscription  to,  opening  books  of,  §  414. 
Capital  stock,  subscription  to,  securing,  §  414. 
Co-operative    business    associations,    provisions    relating    to,    do    not 

apply  to,  §  6531. 
Directors,  alteration  in  number  of,  §  443. 
Directors  liable  for  loss  on  insurance,  when,  §  418. 
Directors  liable  on  what  policies,  §  418. 
Directors,  not  to  be  less  than  five,  §  443. 
Dividends,  amounts  to  be  reserved  before  making,  §  429. 
Dividends,  of  what  and  when  declared,  §  417. 
Dividends,  of  what  not  to  be  declared,  §  417. 
Dividends,  when  only  to  be  declared,  §  452. 
Dividends  to  be  declared  from  profits  only,  §  429. 
Fire  and  marine,  assessment  of  stock,  extent  of  power  of,  §  332. 
Fire  and  marine,  capital  to  be  paid  in  cash  in  twelve  months,  §  424. 
Fire  and  marine,  certificate  of  capital  stock  to  be  filed,  and  when, 

§425. 
Fire  and  marine,  dividends,  amounts  to  be  reserved  before  making, 

§§  429,  430. 
Fire  and  marine,  extent  of  power  of  assessment,  §  332. 
Fire   and   marine,   investments,   approval   of,   entry   of  and   what   to 

show,  §  421. 
Fire  and  marine,  investments,  power  of  insurance  commissioner  over, 

§421. 


1136  INDEX.. 

INSURANCE  CORPORATIONS.      (Coutiuued.)  " 

Fire  aud  marine,  limitation  on  risivs,  §  42S. 

Fire  and  marine,  limit  on  one  rislv,  S  428. 

Fire  and  marine,  jiayment   of  subscriptions,  §  424. 

Fire  and  marine,  property  which  may  be  insured,  §  426. 

Fire  and  marine,  questions  rehitiug  particularly  to.  See  Insurance, 
XIII,  XY. 

Fire  aud  marine,  rate  of  risk,  §  42S. 

Fire  and  marine,  reinsurance,  §  426. 

Fire  and  marine,  reservations  by  companies  with  less  than  two  hun- 
dred thousand  capital,  §  430. 

Fire  and  marine,  risk,  limitation  on,  §  42S. 

Fire  and  marine,  ship  manager  cannot  insure  without  authority, 
§  2389. 

Fire  and  marine,  twenty-five  per  cent  of  capital  to  be  paid  up  be- 
fore policies  issued,  §§  419,  424. 

Fire,  county  fire  insurance  companies,  organization  aud  management 
of.     Appendix,  tit.   "Insurance." 

Fire  insurance,  fire  patrol,  rights  and  powers  as  to.     See  Fire  Patrol. 

Fire,  life,  health,  accident  aud  marine  insurance  companies,  accumu- 
lations, how  invested,  §  421,  subd.  5. 

Fire,  life,  health,  accident,  aud  marine  insurance  companies,  ap- 
proval of  investment  by  two  thirds  of  directors,  §  421,  subd.  6. 

Fire,  life,  health,  accident  and  marine  insurance  companies,  limit  on 
investments,  §  421,  subd.  6. 

Fire,  life,  health,  accident  and  marine  insurance  companies,  report 
of  investments,  §  421,  subd.  6. 

Health,  insurable  interest  in,  who  has,  §  2763. 

Health,  investment  of  funds  by,  §  421. 

Health,  notice  of  bequest  or  transfer  of,  not  necessary,  §  2765. 

Health,  policy  may  be  transferred  to  one  without  interest,  §  2764. 

Health,  transferee  may  recover  on,  §  2764. 

Inland  navigation  insurance,  dividends,  amount  to  be  reserved  be- 
fore making,  §  429. 

Insurance,  law  of,  in  general.     See  Insurance. 

Investment  must  not  e:sceed  market  value  of  securities,  §  421,  subd.  6. 

Investments,  funds,  how  may  be  invested,  §  421. 

Investments,  power  of  insurance  commissioner  over,  §  421,  subd.  6. 

Investments,  report  on  stocks  and  ])onds,  insurance  commissioner  nuiy 
require,  §  422. 

Investments,  stocks  aud  bonds,  authority  of  insurance  commissioner 
in  valuing  and  finality  of  finding,  §  422. 

Investments,  stocks  and  bonds,  how  valued.  §  422. 

Investments,  to  be  reported  to  insurance  commissioner,  §  421,  subd.  6. 

Fire  and  marine,  investments  by.     See  post.  Investments,  this  title. 

Investments,  fire  aud  marine  insurance  corporations,  investments, 
approval  of  directors,  entry  of  and  what  to  show,  §  421,  subd.  6. 

Investments,  fire  and  marine  insurance  corporation,  approval  of  two- 
thirds   of   directors,  §  421,    subd.    6. 

Investments,  fire  and  marine  insurance  corporations,  duty  to  report 
to  insurance  commissioner,  §  421,  subd.  6. 

Investments,  life  insurance  companies,  investments,  approval  of  two- 
thirds  of  directors,  §  421. 

Investment,  life  insurance  corporations,  investments,  approval  of 
directors,  entry  of,  and  what  to  show,  §  421,  subd.  6. 

Investments,  life  insurance  companies,  policy  loans  not  to  be  used 
as  security  which  may  be  deposited  with  insurance  commis- 
sioner, §  421. 


INDEX.  1137 

INSURANCE   CORPORATIONS.      ((Joiitinued.) 

Investments,  life  insurance  corporations,  report  of  to  insurance  eom- 
niissioner,  §  421,  subd.  6. 

Investments,  life  insurance  companies,  loans  upon  its  own  policies, 
§  421,  sub.l.  7. 

Investments,  life  in.surauce  company,  policy  loans,  cancellation  of 
registration  of  policy,  §  421,  subd.  '/. 

Investments,  life  insurance  companies,  policy  loans  not  security, 
wliicli  may  be  deposited  with  insurance  commissioner,  §  421,  subd. 
7. 

Investments,  mortgage  particix;ation  certificates  and  securities  guar- 
anteed by  policies  of  mortgage  insurance  as  legal  investments 
for  funds,  §  453  ff. 

Life,  amounts  to  be  reserved  before  declaring  dividends,  §  431. 

Life,   dividends  when  only  to  be  declared,  §  4.52. 

Life,  insurance  commissioner,  furnishing  data  to  for  valuation  of 
policies,  §  447. 

Life,  investment  of  funds  by,  §  421.  See  ante,  Investments,  this 
title. 

Life,  lapse,  non-forfeiture,  deduction  of  premiums  due,  §  4oU. 

Life,  lapse,  paid-up  policy,  proof  of  death  within  year,  §  450. 

Life,  lapse,  provision  for  non-forfeiture,  §  450. 

Life,  lap.se,  provision  for  paid-up  policy,  §  450. 

Life,  loans  on  its  own  policies,  §  421. 

Life,  non-forfeiture  clause,  §  450. 

Life,  policies,  i>ower  to  loan  on,  §  421,  suVjd.  7. 

Life,  policy,  loans,  provisions  concerning,  §  421,  subd.  7. 

Life,  policy  without  clau-ses  for  non-forfeiture  and  paid-up  policy, 
penalty  for  issuing,  §  450. 

Life,  premium,  non-payment,  right  to  paid-up  policy  after  three  pay- 
ments, §  450. 

Life,  proof  of  death  within  year,  §  450. 

Life,  questions  relating  jtarticularly  to.     See  Insurance,  XIV. 

Life,  right  to  paid-up  policy  after  three  payments,  §  450. 

Live-stock,  act  relating  to  life,  health,  and  accident  insurance  of,  on 
assessment  plan.     Appendix,  tit.  "Insurance." 

Loans  upon  policies,  §  421. 

Mortgage  insurance  corporations.  See  Mortgage  Insurance  Corpora- 
tions. 

Mutual  benefit  and  life  associations.  See  Mutual  Benefit  and  Life 
Associations. 

Mutual  fire  insurance  corporations,  act  providing  for  organization 
and  management  of.     Appendix,  tit.  "Insurance." 

Mutual  insurance  companies  for  insurance  of  life  and  health  and 
against  accident  of  live  stock.     Appendix,  tit.  "Insurance." 

Mutual  insurance  on  as.sessment  plan.  See  Mutual  Life,  Healtt, 
Accident  and  Annuity  Insurance  on  Assessment  Plan. 

Mutuallife,  faealtn,  and  accident,  in  general,  §§  437-451. 
Mutual  life,  etc.,   by-laws   may   limit   number   shares   one   may   hold, 
§  445. 

Mutual  life,  etc.,  by-laws  may  provide  for  protection  of  stockholders, 

§  445. 
Mutual  life,  etc.,  capital,   deficiency   in   profits   not   to   be   divided   in 
case  of, §  439. 

Mutual  life,  etc.,    capital  stock,  amount  of,  §  437. 

Mutual  life,  etc.,  capital  stock  to  be  j»aid  up  before  issuing  policies, 

§  437. 
Mutual  life,  etc.,  declaration  of  fixed  capital,  making,  filing,  publish- 
ing, §  440. 
Civ.  Code — 72 


1138  INDEX. 

INSURANCE  CORPORATIONS.      (Continued.) 

Mutual  life,  etc.,   declaration  of  fixed  capital,  what  to  show,  §  440. 

Mutual  life,  etc.,  directors  insured  entitled  to  vote  at  election  of, 
§  442. 

Mutual  life,  etc.,  directors  not  to  be  less  than  twelve,  §  443. 

Mutual  life,  etc.,  directors,  number  may  be  altered,  §  443. 

Mutual  life,  etc.,  distribution   of   stock,   where    over-subscribed,  §  437. 

Mutual  life,  etc.,  fixed  capital,  of  what  consists  and  deficiency  therein, 
§  439. 

Mutual  life,  etc.,  guarantee  fund,  §  437. 

Mutual  life,  etc.,  guarantee  fund  discharged  on  filing  certificate  of 
capital,  §  440. 

Mutual  life,  etc.,  guarantee  fund,  notes  as  constituting  and  restric- 
tions on,  §  437. 

Mutual  life,  etc.,  guarantee  fund  to  consist  of  what,  §  438. 

Mutual  life,  etc.,  guarantee  fund,  to  remain  fixed  and  not  subject  to 
division,  §  439. 

Mutual  life,  etc.,  guarantee  notes  and  interest,  how  disposed  of,  §  441. 

Mutual  life,  etc.,  guarantee   notes,  commission   and  interest,  §  441. 

Mutual  life,  etc.,  insured  entitled  to  vote,  when,  §  442. 

Mutual  life,  etc.,  policies  not  to  be  issued  until  what  time,  §  437. 

Mutual  life,  etc.,  policies,  right  to  paid-up  policy,  §  450. 

Mutual  life,  etc.,  policies  upon  basis  of  participation  in  profits,  §  446. 

Mutual  life,  etc.,  policy,  non-forfeiture  clause,  §  450. 

Mutual  life,  etc.,  premiums  payable,  how,  §  446. 

Mutual  life,  etc.,  provisions  for  security  of  persons  dealing  with, 
§  445. 

Mutual  life,  etc.,  rejection  of  subscription,  §  437.  '  * 

Mutual  life,  etc.,  stockholders,  provisions  for  protection  of,  §  445. 

Mutual  life,  etc.,  stock,  limit  on  number  of  shares  that  may  be  held, 
§  445. 

Mutual  life,  etc.,  subscription,  §  437. 

Mutual  life,  etc.,  surplus,  §  437. 

Policies,  binding  effect  of,  §  416. 

Policies,  by  what  officers  to  be  signed,  §  416. 

Policies,  how  issued,  §  416. 

Policies,  loans  upon,  §  421. 

Real  property,  restrictions  on  purchasing,  holding  and  conveying, 
§415. 

Seal,  policies  without,  §  416. 

Title  insurance  corporations.     See  Title  Insurance  Corporations. 

Trust  fund  to  be  deposited  with  state,  mortgage  participation  cer- 
tificates or  securities  guaranteed  by  policies  of  mortgage  insur- 
ance to  be  accepted,  §  453ff. 

INTEMPERANCE. 

Divorce  for,  §§  92,  107.     See  Divorce. 

INTENTION. 

Fraudulent,  question  of  fact,  §  3442. 

General  terms  restricted  by  main,  §  1648. 

How  ascertained,  §  1637. 

How  ascertained  in  revision  of  written  instrument,  §  3401. 

Of  grantor  in  ambiguous  grant,  §  1068. 

Of  testator,  §§  1317,  1370. 

Of  testator,  how  ascertained,  §  1318. 

Of  trustor,  necessary  to  creation  of  trust,  §  2221. 

Overrules  grammatical  construction,  §  1324. 

Overrules  technical  meaning,  §  1327. 


INDEX.  1139 

INTENTION.     (Continued.)    ' 

Particular  clauses  subordinate  to  general,  §  1650. 

Presumption  of,  to  destroy  or  cancel  contract,  §  1699. 

Eevision  of  contract  so  as  to  conform  to,  §  3399. 

Substantial  compliance  with,  sufficient,  §  1348. 

Superior  to  terms  of  written  contract,  when,  §  1640. 

To  deceive,  an  essential  element  of  fraud,  §  1572. 

To   desert,   not   always   co-existent   with   separation,  §  100. 

To  extinguish  old  obligation,  necesssary  in  novation,  §  1531. 

To  govern  interpretation  of  contract,  §  1636. 

To  make  ademption,  must  be  in  writing,  §  1351. 

When  ascertained  by  the  language,  §  1638. 

When  ascertained  by  the  writing  alone,  §  1639. 

Words  inconsistent  with,  rejected,  §  1653. 

INTEREST. 

Acceptance  of  principal  waives  claim  to,  §  3290. 

Annual  rate  where  no  time  fixed,  §  1916. 

Any  rate  agreed  on,  allowed  until  entry  of  judgment,  §  1918. 

Any  rate  may  be  agreed  on,  §  1918. 

Application  of,  §  1479. 

Bequest  of,  income  when  accrues,  §§  1366,  1370. 

Bottomry  contract,  rate,  §  3022. 

Bottomry,  court  may  reduce  if  exorbitant,  §  3022. 

Building  and  loan  corporation,  rate  of,  §§  634,  638. 

Cemetery  bonds,  rate  on,  §  611. 

Compound,  on  judgments  not  allowed,  |  1920. 

Compound,  parties  may  agree  for,  §  1919. 

Compound,  trustee's  liability  for,  §  2262. 

Computation  of^  what  deemed  to  be  a  year  in,-§  1917. 

Damages,  as,  §§  3288,  3302,  3304,  3305,  3306. 

Damages,  as  in  case  of  oppression,  fraud,  or  malice,  §  3288. 

Damages,  interest  on,  §  3287. 

Damages  prescribed  in  code  are  exclusive  of,  §  3357. 

Defined,  §  1915. 

Foreign  bill,  on  dishonor  of,  §  3236. 

Guaranty  notes  of  mutual  life  insurance  companies,  on,  §  441. 

In  action  ex  delicto,  §  3288. 

Judgment,  on,  §§  1917,  1918,  1920. 

Land  and  building  corporation,  §§  634,  638. 

Legacies,  on,  §§  1369,  1370. 

Legal  rate,  §  1917. 

Loans  by  building  and  loan  society,  on,  §  638. 

Offer  of  performance  stops,  §  1504. 

Protested  bill,  on,  §  3236. 

Presumed  on  loan,  §  1914. 

Principal,  acceptance  of,  waives  claim  to  interest,  §  3290. 

Principal,  agreement  that  interest  shall  become  part  of,  §  1919. 

Kailroad  bonds,  on,  §  456. 

Bate  after  breach  of  contract,  §  3289. 

Rate  after  verdict,  §  3289. 

Rate  agreed  on  allowed  until  entry  of  judgment,  §  1918. 

Rate  deemed  to  be  annual  where  period  not  fixed,  §  1916. 

Rate  in  absence  of  contract,  §  1917. 

Rate,  on  money  borrowed  by  homestead  corporation,  §  560. 

Rate,  parties  may  agree  for   any,  §  1918. 

Rate  stipulated  by  contract  runs  until  superseded  by  verdict  or  new 

obligation,  §  3289. 
Rate  stipulated  in  contract  runs  after  breach,  §  3289. 


1140  INDEX. 

INTEREST.      (Continued.) 

Eespondentia,  rate,  §  3039. 

Special  partner  entitled  to,  §  2494. 

Time  from  which  runs,  §  1917. 

Trust  companies,  payable  by.     Appendix,  tit.  "Banking,"  §  95. 

Trustee  liable  for,  if  omits  to  invest  trust  funds,  §  2262. 

Trustee's  liability  for,  to  beneficiary,  §  2237. 

"Waiver  of,  by  accepting  principal,  §  3290. 

Year,  what  deemed  to  be  in  computation  of,  §  1917. 

INTERESTS  IN  PROPERTY. 

Absolute,  §  679. 

Chattel,  §  765.  • 

Classification,  §  702. 

Denominated  estates,  §  701. 

Future,  §  690. 

Future  contingent,  §  695. 

Future  contingent,  may  be  a«lternative,  §  696. 

Future  contingent,  not  void  because  improbable,  §  697. 

Future,  how  defeated,  §§  739,  740. 

Future,  none  unless  specified,  §  703. 

Future,  pass  by  transfer,  §  699. 

Future,  right    of   posthumous   children,  §  698. 

Future  vested,  §  694. 

Future,  when  not  defeated  by  intermediate  acts,  §§  741,  742. 

In  common,  §  685. 

In  existing  trust,  liow  transferred,  §  1135. 

In  ship,  how  transferred,  §  1135. 

Joint,  §  683. 

Limited,  §  692. 

Mere  possibility  of,  not  transferable,  §  700. 

Merger  of,  destroys  servitude,  §  811. 

Partnership,  §  684. 

Perpetual,  §  691. 

Present,  §  689. 

Qualified,  §  680. 

Time  of  creation  of,  §  749. 

Transfer  of,  when  mortgage,  §  2921. 

Trustee  must  give  beneficiary  notice  of  acquisition  of,  §  2233. 

What  affected  by  transfer,  §  1083. 

When  void  for  suspending  alienation,  §  716. 

INTERLOCUTORY   DECREE. 

In   divorce   proceedings,  §§  61,  131,  132. 

INTERPRETATION.     See  Construction. 
Contracts,  of.     See  Contracts,  VII. 

INTERPRETER. 

Acknowledgments,   officer  taking  may  employ,  §  1201. 

INTERSECTIONS.     See  Eailroad  Corporations. 

INTESTACY. 

All  property  chargeable  with  debts  in  case  of,  §  1358. 

Community    property,    disposition   of   on    death    of   husband    or   wife, 

§§  1401,  1402. 
Disposition  of  property  in  case  of,  §§  1270,  1384.     See  Succession. 
Rules  of  descent  of  property  in  case  of,  §  1386. 
Succession  in  case  of,  §§  1383-1409.     See  Succession. 
Will  interpreted  to  avoid,  if  possible,  §  1326. 


inde:x,  1141 

INTESTATE.     See  Succession. 

Estate  of  chargeable  with  debts,  §  1358. 

INUNDATION. 

Deposit  in  ease  of,  §§  1815,  1816. 

INVENTIONS. 

Author  of,  has  exclusive  ownership,  §  980. 

Property  in,  §§  980-985. 

Subsequent  inventor  of  same  thing,  rights  of,  §§  984. 

INVENTORY.     See  Assignment  for  Creditors. 

Assignor  for  creditors  must  make,  §§  3461,  3462. 

Legatee  for  life,  inventory  by,  and  what  to  contain,  §  1365. 

of  separate  property  of  wife,  §§  165,  166. 

Specific  legatee  for  life  must  sign  and  deliver  inventory  to  second 

legatee,  §  1365. 
Wife's  separate  property,  inventory  of,  §§  165,  166. 

INVESTMENTS. 

Banks,  investments  by  in  its  own  stock.     Appendix,  tit.  "Banking," 

Banks,  investments  by  in  stock  of  corporations.  Appendix,  tit. 
"Banking,"  §  37. 

Bonds  of  irrigation  districts  legal  investment  for  mortgage  insurance 
corporations,  §  453ee. 

Bonds  of  permanent  road  divisions  as  legal  investments  for  funds  of 
insurance  companies,  §  421. 

Bonds  of  permanent  road  division  as  legal  investments  for  mortgage 
insurance  corporations,  §  453ee. 

Building  and  loan  corporations,  of.  See  Building  and  Loan  Corpora- 
tions. 

Mortgage  insurance  companies,  by,  limit  on  power  of,  §  453cc.  See 
Mortgage  Insurance  Corporations. 

Mortgage  insurance  insurance  corporations  may  invest  in  what  ob- 
ligations, §  453ee. 

Mortgage  participation  certificates  and  securities  guaranteed  by 
policies  of  mortgage  insurance  as  legal  investment  for  corporate 
or  trust  funds,  §  453ff . 

Savings  banks,  by.     See  Savings  and  Loan  Corporations. 

Savings  banks,  what  property  may  purchase,  hold  or  convey.  Ap- 
pendix, tit.  "Banking,"  §  61. 

Title  insurance  companies,  by.     See  Title  Insurance  Companies. 

Trust  funds.     See  Mortgage  Insurance  Companies;   Trusts. 

Insurance  companies,  how  may  invest  funds,  §§  421,  427.  See,  also, 
Insurance  Corporations. 

Trust  companies  are  liable  for.     Appendix,  tit.  "Banking,"  §  94. 

Trustee,  by,  §§  2261,  2262.     See  Trusts. 

IRRIGATION.     See  Water  and  Ca»al  Corporation. 

•Joint  owners  of  ditch  or  flume  for,  rights  and  liabilities.     See  Flumes. 

IRRIGATION   CORPORATION.     See   Water   and   Canal   Corporations. 
Transfer  of  stock,  S  324. 

IRRIGATION  DISTRICTS. 

Bonds    of    legal    investments    for    mortgage    insurance    corporations, 

§  453ee. 
Investment  of  fiuuls  of  insurance  coini)anies  in  bonds  of,  §  421, 


1142  INDEX. 

ISLAND. 

Belongs   to   whom,  §§  1016-1018. 

ISSUE. 

Interpretation  of,  §  1071. 

J 

JACKS. 

Lien  of  owner  of  jack  used  for  propagation,  §§  3062-3064. 

JAPANESE. 

Marriage  between  whites  and  mongolians  forbidden,  §  60. 

JETTISON. 

By  whom  may  be  made,  §  2150. 

Defined,  §  2148. 

In  general,  §  2155. 

Loss,  adjustment  of,  how  made,  §  2152. 

Loss,  adjustment  of,  validity  of,  §  2152. 

Loss  by,  how  borne,  §  2151. 

Order  of,  §  2149. 

Eules  governing,  apply  to  what  sacrifices  and  expenses,  §  2155. 

Things    stored    on    deck,    general    average    contribution    in    ease    of, 

§  2154. 
Valuation,  time  of  ascertaining,  §  2153. 
Values,  ascertained  how,  §  2153. 
When  justifiable,  §  2148. 

JOINT. 

And  several,  contract  when  presumed  to  be,  §§  1659,  1660. 

And  several,  obligation  may  be,  §  1430. 

Authority,  how  construed,  §  12. 

Authorship,  rights  of  authors,  §  981. 

Contract  presumed  to  be  joint  and  several,  when,  §§  1659,  1660. 

Contribution  between  joint  or  joint  and  several  obligors,  §  1432. 

Creditor,  directions    by    one,    performance    according   to,    effect    of, 

§  1476. 
Creditor,   preformance  to   one,  §  1475. 
Debtor,  performance  hy,  §  1474. 
Debtors,  release  of,  §  1543. 

Delivery  by  depositary  of  thing  owned  jointly,  §  1827. 
Deposit,  delivery  to  survivor,  §  1828. 
Deposit  in   bank.     Appendix,   tit.   "Banking,"  §  16. 
Drawees,  presentment  to  one,  and  refusal,  effect  of,  §  3187. 
Employees,  duty  of  survivor,  §  1991. 
Guardian,  death  of,  power  of  survivor,  §  252. 
Indemnitor,  liable  jointly  or  separately  with  person   indemnified  to 

third  persons,  §  2777. 
Interest,  change  in,  does  not  affect  insurance,  §  2557. 
Interest  defined,  §  683.  * 

Obligation  presumed  joint  when,  §  1431. 

Obligation  presumed  to  be  point  and  several,  when,  §§  1659,  1660. 
Obligation,  presumption  that  joint  how  only  overcome,  §  1431. 
Obligations,  generally,  §§  1430-1432. 
Obligor,  performance  by,  §  1474. 
Owners,  delivery  of  deposit  to,  how  made,  §  1827. 
Ownership  defined,  §  683. 
Owners  of  ditch  or  flume  for  irrigation,  rights  and  liabilities.     See 

Flumes. 


INDEX.  1143 

JOINT.     (Continued.) 

Performance  according  to  directors  of  creditor  discharges,  §  1476. 
Performance  to  joint  creditor  extinguishes  except  where  deposit  by 

co-owners,  §  1475. 
Promise  presumed  joint  and  several,  when,  §§  1659,   1660. 
Service  after  death  of  joint  employee,  §  1991. 
Tenants,  insurance   not   avoided  by  transfer  between  joint  tenants, 

§  2557. 
Trustees,  all   must   act,  §  2268. 
Trustees,  liability  of,  §  2239. 
Trustees,  survivorship  between,  §  2288. 

JOINT  STOCK  COMPANY. 

Contract  to  relieve  director  from  liability  void,  §  327. 

JOINT  TENANTS. 

Husband  and  wife,  joint  tenancy  between,  §  161. 

JUDGE. 

Acknowledgment,  what  judges   may  take,  §§  1180,   1182,   1183. 
Marriage,  what  judges  may  solemnize,  §  70. 
Superior,  may  consent  to  apprenticeship  when,  §  265. 

JUDGMENT. 

Action  lien  to  obtain  judgment  proving  instrument,  §  1203. 

Affecting  title  may  be  recorded  without  acknowledgments,  §  1159. 

Confession  of,  by  special  partner,  void,  §  2496. 

Confess,  partner  may  not,  §  2430. 

Effect  of,  in  action  to  prove  instrument,  §  1204. 

Interest  on, §§  1917,  1918,  1920. 

Lien  governed  by   Code   of   Civil  Procedure,  §  3058. 

Marriage,  annulling,  conclusiveness  of,  §  86. 

Partner  may  not  confess,  §  2430. 

Proving  instrument  entitles  instrument  to  record,  §  1204. 

Eecording.     See  Eecording. 

Title,   for   possession   or,  §  3375. 

Unrecorded  instrument  is  void  as  against,  §  1214. 

JUDICIAL  PROCEEDINGS. 

Injunction  whether  granted  to  stay,  §  3423. 

JUDICIAL  SALE. 

Foreclosure  of  right  to  redeem  pledge,  §  3011. 
Warranty  on,  §  1777. 

JURY. 

Trial  by,  on  apprenticeship  of  minor,  §  267. 

JUSTICE  OF  PEACE. 

Acknowledgment    by,    certificate   what    to    show    when    used    out    of 

county,  §  1194. 
Acknowledgment,   may  take,  §  1181. 
Apprenticeship,  consenting  to,  §  265. 
Marriage  ceremony,  may  solemnize,  §  70. 
May   direct   calling  meeting  of   courporation,  when,  §  311. 

JUSTICE  OF  SUPREME  COURT. 

Marriage,   may  solemnize,  §  70. 

JUVENILE  COURT. 

Child  may  be  determined  to  be  abandoned  by,  §  224. 


1144  INDEX. 

K 

KILLING  SHEEP. 

By  dogs,  §  3341. 

KINDRED.     See    Consanguinity. 
Collateral  line,  §  1393. 

Degrees  of,  how  computed,  §§  1389-1393. 
Degrees  of,  how  established,  §  1389. 
Direct  line,  §  1392. 

Half  blood,  inheritance  by  kindred  of,  §  1394. 
Half  blood  inherit  equally,  §  1394. 
Series  of  degrees  of,  §  1391. 

KNOWLEDGE.     See  Notice. 

Necessary   to   ratification,  §  2314. 

Of  principal  not   necessary  to  create  guaranty,  §  2788. 


LABOEER. 

Lien  of.     See  Services. 

LACHES. 

Rescission,  right  to,  barred  by,  §  1691. 

LAKE. 

Boundary,  lake  as,  rights  of  owners,  §  830. 
State    owns   land    below   water    of,  §  670. 

LAND.     See  Real  Property. 
Defined,  §  659. 

LAND  AND  BUILDING  CORPORATIONS.     See  Building  and  Loan  Cor- 

poi-ations. 

LAND  AND  WATER  CORPORATIONS.     See  Water  and  Canal  Corpo- 
rations. 
Dividing  land,  water  and  water  rights  among  stockholders,  §  309. 

LANDLORD  AND  TENANT.     See  Hiring;  Lease;   Rents. 

Action   for  possession  without  notice,  where  right  of  re-entry,  §  793. 

Adverse    proceeding,   tenant   to   give   notice   of,  §  1949. 

Agricultural  land,  limit  on  term  for  which  may  be  based,  §  717. 

Assignee  of  lessee,  liability  of,  §  822. 

Assignee  of  lessee,  rights  against  lessor  and  his  assignor,  §  823. 

Assignee  of  lessee,  rights  of  lessor  against,  §  822. 

Assignee  of  lessor,  rights  of  lessee  and  assignee  against,  §  823. 

Assignor   of  lessor,   rights   of   lessee  against,  §  823. 

Attornment  by  tenant  not  required,  when,  §  1111. 

Attornment  of  tenant  to  stranger,  effect  of,  §  194S. 

Change  in  terms  of  lease,  §  827. 

Dwelling-house,  lessor  to  put  in  fit  condition,  §  1941. 

Ejectment,  tenant  to  give  notice  of,  §  1949. 

Ejectment  without  notice,  may  be  maintained,  when,  §  793. 

Fixtures.     See  Fixtures. 

Grant  by  landlord,  right  of  tenant  paying  rent  before  notice,  §  1111. 

Holding  over  after  notice  of  intention  to  quit,  treble  damages,  §  3344, 

Holding  over  willfully,  treble  rent.  §  334.5. 


INDEX.  1145 

LANDLORD  AND  TENANT.      (Continued.) 
Lease  by  agent,  statute  of  frauds,  §  1624. 
Lease  for  life,  rent  recoverable  after  death,  §  825. 
Lease,  statute  of  frauds,  §  1(324. 
Lease,  terms  of,  may  be  changed  by  notice,  §  827. 
Lease.     See  Lease. 
Lessees  and  their  assignees,  rights  of  against  lessor  and  assignors  of 

lessor,  §  823. 
Lessee's  assignee,  liability  of,  §  822. 
Letting  parts  of  rooms  forbidden,  §  1950. 

Lodgings,  hiring  for  indefinite  term,  presumption  as  to,  §  1944. 
Notice  not  necessary  before  action  for  possession,  when,  §  793. 
Notice  of  adverse  proceeding,  liability  of  tenant  failing  to  give  to 

landlord,  §  1949. 
Notice  of  adverse  proceedings,  tenant  to  give  to  landlord,  §  1949. 
Notice  of  change  in  terms  of  lease,  §  827.     ■ 
Notice  of  termination,    manner    of    giving,  §  789. 
Notice,  re-entry  on  termination  of,  §  790. 
Notice,  rights  on  termination  of,  §  790. 

Notice  served  on  tenant   must  be  delivered  to  landlord,  §  1949. 
Notice,  tenancy  at  will  may  be  terminated  by,  §  789. 
Notice    to    quit,    length    of,  §§  789,    1946. 
Part  of  room,  letting  of,  forbidden,  §  1950. 
Possession,  action  lies  for,  without  notice,  when,  §  793. 
Presumption  as  to  renewal  by  remaining  in  possession  or  acceptance 

of  rent,  §  1945. 
Presumption  as  to  term  of  hiring  when  no  limit  fixed,  §§  1943,  1944. 
Presumption  of  renewal  where  no  notice  of  termination,  §  1946. 
Presumption  of  renewal  where  no  notice  to  quit,  §  1946. 
Quit,  failure  to,  after  notice,  treble  rent,  §  3344. 
Re-entry,   action   for   possession   lies   without   notice  where   right   of 

reserved, §  793. 
Re-entry  after  termination  of  notice,  §  790. 
Re-entry,  right   of   can  be  transferred,  §  1046. 
Re-entry,  when   and  how  to  be  made,  §§  791,   793. 
Renewal  of  lease  by  acceptance    of    rent,  §  1945. 
Renewal  of  lease  by  continued   possession,  §  1945. 
Renewal  presumed  in  absence  of  notice  of  termination,  §  1946. 
Renewed,  tenancy  deemed,  unless  notice  to  quit  given,  §  1946. 
Rent,  covenant  for  payment  of,  runs  with  land,  §  1463. 
Bent  dependent  on  life  recoverable  after  death,  §  825. 
Rent,  effect  on  of  lessor's  failure  to  repair,  §  1942. 
Rent  on  life  lease,  recovery  of,  §  824. 
Rent  payable  when,  §  1947. 

Rent,  tenant  released  from  by  letting  room  in  parts,  §  1950. 
Rent,  term  of  hiring  indicated  by,  §  1944. 
Rent.     See  Rent. 

Repairs,  duty  of  lessor  to  make,  §  1941. 
Repairs,  effect  of  lessor  not  making,  §  1942. 
Repairs,  failure  to  make,  vacation  of  premises,  §  1942. 
Repairs,  tenant,   right   of,   to   make   where   lessor   neglects   to    make, 

§  1942. 
Repairs,  when  lessee    may    make,  §  1942. 
.  Repairs,  when  lessor  to  make,  §  1941. 
Rooms,  letting   in    part   forbidden,  §  1950. 
Summary  proceedings  to  obtain    possession,  §  792. 
Tenantable  condition,  landlord  must  put  premises  in,  §  1941. 
Tenant  at  will,  rights  of,  §§819,  820. 
Tenancy  at  will,  how  may  be  terminated,  §  789. 


1146  INDEX. 

LANDLORD  AND  TENANT.      (Continued.) 
Tenant  entitled  to  whole  room,  §  1950. 
Tenant  for  years,  rights  of,  §§  819,  820. 
Terminated,  tenancy  at  will  may  be,  by  notice,  §  789. 
Termination  of  tenancy  at  will,  notice,  §§  789,  790. 
Term  of  hiring  indicated   by   rent,  §  1944. 
Term  of  hiring  when  no  limit  fixed,  §§  1943,1944. 
Treble  rent  for  failure  to  quit  after  notice,  §  3344. 
Treble  rent  for  holding  over,  §  334.5. 
Vacation  by  tenant  for  want  of  repairs,  §  1942. 

LAPSED. 

Devise,  §  1343. 
Legacy,  §  1343. 

LAPSE  OF  TIME.     See  Limitation  of  Actions. 
Bottomry  lien,  extinguishes,  §  3027. 
Defined,  §  125. 

Divorce  denied  because  of,  §  111. 
Lien,  extinguishes,  §  2911. 
Nuisance,  does  not  legalize,  §  3490. 
Partnership  dissolved  by,  §  2450. 
Presumptions  arising  from,  rebutting,  §  126. 
Proposal  to  contract  revoked  by,  §  1587. 

LATERAL  SUPPORT. 

Easement  of,  §  801. 

Excavations,  notice  of,  §  832. 

Excavations,  right   to   make,  §  832. 

Right   of,  §  832. 

Mutual  obligations  to  coterminous  owners,  §  841. 

LAUNDRY. 

Lien   of   proprietor  for  services,  §  3051. 

LAW. 

Foreign,  mistake  of,  is  mistake  of  fact,  §  1579. 
Fraud  a  question  of  fact  and  not  of,  §  3442. 
Mistake  may  be  of  law  or  fact,  §  1576. 
Mistake  of,  what  constitutes,  §  1578. 
Obligations  imposed  by,  §§  1708-1717. 
Transfer  of  property  by  operation  of,  §  1091. 
"\A'aiver  of,  right  of,  §  3513. 

LEARNING.     See   Colleges   and   Seminaries   of  Learning. 

LEASE.     See  Hiring;  Landlord  and  Tenant. 

Agent's  authority  to  execute,  to  be  written,  when,  §  1624. 

Agricultural  land,  of,  not   over  fifteen  years,  §  717. 

Building  and  loan  association  may  make,  §  640. 

Change  in  terms  of,  §  827. 

City  lots,   of,   not   over  fifty  years,  §  718. 

Grantee  or  devisee,  remedies  for  breach  of  terms,  waste,  etc.  §  821. 

Horticultural  land,  of  not  over  fifteen  years,  §  717. 

Incompetent,   limit   of  term   of   lease   of,  §  718. 

Infant,  limit   of  term   of  lease   of,  §  718. 

Lessees  and  their  assignees,  rights  of,  §  823. 

Lessees,  assignees,  liability  of,  §  822. 

Letting  part  of  rooms  forbidden,  §  1950. 

Life,  rent,  how  recoverable,  §  824. 

Limit  of  term  of  lease  of  agricultural  land,  §  717. 


INDEX.  1147 

LEASE.     (Continued.) 

Limit  of  term  of  lease  of  city  lot,  §  718. 

Limit  of  term  of  lease  of  minor  or  incompetent  person,  §  718. 

Limit  of  term  of  lease  of  property  of  municipality,  §§  717,  718. 

Limit  of  term  of  lease  of  agricultural   land   owned   by   city,  §  717. 

Limit  of  term  of  lease  of  sewage   of   city,  §  718. 

Limit  of  term  of  lease  of  sewer  farm  owned  by  city,  §  718. 

Municipality,  limit  of  term  of  lease  of  property  of,  §§  717,  718. 

Notice  of  change  in  terms  of,  §  827. 

Eecording,  want  of,  rights  of  bona  fide  purchaser,  §  1214. 

Renewal  by  continued  possession,  §  1945. 

Eents.     See  Eents. 

Statute   of  frauds,   agent,   authority   to   lease   to   be   written,   when, 

§  1624. 
Statute  of  frauds,  where  over  one  year,  §  1624. 
Telegraph  or  telephone  corporation,  property  of,  lease  of,  §  540. 
Terms  of  may  be  changed  by  notice,  §  827. 
Trust,  express,  to  lease  realty,  §  857. 

LEGACY.     See  Wills. 

Gift   causa  mortis,  how  far  treated   as,  §  1153. 

LEGISLATIVE  ACTS. 

Municipal  corporation,  by  not  enjoined,  §  3423. 

LEGISLATUBE. 

Amendment   or  repeal  of  laws  relating  to  corporations,  §  384. 
Dissolution  of  corporation  by,  §  384. 
Examination   by,  into   affairs   of   corporation,  §  383. 
Regulation  of  freights,  §  465. 

LEGITIMACY.     See  Bastard. 

Acknowledgment  of  illegitimate  child,  §  230. 

Acknowledgment  of  illegitimate  child  and  adoption  into  family,  effect 

of,  §  230. 
Acknowledgment    of    illegitimate    child    and   receiving    into    family, 

right  of  inheritance  on,  §  1387. 
Acknowledgment  of  illegitimate  child,  inheritance  from  child  in  case 

of,  §  1388. 
Adoption  of  illegitimate  child,  consent  of  mother,  §  224. 
Adultery  of  husband,  effect  on  children  of  divorce  for,  §  144. 
Adultery  of  wife,  divorce  for,  legitimacy  of  children,  §  145. 
Children    legitimate    where    marriage    annulled    or    divorce    granted, 

§  1387. 
Father,   court  may  make   and  enforce  order  for  maintenance  of  il- 
legitimate child  by,  §  196a. 
Father  as  well  as  mother  of  illegitimate  child  liable  for  maintenance, 

§  196a. 
Guardian  or  mother  of  illegitimate  may  sue  father  for  maintenance, 

§  196a. 
Heir  to  one  acknowledging  himself  to  be  father,  §  1387. 
Illegitimate  child,  how  legitimated,  §  230. 

Kindred  of  parents,  when  only  illegitimate  child  inherits  from,  §  1187. 
Mother  alone  can  bind  illegitimate  child  as  apprentice,  §  265. 
Mother,  heir  to,  illegitimate  child  is,  §  1387. 
Mother    marrying,    right    to    bind    illegitimate    child    as    apprentice, 

§265. 
Mother  may  appoint  guardian  of  illegitimate  child,  §  241. 
Motlier,  right  of  inheritance  from,  §  1387. 
Nullity  of  marriage  does  not  affect  legitimacy  of  children,  §  84. 


1148  INDEX. 

LEGITIMACY.     (Continuea.) 

Of  children  born  after  dissolution  of  marriage,  §  194. 

Of  children  born  in  wedlock,  §  193. 

Of  children  not  affected  by  annulment  of  marriage,  §§  S4,  1387. 

Of  children,  who  may  dispute,  §  195. 

Presumption   of,  §  195. 

Succession  to  estate  where  child  legitimated  by  marriage,  §  1388. 

Succession  to  estate  where  child  not  legitimated,  §  1388. 

LESSOR  AND  LESSEE.     See  Landlord  and  Tenant. 

LETTER  OF  ATTORNEY.     See  Power  of  Attorney. 

LETTERS. 

Containing   valuable   carrier's   liability,  §  2177. 

Property  in, §  985. 

Bight  to  publish,  §  985. 

When  deemed  to  be  continuing  guaranty,  §  2864. 

LETTERS  OF  CREDIT. 

Construction  of,  §  2866. 

Continuing  guaranty,  may  be,  §  2864. 

Continuing  guaranty,  when   are,  §  2864. 

Credit  given  must  agree  with  terms  of,  §  2866. 

Defined,  §  2858. 

General,  authority  to  pav  under,  §  2862. 

General,  defined,  §  2861.  " 

General,  extent   of,  §  2863. 

General,  nature  of,  §  2862. 

General,  rights  of  one  paying  under,  §  2862. 

General,  several  persons  may  successively  give  credit,  §  2863. 

Is  general  or  special,  §  2860. 

Liability  of  writer,  §  2860. 

License  from  superintendent  of  banks  necessary  before  Issuance  of. 

Appendix,  tit.  "Banking,"  §  13. 
License  to  issue-,  fee  for.     Appendix,  tit.  "Banking,"  §  13. 
May  be  addressed  to  se^•eral  persons  in  succession,  §  2859. 
Not  exhausted  by  credit  to  amount  limited,  when,  §  2864. 
Notice  to  writer  of  credit  given,  whether  necessary,  §  2865. 
Special,  defined,  §  2861. 
What   persons,    associations    or    corporations    may   issue.     Appendix. 

tit.   "Banking,"  §  13". 

LETTERS  PATENT. 

Acknowledgment  of,  not  necessary  to  recording,  §  1160. 
Lost,  recording  certified  copy  and  effect  of,  §  1160. 

LEX  DOMICILII. 

Governs  personalty,  §  946. 

LIBEL. 

Defamation,  §  44. 

Defined,  §  45. 

Malice,  when  not  inferred,  §  48. 

Privileged   communications,   defined   and   classified,  §  47. 

Right    to   protection   from,  §  43. 

LICENSE. 

Fee  for  license  to  issue  letters  of  credit.     Appendix,  tit,  "Banking," 

§  13. 
Foreign  building  and  loan  corporation,  license  required  of,  §  646. 


INDEX.  1149 

LICENSE.      (Continued.) 
Marriage,  §§  69-79. 
Ships,  of,  §  966. 
Street-cars,  license  on,  §  508. 
To  take  tollS;  §  528. 

LIEN. 

Accessory  to   act  secured, §  2909. 

Agistor's,  for   caring  for   a  pasturing   stock,  §  3051. 

Alienation,  property  liable  in  inverse  order  of,  §  2899. 

Apportionment   of,  §  2912. 

As  security  for  performance  of  obligation  not  in  existence,  §  2884. 

Assessment  company,  indebtedness  of,  §  453g. 

Attachment,  lien  of  officer,  §  3057. 

Automobiles,  liens  of,  keepers  of  garages  for  services,  §  3051. 

Banker's,  §  3054. 

Boarding-house  keepers,  §  1861. 

Bottomry,   generally,  §§  3017-3029.     See   Bottomry. 

Bottomry,  priority,  §  2897. 

Bulls    used   for   propagation,    liens   for   services    and    how    enforced, 
§§  3062-3064. 

Carrier's,  for  freightage,  §  2144. 

Carriers  of  good,s,  of.     See  Carriers  of  Goods. 

Carrier's,  on  baggage,  for  fare,  §  2191. 

Carrier's  ship's  manager  may  not  g'ive  up,  §  2389. 

Claim  not  due,  no  lien  for,  §  2882. 

Compensation,  holder  not  entitled  to  for  trouble  or  expense,  §  2892. 

Confined  to  original  obligation,  §  2891. 

Contract,    creation    by,   as   security   for    obligation    not   in    existence, 
§  2884. 

Contract  for  forfeiture  of  property  void,  §  2889. 

Contract  in    restraint    of    redemption    void,  §  2889. 

Contract,  may  be  created  by,  §  2881. 
*  Contracts  subject  to  provisions  relating  to,  in  general,  §  2877. 

Conversion  by  lienor  extinguishes,  §  2910. 

Conversion,  damages  of  lienor,  §  3338. 

Created  by  contract  or  operation  of  law,  §  2881. 

Defined,  §  2872. 

Delivery,  want  or   change   of  possession,  effect   of,  §  3440. 
Depositary,   code  provisions   governing,  §  1856. 

Depositary  has,  §  1856.. 

Depositary,  of.     See  Depositary. 

Depositary,  sale  of  property  for  charges,  right  of,  §  1857. 

Encumbrance  includes,  §  1114. 

Execution,  lien  of   officer,  §  3057. 

Extent  of,  §  2891. 

Extinguished  by  limitation,  §  2911. 

Extinguished  by  restoration  of  property,  §  2913. 

Extinguished  by   sale   or  conversion,  §  2910. 

Extinguished   in   like   manner  with   any   other   accessory   obligation, 

§  2909. 
Extinguished,  not   bv  partial   performance.  §  2912. 
Factor's,  §  3053. 

Forfeiture  of  property,  contract  for,  void,  §  2889. 
Fraudulent  conveyance,  delivery,  §  3440. 
Future  interest,  on,  may  be  created,  §  2883. 
Future  interest,  on,  when  attaches,  §  2883. 
Future   obligation,   as   security   for,  §  2884. 


1150  INDEX. 

LIEN.      (Continued.) 

Future  obligation,  may  be  created  by  contract  to  secure  perform- 
ance  of,  §  2884. 

Garages,  liens  of  owner  of  for  services,  §  3051. 

General,  defined,  §  2874. 

General  or  special,  liens  are,  §  2873. 

Growing  crop,  lien  of  mortgage  on,  continuance  after  severance, 
§  2972. 

Homestead,  liability  for,  §  1241. 

Hotel-keeper's  §  1861. 

Inferior  lienor  redeeming,  subrogation  of,  §  2904. 

Inferior  lienor,  right  of  redemption  of,  §  2904. 

Innkeeper's  §  1861. 

Is  general  or  special,  §  2873. 

Jacks  used  for  propagation,  lien  of  owner  and  how  enforced, 
§§  3062-3064. 

Judgment,  covered  by  Code  of  Civil  Procedure,  §  3058. 

Laborer's  §  3052. 

Laborers  on  thrashing-machines,  liens  of,  §  3061. 

Laundry,   for,  §  3051. 

Limitation,  lien  extinguished  by,  when,  §  2911. 

Livery-stable  keeper,  of,  §  3051. 

Live-stock,  for  keeping,  §  3051. 

Lodging-house  keepers,  §  1861. 

Loggers.     See  Services. 

Mates,  §  3056. 

Mechanic's  regulated  by  Code  of  Civil  Procedure,  §  3059. 

Mining  partner,  lien  of,  §  2514. 

Mining  partnership,  purchaser  of  interest  in,  takes  subject  to,  §  2517. 

Mining  partnership,  purchaser  of  interest  in,  takes  with  notice  of, 
§  2518. 

Mortgage  for  price,  priority  over,  §  2898. 

Mortgage,  lien  of.     See  Mortgages. 

Mortgage  subject  to  law  of,  §  2877. 

Officer's  for  levying  writ,  §  3057. 

Order  of  resort  to  different  funds,  §  2899. 

Order  of  resort,  where  property  transferred  at  various  times,  §  2899. 

Operation  of  law,  may  be  created  by,  §  2881. 

Operation  of  law,  time  when  arises,  §  2882. 

Partner's  on   shares  of  copartner  for  payment  of  firm  debts,  §  2405. 

Part  performance  does  not  extinguish,  §  2912. 

Pasturing  stock,  for,  §  3051. 

Performance  of  other  obligation  than  that  secured,  lienor  not  en- 
titled to, §  2891. 

Personal  obligation  to  perform  not  implied  on  creation  of,  §  2890. 

Personal  property,  lien   on,  for  services  or  repairs,  §  3051. 

Personalty,  on,  for  services  performed.     See  Service. 

Pledge,  lienor  may,  §  2990. 

Pledge,  subject  to  law  of,  §  2877. 

Pledge.     See  Pledge. 

Possession,  change  of,  necessary  as  against  creditors,  §  3440. 

Possession,  lien  dependent  on,  §  3051. 

Prior,  right  of  holder  of  special  lien  paying,  §  2876. 

Priority  of  bottomry,  §§  3028,  3029. 

Priority  of  liens  against  ship,  §  3028. 

Priority  of  purchase  money  mortgage,  §  2898. 

Priority,  order  of,  §  2897. 

Propagation,  lien  by  owner  of  animal  used  for,  claim  of,  §  3063. 


INDEX.  1151 

LIEN.     (Continued.) 

Propagation,  lien  by  owner  of  animal  used  for,  enforcement  of, 
§  3064. 

Propagation,  owner  of  animal  used  for  has  lien,  §  3062, 

Property  not  in  existence,  may  be  created  on,  §  2883. 

Property  not  in  existence,  wlien   attaches,  §  2883. 

Purchaser  of  interest  in  mining  claim  takes  subject  to,  §§  2517,  2518. 

Eecording,  duty  as  to,  §  1164. 

Eedemption,  contract  in  restraint  of  void,  §  2889. 

Eedemption,  how  made,  §  2905. 

Eedemption,  inferior  lienor  redeeming,  subrogation  of,  §  2904, 

Eedemption,  inferior  lienor,  rights  of  as  to,  §  2904. 

Eedemption,  subrogation  of  person  redeeming,  §  2903. 

Eedemption,  when  may  be  made,  §  2903. 

Eedemption,  who  entitled  to,  §§  2903,  2904. 

Eespondentia  subject  to  law  of,  §§  2877,  2897. 

Eespondentia.     See  Eespondentia. 

Eepairs,  for.     See  Service. 

Eestoration  of  property  subject  to,  to  owner,  effect  of,  §  2913. 

Eight  of  redemption  of  property  subject  to,  §  2903. 

Sale  extinguishes,  §  2910. 

Sale  of  personalty  to  enforce,  §  3052. 

Salvage,  lien  for,  §  2079. 

Seamen's,  §  3056. 

Seller  of  personalty,  lien  is  dependent  on  possession,  §  3049. 

Seller  of  personalty,  lien  of  for  price,  §  3049. 

Seller  of  personalty,  lien  of,  how  enforced,  §  3048. 

Services,  for,  §  3051.     See  Service. 

Sheriff's,  §  3057. 

Ship,  debts  when  liens  against,  §  3060. 

Ship-master's,  §  3055. 

Special,  defined,  §  2875. 

Special,  mortgage  is,  unless  otherwise  agreed,  §  2923. 

Special  or  general,  is,  §  2873. 

Special  partner,  of,  when  void,  §  2496. 

Special,  right  of  holder  who  pays  prior  lien,  §  2876. 

Stallions  used  for  propagation,  lien  in  favor  of  owner,  and  how  en- 
forced, §§  3062-3064. 

Stoppage  in  transit,  §§  3076-3080. 

Storage,  for,  §  1856. 

Subrogation  of  inferior  lienor  redeeming,  §  2904. 

Subrogation  of  person  redeeming  property  subject  to,  §  2903. 

Thrashing-machine,  lien  of  laborers  on.     See  Services. 

Title  not  transferred  by,  §  2888. 

Title,  parties  cannot  contract  that  lien  pass,  §  2888. 

Vendee's,  §  3050. 

Vendor  of  realty,  lien  of,  §§  3046-3049. 

Vendor's  valid  against  whom,  §  3048. 

Vendor's  waiver  of  by  transfer  of  contract,  §  3047. 

Veterinary  hospital  proprietors  have,  for  services,  §  3051. 

Veterinary  hospital  proprietors,  lien  of,  is  dependent  on  possession, 
§  305i. 

Veterinary  hospital  proprietors,  sale  for,  manner  of  and  disposition 
of  proceeds, §  3052. 

Veterinary  surgeons  have  liens  for  services,  §  3051. 

Veterinary  surgeons,  lien  dependent  on  possession,  §  3051. 

Veterinary  surgeons,  sale  for,  manner  of  and  disposition  of  proceeds, 
§  3052. 

Void,  contract  for  forfeiture  of  property  or  in  restraint  of  redemp- 
tion, §  2889. 


1152  INDEX. 

LIFE  ESTATES.     See  Estates  for  Life. 

LIFE    INSURANCE.     See    Insurance;    Insurance    Corporations;    Mutual 
Life   Health,   Accident,   and   Annuity   Insurance   on   Assessment 
Plan. 
Mutual  benefit  and  life  associations.     See  Mutual  Benefit  and  Life 
Associations. 

LIFE  INSURANCE  COMPANIES.     See  Insurance  Corporation;  Mutual 
Benefit   and   Life   Associations;    Mutual   Life,   Health,   Accident, 
•  and  Annuity  Insurance  on  Assessment  Plan. 

LIFE  TENANT.     See  Estate  for  Life. 

LIGHT. 

Easement   of,  §  SOI. 

LIGHTING  CORPORATIONS.     See  Electric  Companies;  Gas  Companies. 
Provisions  of  code  relating  to  repealed,  §§  629,  630,  630a,  631,  632. 

LIMITATION  OF  ACTIONS. 

Action  to  show  property  was  community,  §  164. 

Apprentice,  action  by  for  breach  of  contract,  §  273. 

Bank,  claim  against,  within  what  time  to  be  brought.     Appendix,  tit. 

"Banking,"  §  136. 
Conveyance    by    heir    valid    unless    will   i)roved    within    four   years, 

§  1364. 
Corporation  to  organize  within  one  year,  §  358. 
Directors,  action  for  creating  excessive  debt,  §  309. 
Directors,  action  for  reducing  or  withdrawing  capital  stock,  §  309. 
Directors,  limitation  of  action  against,  §  309. 
Director's  personal  liabilitv,  §  309. 
Divorce,  §§  124-127. 
Divorce  is  defeated  by,  §  111. 
For  annulment  of  marriage,  §  83. 
In  grant,  construction  of,  §  1067. 
Lien  extinguished  by,  when,  §  2911. 
Nuisance,  time  does  not  legalize,  §  3490. 
Nuncupative  will,  proof  of,  §  1290. 
Partner  in  liquidixtion  cannot  revive  debt,  §  2462. 
Prescription,  title  by,  what  is,  §  1007. 

Recovery  of  stock  sold  for  delinquent  assessments,  §  347. 
Stock  sold  for  assessment,  §  347. 

LIMITATION   OF   LIABILITY. 

By  carrier,  §§  2174-217G. 

LIMITED  INTEREST. 

Defined,  §  692. 

LINEAL  CONSANGUINITY.     See   Consanguinity. 

LINEAL  WARRANTIES. 

Abolished,  §  1115. 

Liability  of  heir  or  devisee  under,  §  1115. 

LIQUIDATED  DAMAGES. 

Not  bar  to  specific  performance,  §  3389. 

Validity  of  contract  fixing  damages  in  advance,  §§  1670,  1671.     * 

LITERARY  CORPORATIONS. 

Elections,  no  cumulative  voting  unless  by-laws  provide,  §  307. 
Power  to  take  by  will,  §  1275. 


INDEX.  1153 

LITERARY  PROPERTY. 

Assignable,    is,  §  9S2. 

Author  has  exclusive  ownership,  §  980. 

Joint  production,  how  owned,  §  981. 

Letters,   ownershiji  of,  §  985. 

Letters,  right  to  publish,  §  985. 

Ownership  of,  how  long  continues,  §  980. 

Publication  of,  effect  of,  §  983. 

Subsequent  author  of  the  same  thing,  rights  of,  §  984. 

There  may  be  ownership  in  compositions,  §  655. 

LIVERY-STABLE. 

Lien  on  animals  kept,  §  3051. 

LIVE-STOCK.     See   Animals. 

Combinations  to  obstruct   sale   of,   prevented.     Appendix,  tit.   "Ani- 
mals." 
Life,  health  and  accident  insurance  on.     Appendix,  tit.  "Insurance." 
Lien   for    keeping,  §  3051. 

LOAN.     See   Building   and   Loan   Associations;    Deposit;    Hiring;    Mort- 
gages; Savings  and  Loan  Associations. 

Animal,  care  required  of  borrower  of,  §  1887. 

Borrower  not  to  part  with  thing  to  third  person,  §  1891. 

Care  required  of  borrower,  §§  1886,  1887,  1888. 

Defects,  lender  liable   for  injuries  from,  §  1893. 

Defined,  §  1884. 

Demand,  when  thing  returnable  without,  §  1895. 

Exchange,  expenses,  borrower  to  bear,  §  1904. 

Exchange,  for,  code  sections  applicable  to,  §  1906. 

Exchange,  for,  defined,  §  1902. 

Exchange,  for,  lender  cannot  modify  contract,  §  1905. 

Exchange,  for,  title  to  property  passes,  §  1904. 

Exchange,  increase  of,  to  whom  belongs,  §  1904. 

Exchange  or  use,  for,  statute  governing  when  option  as  to,  §  1903. 

Expenses,  when  borrower  to  bear,  §§  1892,  1904. 

Expenses,  when  lender  to  bear,  §  1892. 
•  Hiring,  §§  1925-1959.     See  Hiring. 

Increase  of  belongs  to  lender,  §  1885. 

Injuries,  when  borrower  to  repair,  §  1889. 

Interest  on, §§  1914-1920. 

Money,  of,  defined,  §  1912. 

Money,  of,  interest,  §§  1914-1920.     See  Interest. 

Money,  of,  presumed  to  be  on  interest,  §  1914. 

Money,  of,  to  be  repaid  in  current  money,  §  1913. 

Mortgage    insurance    corporations,   loans    by.     See    Mortgage    Insur- 
ance Corporations. 

Particular  use,  for,  §  1930. 

Place  of  return,  §  1896. 

Presumed  to  be  on  interest,  §  1914. 

Reloaning  forbidden,  §  1891. 

Repairs,  borrower  to  make,  when,  §  1889. 

Returnable  without  demand,  when.  §  1895. 

Return,  indemnity  to  borrower,  §  1894. 

Return,  lender  requiring,  to  indemnify  borrower  when,  §  1894. 

Return,  owner  may  require  at  any  time,  §  1894. 

Return,  place  of,  §  1896. 

Ship-master's  authority  to  borrow  money,  §  2374. 

Ship's  manager  may  not  borrow  money,  §  2389. 
Civ.  Code — 73 


1154  INDEX. 

LOAN.     (Continued.) 

Skill  required  of  borrower,  §  18S8. 
Title  of  property  loaned  does  not  pass,  §  18S5. 
Use,  for  mere,  code  sections  governing,  §  1912. 
Use  of  thing  loaned,  §  1890. 

LOAN  ASSOCIATIONS.     See  Building  and  Loans  Associations. 

LOCATION. 

Alining  claim,  of.     See  Mines  and  Mining. 

LODE  CLAIMS.     See  Mines  and  Mining. 

LODGES. 

Cori^orations  to  erect,  directors,  from  whom  elected,  §  290. 
Corporations  to  erect,  directors,  increase  or  decrease  and  proceedings 

on,  §  290. 
Corporations  to  erect,  management  and  control  of,  §  305. 
Corporations  to  erect,  number  of  directors,  §  290. 

LODGING-HOUSE  KEEPERS.     See  Innkeepers. 

Charges,  for  what  services  only  can  be  made,  §  1863. 

Charges,  improper,  damages  for,  §  1863. 

Charges,  posting  statement  of,  §  1863. 

Depositaries  for  hire,  liability  is  that  of,  §  1859. 

Exemption  from  liability  where  safe  kept  and  notice  posted,  §  1860. 

Liability  of,  §§  1859,  1860. 

Lien,  have  on  baggage  for  unpaid  charges,  §  1861. 

Lien  on  baggage,  how  enforced,  §  1S61. 

Lien  on  baggage,  rights  where  property  not  baggage  of  guest,  §  1861. 

Lien  on  baggage,  sale  of  property  for  proceedings  on  and  disposition 
of  proceeds,  §  1861. 

Lieu,  sale  of  baggage  for,  proceedings  bar  action  against,  §  1861. 

Limitation  of  liability  for  valuables  where  receipt  not  given,  §  1860. 

Luggage,  limitation  of  liability  for,  §  1859. 

Rent  payable  when,  §  1947. 

Sale  of  unclaimed  baggage,  procedure  for,  and  disposition  of  pro- 
ceeds,  §  1862. 

Sale  of  unclaimed  baggage,  right  of,  §  1862. 

Term  presumed  hired  for,  §  1944. 

LOGGERS. 

Lien  of.     See  Services. 

LOST  INSTRUMENT.     See  Lost  Property. 

Certificate  of  stock,  action  for  new  certificate,  §  328. 
Certificate  of  stock,  judgment  for  new  certificate,  protection  of  com- 
pany, §  328. 
Negotiable  instrument,  action  to  re-establish,  indemnity,  §  3415. 
Payment  of  lost  negotiable  instrument,  indemnitj-,  §  3137. 
Recording  certified  copies  of  lost  letters  patent,  §  1160. 
Re-establishment  and  re-execution  of,  §  3415. 

LOST  PROPERTY.     See  Finder;  Lost  Instrument. 

Abandoned  property,  statute  does  not  apply  to,  §  1872. 

Animals,  persons  saving,  duty  of,  §  1865. 

Appraisement  of,  §  1865. 

Claimant,  proof  may  be  required  of,  before  surrender,  §  1866. 

Finder,  compensation  for  expenses,  entitled  to,  §  1867. 

Finder,  duty  of,  where  owner  not  known,  §  1865. 

Finder,  exoneration  of  owner  by  surrender  of  property  to,  §  1871. 


INDEX.  1155 

LOST  PROPERTY.     (Continued.) 

Finder,  liable  as  depositary  for  hire,  §  1864. 

Finder  may  put  property  on  storage,  §  1868. 

Finder  not  entitled  to  reward  if  owner  not  notified,  §  1865. 

Finder  not  notifying  owner,  liability,  §  1865. 

Finder  not  to  charge  except  tor  expenses,  §  1865. 

Finder,  obligations  of,  §  1864. 

Finder,  penalty  for  failure  to  comply  with  statute  or  to  surrender 

property, §  1871. 
Finder,  publication  of  list  by,  §  1871. 
Finder,  reward  of,  §§  1865,  1867. 
Finder,  title  vests  in  after  what  time,  §  1871. 
Finder,  title  when  vests  in,  §  1871. 
Finder  to  notify  owner,  §§  1864,  1865. 
Finder  to  restore  property,  §§  1864,  1865. 
Lists  of,  preparation  and  filling  of,  §  1865. 
Sale  of,  manner  of,  §  1870. 
Sale  of,  when  authorized,  §  1869. 

LOTTERY. 

Insurance  of,  not  authorized,  §  2532. 

LUGGAGE.     See  Baggage. 
LUNATIC.     See  Insane  Person. 

M 

MAIL  CARRIERS. 

To  ride  free  on  street  railways.     Appendix,  tit.  "Railroads." 

MAINTENANCE.     See  Divorce;  Parent  and  Child. 
Action  for,  by  wife  without  divorce,  §  137. 

MAJORITY. 

Adults,  who  are,  §  27. 

Age  of,  §  25. 

Attainment  of  ward  to,  terminating  guardianship,  §§  254,  255. 

Attainment  to,  ends  parental  authority,  §  204. 

Co-trustees,  all  must  act,  §  2268. 

Joint  authority,  majority  may  exercise,  §  12. 

Mining  partnership,  majority  control,  §  2520. 

Of  partners,  decision  of,  binds,  §  2428. 

MALICE.     See  Libel;  Slander. 

Exemplary  damages  for,  §  3294. 

Interest  as  damages  in  ease  of,  §  3288. 

Privileged  communciation,  malice  not  inferred  from  what,  §  48. 

MANUFACTURE. 

Agreement  to,  need  not  be  in  writing,  §  1740. 

Implied  warranty  on  sale  of  manufactured  article,  §§  1769,  1770. 

Warranty  on  manufacture  of  article  for  particular  purpose,  §  1768. 

MAP. 

Of  wagon-road,  §  513. 
Railroad,  to  be  filed,  §  466. 

MARINE  CARRIERS. 

Defined,  §  2087. 

Delay,  not  to,  §  2117. 

Delivery  of  freight,  manner  of,  §  2119. 


1156  INDEX. 

MARINE  CARRIERS.      (Continued.) 

Deviation  from  voyage,  improper,  not  to  make,  §  2117. 

Fire,  not  liable  for  loss  by,  §  2197. 

General  average.     See  General  Average. 

General  duties  of,  §  2117. 

Governed  by  acts  of  Congress,  §  2088. 

Jettison.     See  Jettison. 

Liable  for  losses  except  from  perils  of  the  sea,  §  2197. 

Liability  governed  by  acts  of  Congress,  §  2197. 

Perils  of  sea  are  what,  §  2199. 

Perils  of  sea,  not  liable  for  loss  by,  §  2197. 

Eegulated  by  acts  of  Congress,  §  2198. 

Stowage,  freight  when  only  can  be  stowed  on  deck,  §  2117. 

Who  are,  §  2087. 

MARINE  INSURANCE.     See  Insurance;  Insurance  Corporation. 

MARITIME  LAW.     See   Shipping. 

MARK. 

As  signature,  §  14. 

Included  in  signature  or  subscription,  §  14. 

Signature  by,  how  made,  §  14. 

Signature  by,  two  witnesses  necessary,  §  14. 

MARRIAGE. 

Absence  of  former  spouse,  marriage  during,  effect  of,  §  61. 

Action  to  have  marriage  declared  incestuous  or  void,  S  80. 

Action  to  have  validity  of  marriage  declared,  §  78. 

Age  at  which  marriage  may  be  contracted,  §  56. 

Age,  want  of,  annulment,  §  82. 

Agreement  upon  consideration  of,  to  be  written,  §  1624. 

Annulment  of,  conclusiveness  of  judgment  of,  §  86. 

Annulment  of,  custody  of  children,  §  85. 

Annulment  of,  does  not  affect  legitimacy  of  children,  §  84. 

Annulment  of,  grounds  for,  §  82. 

Annulment  of,  limitation  of  actions  for,  §  83. 

Annulment  of,  maintenance   and   education   of  children,  §  85. 

Annulment  of,  time  within  which  to  bring  action  for,  §  83. 

Annulment  of,  who  may  sue  for,  §  83. 

Authentication,  necessity  of,  §  68. 

Breach  of  promise  of,  damages,  §  3319. 

Breach  of  promise  of,  want  of  chastity  justifies,  §  62. 

Celebration,  necessity  and  manner  of,  §  68. 

Celebration,  non-compliance  with  statute  by  third  persons,  §  68. 

Certificate  of,  delivery  of  copy  to  parties,  §§  74,  79. 

Certificate  of,  filing,  §§  74,  79. 

Certificate   of  marriage  without  license,  §  79. 

Certificate  of,  what  to  show,  §  73. 

Certificate  of  registry  of  marriage,  filing  with  county  recorder,  §  69a. 

Certificate  of  registry  of  marriage,  j^arties  to  obtain,  §  69a. 

Certificate  of  registry  of  marriage,  to  be  filled  out  in  presence  of 
county  clerk,  §  69a. 

Certificate  of  registry  of  marriage,  to  be  presented  to  person  solem- 
nizing, §  69a. 

Certificate  of  registry  of  marriage,  what  to  contain,  §  69a. 

Certificate,  person  solemnizing  to  make,  §  73. 

Chastity,  want  of,  effect  on  promise  to  marry,  §  62. 

Children  of  annulled  marriage,  custody  of,  §  85. 

Children  of  annulled  marriage,  maintenance  and  education,  §  85. 


INDEX.  1157 

MARRIAGE.      (Coutiuiied.) 

Conditious  restraining,  effect  of,  §  710. 

Conflict  of  laws  relating  to,  §  63. 

Consent,  age  of,  §  56. 

Consent  alone  will  not  constitute,  §  55. 

Consent,  filing  of,  §  69. 

Consent,  §  how  proved,  §  57. 

Consent,  marriage  under  age  of,  annulment,  §  82. 

Consent,  minors  when  may,  §  56. 

Consent  obtained  by  force,  annulment,  §  82. 

Consent  obtained  by  fraud,  annulment,  §  82. 

Consent  of  parent  or  guardian,  necessity  of,  §  69. 

Consent,  stating  facts  of,  in  the  license,  §  69. 

Contracted  out  of  state,  validity  of,  §  63. 

Contract  in  restraint  of,  other  than  infant,  void,  §  1676. 

Declaration  of,  acknowledging  and  recording,  §  77. 

Declaration  of,  action  to  determine  and  declare  valid,  §  78. 

Declaration  of,  by  action  in  court,  §  78. 

Declaration  of,  by  members  of  particular  denomination,  §  79a. 

Declaration  of,  penalty  for  failure  to  record,  §  79a. 

Declaration  of,  recording,  §§  77,  79a. 

Declaration  of,  right  to  make,  §  76. 

Declaration  of,  subscription  and  attestation  of,  §  76. 

Declaration  of,  to  be  acknowledged  and  recorded,  §§  77,  79a. 

Declaration  of,  to  contain  what,  §  76. 

Declaration  of,  when  may  be  made,  §§  76,  79a. 

Defined,  §  55. 

Denial  of,  action  to  determine  and  declare  valid,  §  78. 

Dissolution  of.     See  Divorce. 

Dissolved  how,  generally,  §  90. 

Divorce.     See  Divorce. 

Drugs,  license  not  to  issue  to  person  under  influence  of,  §  69. 

During  life  of  former  spouse,  void  when,  §  61. 

Examination  of  person  solemnizing,  §  72. 

Examination  of  applicant  for  license,  §  69. 

Force,  consent  obtained  by,  annulment,  §  82. 

Foreign,  validity  of,  §  63. 

Former  husband  or  wife  living,  annulment,  §  82. 

Former  husband  or  wife  living,  effect  of,  §§  61,  82. 

Fraud,  consent  obtained  by,  annulment,  §  82. 

Guardian,  powers  of,  terminated  by,  §  255. 

Impotence,  annulment  of  marriage,  §  82. 

Incestuous,  judicial  declaration  of,  §  80. 

Incestuous,  what  is,  and  effect  of,  §  59. 

Infant,  consent  of  parent  or  guardian  when  necessary,  §  69. 

Infants,  age  at  which  may  marry,  §  56. 

Infant's  ends  parental  authority,  §  204. 

Insane  or  imbecile  person,  license  not  to  issue  to,  §  69. 

Insane  person,  marriage  of,  annulment,  §  82. 

Interlocutory  decree  of  divorce,  void  if  contracted  within  one  year 

from  entry  of,  §  61. 
Intoxicants,  license  not  to  issue  to  persons  under  influence  of,  §  69. 
Legitimacy  of  children  born  in  wedlock  presumed,  §  193. 
Legitimacy  of  children  not  affected  by  annulment  of  marriage,  §  84. 
Legitimate,  children  are,  where  divorce  granted,  §  1387. 
Legitimate,  children  of  annulled  marriage  are,  §  1387. 
Legitimized,  child  born  before  wedlock  is,  by  marriage  of  parents, 

§215. 
License,  certified  copy  of,  §  74. 


1158  INDEX. 

MARRIAGE.      (Continued.) 

License,  consent,  filing  of,  §  69. 

License,  consent  of  parent  or  guardian,  where  parties  under  age,  §  69. 

License,  consent,  stating  facts  on  license,  §  69. 

License,  doubts  as  to  correctness  of  statements  in,  powers  and  duties, 

§  72. 
License,  drugs,  not  to  issue  to  persons  under  influence  of,  §  69. 
License,  examination  of  male  applicant  for,  §  69. 
License,  filing,  §  74. 

License  from  county  clerk  of  county  where  marriage  celebrated,  §  69. 
License,  how  obtained.  §  69. 

License,  infant,  consent  of  parent  or  guardian  necessary,  §  69. 
License,  infant,  examination  of  parties,  §  69. 

License,  intoxicants,  not  to  issue  to  persons  under  influence  of,  §  69. 
License,  marriage  without,  §  79. 
License,  marriage  without,  certificate  of,  §  79 
License,  marriage  without,  record  of,  §  79. 
License,  minister  may  marry  without,  when,  §  79. 
License,  necessity  of  §§  68,  69,  72,  79,  79a. 
License,  not  to  issue  for  marriage  between  white  person  and  negro 

or  mongolian,  §  69. 
License  not  to  issue  to  what  persons,  §  69. 
License,  oath  and  examination  of  parties,  §  69. 

License,  production  of,  on  solemnization,  §  72. 

License,  requisites  of,  §  69. 

License,  what  to  show,  §  69. 

License,  who  may  be  married  without,  §  79. 

Minors,  age  at  which  may  marry,  §  56. 

Mongolians  and  whites,  license  not  to  issue,  §  69. 

Mongolians  and  whites,  of,  effect  of,  §  69. 

Mulattoes  and  whites,  license  not  to  issue,  §  69. 

Mulattoes  and  whites  void,  §§  60,  69. 

Negroes  and  whites,  license  not  to  issue,  §  69. 

Negroes  and  whites,  void,  §§  60,  69. 

Nullification  of,  legitimacy  of  children  not  affected,  §  84. 

Out  of  state,  validity  of,  §  63. 

Promise  of,  release  from  by  unchastity,  §  62. 

Promise  to  marry  need  not  be  written,  §  1624. 

Proving,  mode  of,  §  57. 

Eeeording  of,  §  68. 

Eecord  of  marriage  without  license,  §  79. 

Eeligious  sect,  declaration  of  marriage  by  members  of.  §  79a. 

Religious  sect,  marriage  of  members  of,  manner  of,  §  79a. 

Remarriage,  where  former  spouse  reputed  dead,  §  61. 

Remarriage,  where  parties  not  divorced,  effect  of,  §  61. 

Remarriage,  within  one  jear  from  interlocutory  decree  in   divorce, 
void,  §  61. 

Restraint  of,  contracts  in,  other  than  of  minor,  void,  §  1676. 

Second,  during  lifetime  of  other  spouse,  effect  of,  §  61. 

Second,  effect  of  where  spouse  not  heard  of  for  five  years,  §61. 

Second,  void,  unless  prior  marriage  annulled,  §  61. 

Second,  within  one  vear  from  interlocutorv  decree  in  divorce,  void, 
§  61. 

Settlements.     See  Husband  and  Wife;  Marriage  Settlements. 

Solemnization,  examination  of  candidates,  §  72. 

Solemnization,  form  of,  §§  68,  71. 

Solemnization,  how  proved,  §  57. 

Solemnization,   license,   correctness   of   statements,    duty   and   power 
regarding,  §  72. 


INDEX.  1159 

MARRIAGE.      (Contiuiied.) 

Soleraniation,    license  to  be  presented,  §  72. 

Solemnization,  license  who  may  be  married  without,  §  79. 

Solemnization,  members  of  particular   religious   denomination,  §  IdVa. 

Solemnization,  necessary,  §§  55,  68. 

Solemnization,  non-compliance   with  statute  by  third  person,  §  68. 

Solemnization,  substantial  requisites,  §  72. 

Solemnization,  what  parties  are  to  declare  on,  §  71. 

Solemnized,  may  be  by  whom,  §  70. 

Solemnized,  how,  §  68. 

Statute  of  frauds,  agreement  upon  consideration  of  marriage,  §  1624. 

Statute  of  frauds,  promise  to  marry,  §  1624. 

Unchastity  as  ground  for  release  from  promise  of,  §  62. 

Validity  of,  action  to  have  determined  and  declared  by  court,  §  78. 

Void,  during  life  of  former  spouse,  when  is,  §  61. 

Void,  if  contracted  within  year  after  entry  of  decree  of  divorce,  §  61. 

Void,  judicial  declaration  of,  §  80. 

Voidable,  if  consent  obtained  by  fraud  or  force,  §  58. 

Voidable,  if  either  physically  incapable,  §  58. 

Ward's  supersedes  guardian  appointed  by  ward,  §§  254,  255. 

What  constitutes,  §  55. 

Whites,  marriage  of  with  negroes,  mongolians  or  mulattoes  void,  §  60. 

Who  may  perform,  §  70. 

Will,  effect  of  marriage  on,  §§  1298-1300. 

Written,  agreement  upon  consideration  of  marriage  to  be,  §  1624. 

Written,  promise  to  marry  need  not  be,  §  1624. 

MARRIAGE  SETTLEMENT. 

Effect  of  record  or  non-recording,  §  180. 

Executed  how,  §  178. 

How  proved,  §  178. 

Settlements,  minors  may  make,  §  181. 

Settlement  to  be  acknowledged  and  recorded,  §§  178,  179. 

MARRIED  WOMAN.     See  Husband  and  Wife. 

Acknowledgment  by,  how  made,  §§  1093,  1187. 

Acknowledgment  of  deed  by,  §  1093. 

Acknowledgments,  defective,  act  curing,  §  1207. 

Adoption  by.     See  Adoption. 

Consent  of  wife,  agreement  to  procure,  not  enforceable,  §  3890. 

Conveyance  by,  how  executed,  §  1093. 

Conveyance  of,  effect  of,  §§  1093,  1187. 

Deposits  by  in  bank,  how  held  and  paid.  Appendix,  tit.  "Banking," 
§16. 

Dividends  on  stock  payable  to,  §  325. 

Homestead  stock  may  be  owned  by,  §  561. 

Husband,  liability  of  for  torts  of  wife,  §  171a. 

Limitation  of  action  to  show  property  conveyed  by,  was  community, 
§  164. 

May  be  sued  alone  for  civil  injuries,  §  171a. 

May  draw  dividends  in  savings  and  loan  society,  §  575. 

May  make  and  withdraw  deposits  in  savings  and  loan  corporation, 
§  575. 

Power  of  attorney,  acknowledgment  of,  §  1094. 

Power  of  attorney,  may  make  and  revoke,  §  1094. 

Property  rights.     See  Husband  and  Wife. 

Proxy  given  by,  §  325. 

Savings  and  loan  stock  may  be  owned  by,  §  575. 

Savings  banks,  married  woman  may  be  depositor  and  draw  divi- 
dends, §  575. 


1160  INDEX. 

MARRIED  WOMAN.      (Continued.) 

Signature  of  husband  not  necessary  on  transfer  of  stock,§  325. 

Signature  of  husband  not  necessary  where  proxy  given,  §  325. 

Stock  in  name  of,  dividends  to  whom  paid,  §  325. 

Stock  in  name  of,  how  transferred,  §  325. 

Stock  in  name  of,  proxy,  §  325. 

Stockholder,  married  woman  as,  has  same  rights  as  if  sole,  §  325. 

Transfer  of  stock  by,  §  325. 

Will,  how  executed  and  proved,  §  1273. 

Will,  may  alter  or  revoke  as  if  unmarried,  §  1272. 

Will,  may  dispose  of  separate  estate  by,  §  1273. 

MARSHALING  ASSETS. 

In  case  of  liens,  §  2899. 

Order  of  resort  to  different  funds,  §  2899. 

When  may  be  required,  §  3433. 

MASCULINE. 

Includes  feminine  and  neuter,  §  11. 

MASTER. 

Ship's.     See  Shipping. 

MASTER  AND  APPRENTICE.     See  Apprenticeship. 

MASTER  AND  SERVANT. 

Abduction  of  servant  forbidden,  §  49. 

Account,  employee's  duty  to,  §  1986. 

Accounting  by  servant,  §  2014. 

Act    giving  lien  to  laborers  in  logging  camps,  §  3065,  Legislation. 

Act  giving  lien  for  laborers  on    thrashing-machines,  §  3061,    Legisla- 
tion. 

Apprenticeship.     See  Apprenticeship. 

Assault,  right  to  protect  against,  §  50. 

Assignment   of  wages   by   employee   of  corjjoration,   act   relative   to. 
Appendix,  tit.  "Corporations." 

Assigment  of  wages,  provision  relating  to,  §  955. 

Assumed  risk,  knowledge  by  injured  servant  as  a  bar,  §  1970. 

Assumption  of  risks  by  servant,  §  1970. 

Care  required  of  employee  for  his  own  benefit,  §  1979. 

Care  required  of  employees  for  reward,  §  1978. 

Care  required  of  gratuitous  employee,  §  1975. 

Compensation,  act  relating  to  assignment  of  wages  by  employees  of 
corporation.     Appendix,  tit.  "Corporations." 

Compensation,  acts  providing  for  manner  of  by  corporation.     Appen- 
dix, tit.  "Corporations." 

Compensation  by  employer's  successor,  §  1998. 

Compensation  for  service  without  employment,  §  2078. 

Compensation,    master    only    liable    for    services    properly    rendered, 
§  1990. 

Compensation  of  employee  continuing  in  service  after  death,  §  1998. 

Compensation,  employee  dismissed  for  cause  entitled  to  up  to  time 
of  dismissal,  §  2002. 

Compensation  of  employee  leaving  for  cause,  §  2003. 

Compensation,  presumption  as  to,  §§  1980,  2011. 

Compensation,  presumption  as  to  rate  of  wages,  §  2011. 

Compensation,   presumption   as   to   where   emplovment   continued   be- 
yond term,  §  1980. 

Confidential    emplovnients,    obligations    defined    bv    title    on    trusts, 
§  1992. 


INDEX.  1161 

MASTER  AND  SERVANT.      (Continued.) 
Confidential  employments.     See  Trusts. 

Continuance  of  service  after  death  or  incapacity  of  employer,  §  1998, 
Contract  of  employment  defined,  §  1965. 
Contract  of  service  limited  to  two  years,  §  198U. 
Contracts  vpaiving  liability  for  negligence,  void,  §  1970. 
Contributory    negligence,   knowledge    by   injured   servant   as   a   bar, 

§  1970. 
Contributory  negligence,  rules  of,  apply  between,  §  1970. 
Death  of  employer,  compensation  of  employee  continuing  in  service 

after,  §  1998. 
Death  of  employer,  duty  to  continue  in  employemnt,  §  1998. 
Death  of  employer,  terminates  employment,  !?§  1996,  1997,  1998. 
Death  of  joint  employee,  duties  of  survivor,  §  1991. 
Definition  of  contract  of  employment,  §  1965. 
Definition  of  employment  for  specified  term,  §  1999. 
Definition  of  servant,  §  2009. 
Degree  of  skill  required  of  employee,  §  1983. 
Delivery  without  demand,  employee  not  bound  to  make,  when,  §  1987. 

Demand,  emi^loyee  not  bound  to  send  without  demand,  §  1987. 
Diligence  required  of  employee  for  his  own  beenfit;  §  1979. 

Diligence  required  of  employee  for  reward,  §  1978. 

Directions  of  master,  duty  of  employee  to  obey,  §  1981. 

Discharge  of  servant,  grounds  for,  §§  2000,  2015. 

Dismissal  for  cause,  compensation,  §  2002. 

Dismissal,  grounds  for,  §§  2000,  2015. 

Dismissal.     See  post.  Termination,  this  title. 

Domestic  servant,  entire  time  of  belongs  to  employer,  §  2013. 

Duties  of  employee  for  his  own  benefit,  §  1979. 

Duties  of  employee  for  reward,  §  1978. 

Duties  of  gratuitous  emplo.yee.  §§  1975-1977. 

Duty  as  regards  sending  things  from  distance,  §§  1987,  2014. 

Employee  not  bound  to  deliver  without  demand,  §  1987. 

Employee  to  comply  with  directions,  §  1981. 

Employee  to  obey,  §  1981. 

Employment,  contract  of,  defined,  §  1965. 

Enticement  of  servant  forbidden,  §  49. 

Everything  acquired  by  employee  belongs  to  employer,  §  1985. 

Expenses  and  losses,  employer  must  indemnitfy  employee  for,  §  1969. 

Fault  of  servant,  termination  of  employment  for,  §  2001. 

Fellow-servant,  master's  liability  for,  §  1970. 

Fellow-servants,  who  are  not,  §  1970. 

Gratuitous  employee,  duties  and  liabilities  of,  §§  1975-1977. 

Hiring,  renewal  of,  presumption  as  to,  §  2012. 

Hiring,  term  of,  presumption  as  to,  §§  2010,  2011. 

Incapacity  of  employee,  discharge  for,  §  2000. 

Incapacity  of  employer  does  not  terminate  relation,  when,  §1998. 

Incapacity  of  employer,  terminates  relation,  §  1996. 

Incapacity  of  servant,  termination  of  employment  for,  §  1997. 

Indemnify  employee,  when  employer  must,  §  1969.  '*' 

Indemnify  employee,  when  employer  need  not,  §  1970. 

Indemnity  against  servants'  acts,  contract  of,  §  2774. 

Injury  to  servant  by  third  person,  forbidden,  §  49. 

Injury  to  servant  from  master's  own  negligence,  master  liable,  §  1971. 

Injury  to  servant,  master  liable  for,  when,  §  1969. 

Injury  to  servant,  master  when  not  liable,  §  1970. 

Joint  employees,  duty  of  survivor,  §  1991. 

Liability  of  servant  for  obeying  unlawful  directions,  §  1969. 

Liable,  master  is  for  losses  from  his  own  negligence,  §  1971. 


1162  INDEX. 

MASTER  AND  SERVANT.      (Continued.) 

Liable,  master  is  for  what  losses  or  injuries,  §  1969. 

Lien  for  services.     See  Services. 

Lien   of  loggers  and  laborers   upon  logs   cut,  §  3065.     Appendix,   tit. 

"Liens." 
Lunch  hour  for  laborers  in  mills  and  logging  camps.     See  Appendix, 

tit.  "Master  and  Servant." 
Master's  liability  to  servant,  in  general,  §  1969. 
Miners,  act  providing- for  protection  of.     Appendix,  tit.  "Mines  and 

Mining." 
Misconduct  as  ground  for  discharge,  §  2015. 
Mutual  right  of  protection,  §§  49,  50. 
Neglect  of  employee,  discharge  for,  §  2000. 

Negligence,  care  required  of  emploj'ee  for  his  own  benefit,  §  1979. 
Negligence,  care  required  of  employee  for  reward,  §  1978. 
Negligence,  care  required  of  gratuitous  employee,  §  1975. 
Negligence,  contracts   waiving  liability  for,   void,  §  1970. 
Negligence,  death  of  employee,  but  one  action  lies,  §  1970. 
Negligence,  death  of  employee,  personal  representative  may  sue  for, 

§  1970. 
Negligence,  death    of    employee,    personal    representative    may    for 

waose  benefit,  §  1970. 
Negligence  in  employment  of  co-servants,  liability  of  master,  §  1970. 
Negligence,  in  performance  of  duty  owed  by  master,  §  1970. 
Negligence,  knowledge    by   servant   of   unsafe    appliances   as    a   bar, 

§1970. 
Negligence,  liability  of  gratuitous  employee  for,  §  1975. 
Negligence,  master  not  bound  to  indemnify  for  losses  from  ordinary 

risks,  §  1970. 
Negligence  of  co-servant,  master  not  liable,  §  1970. 
Negligence  of  employee,  liability  for,  to  employer,  §  1990. 
Negligence  of  master,  liability  for,  §  1971. 
Notice,  employee  to  give  of  thing  received  for  master,  §  1986. 
Obey,  employee's  duty  to,  §  1981. 
Ordinary  risks,  servant  assumes,  §  1970. 

Power  of  attorney,  gratuitious  employee  accepting,  duties  of,  §  1977. 
Preference  to  employer's  interest,  §  1988. 

Presumption    as   to    compensation    of    emploj^ee,  §§  1980,  2011. 
Presumption  as  to  removal  and  wages  where  relation  continued  be- 
yond term,  §  2012. 
Presumption  as  to  term  of  hiring,  §§  2010,  2011. 
Renewal  of  hiring,  presumption  as  to,  §  2012. 
Seduction  of  servant  forbidden,  §  49. 

Sending  things  from  distance,  dutv  as  to,  §§  1987,  2014. 
Servant  defined,  §  2009. 
Servant  not  bound  to  send  anvthing  to  master  through  third  person, 

§  2014. 
Servant  to  pay  over  without  demand,  §  2014. 
Service  without   employment,  §§  2078,  2079. 
-•      Services  must  be  properly  rendered  or  employee  not  liable,  §  1990. 
Skill,  degree  required  of  employee,  §  1983. 
Skill,  employee  must  use  all  he  has,  §  1984. 
Specified  term,  employment  for,  meaning  of,  §  1999. 
Substitute,  liability  of  employee  for,  §  19S9. 
Substitute,  liability  directly  to   employer,  §  1989. 
Surviving  employee,   duty   of,  §  1991. 

Termination  by  death  or  incapacity  of  employee.  §  1997. 
Termination,  by  death  or  incapacity  of  employer,  §  1996. 
Termination,  by  expiration  of  appointed  term,  §  1997, 


INDEX.  1163 

MASTER  AND  SERVANT.      (Continued.) 

Termination  by  extinction  of  subject,  §  1997. 

Termination,  death  operates  as,  §  1997. 

Termination,  discharge  of  servant,  grounds  for,  §§  2000,  2015. 

Termination  of  employment  for  specified  term  by  employee  for  breach 

by   employer,  §  2001. 
Termination  of  employment  for  specified  term  for  breach  of  duty  by 

employee,  §  2000. 
Termination    of   employment   for   specified   term   for   neglect    or   in- 
capacity of  employee,  §  2000. 
Termination   of   employment  without  specified  term  may  be  at  will 

of  either  party,  §  1999. 
Termination  of  relation,  meaning  of  employment  for  specified  term, 

§  1999. 
Termination   of   relation    not   worked   by   death   of   employer,   when, 

§§1996,  1998. 
Termination  of  relation,  what  works  a,  §§  1996,  1997. 
Termination,  presumption  as  to  renewal  and  wages  where  employment 

continues    after,  §§  1980,    2012. 
Term  of  hiring,  presumption  as  to,  §§  2010,  2011. 
Term  of  service,  contract  for  services  limited  to  two  years,  §  1980. 
Things  acquired  by   employee  belong  to  employer,  §  1985. 
Time  of  servant,  how  far  belongs  to  master,  §  2013. 
Time,  ten  hours  a  day  only  need  give  employer,  §  2013. 
Unlawful  directions,  liability  of  master  to  servant  obeying,  §  1969. 
Usage,  duty  of  employee  to  conform  to,  §  1982. 
What  things  acquired  by  employee  belong  to  employer,  §  1985. 
Wages,  assignment  of,   provision   relating  to,  §  955. 

MATE.     See  Shipping. 

MAXIMS. 

Acquiescence  in  error  takes  away  right  to  object,  §  3516. 

Benefits,  one  who  takes  must  bear  burden,  §§  158!J,  3521. 

Certain,  that  is  certain  which  can  be  made  certain,  §  3538. 

Code,  do  not  qualify  provisions  of,  but  are  intended  to  aid  applica- 
tion of,  §  3509. 

Consent,  one  consenting  to  act  not  wronged  by  it,  §  3515. 

Contemporaneous   construction   is   the   best,  §  3535. 

Earliest  preferred  where  rights  equal,  §  3525. 

Enumeration   of,  §§  3510-3543. 

Grant  presumed  to  carry  whatever  essenial  to  use,  §  3522. 

Greater  contains  the  less,  §  3536. 

Idle    acts,   law   neither   does   nor   requires,  §  3532. 

Impossibilities,  law  never  requires,  §  3531. 

Incident  follows  principal,  not  principal  the  incident,  §  3540. 

Interpretation  giving  etfect  preferred  to  one  making  void,  §  3541. 

Interpretation  must  be  reasonable,  §  3542. 

Law  disregards  trifles,  §  3.533. 

Law  does  not  interpose  between  persons  equally  in  right  or  wrong, 
§  3524. 

Law  established  for  public  reason  cannot  be  contravened,  §  3513. 

Law  helps  the  vigilant  father  than  those  who  sleep  on  their  rights, 
§  3527. 

Law  intended  for  one's  benefit  may  be  waived,  §  3513. 

Law  neither   does  nor  requires  idle  acts,  §  3532. 

Law  never  requires  impossibilities,  §  3531. 

Law  respects  form  less  than  substance,  §  3528. 

Loss,  upon  whom  falls  where  one  of  two  iimocejit  persons  must  suffer, 
§  3543, 


1164  INDEX. 

MAXIMS.     (Continued.) 

No  man  responsible  for  what  no  man  ean  control,  §  3521)? 

No  one  should  suffer  by  act  of  another,  §  3520. 

One  cannot  take  advantage  of  his  own  wrongs,  §  3517. 

One  failing  to  forbid  what  is   done   on  his  behalf  deemed   to  have 

bidden  it,  §  3519. 
One  must  so  use  his  own  rights  as  not  to  infringe  rights  of  another, 

§  3514. 
Particular  expressions  qualify  general,  §  3531. 
Possession,  one  fraudulently  dispossessing  himself  of  thing  treated  as 

if  still  in  possession,  §  3518. 
Principal  does  not  follow  incident  but  incident  the  principal,  §  3540. 
Priority  in  time  makes  priority  in  right,  when,  §  3525. 
Purpose  must  not  be  changed  to  injury  of  another,  §  3512. 
Reason  for  rule  ceasing,  rule  ceases,  §  3510. 
Reason  the  same,  rule  the  same,  §  3511. 
Remedy  exists  for  every  wrong,  §  3523. 
Rule  ceases  where  reason  ceases,  §  3510. 
Rule  the  same  where  reason  is  the  same,  §  3511. 
Superfluity  does  not  vitiate,  §  3537. 
That  is  certain  which  ean  be  made  certain,  §  3538. 
That  is  regarded  as  done  which  ought  to  be  done,  §  3529'. 
That  which  does  not  appear  to  exist  regarded  as  if  it  did  not  exist, 

§  3530. 
Time  does  not  confirm  void  act,  §  3539. 
Trifles,  law  disregards,  §  3533. 

Vigilant,  law  helps,  before  those  who  sleep  on  their  rights,  §  3527. 
"^■'aiver  of  law  established  for  public  reason,  right  as  to,  §  3513. 
Waiver  of  law  intended   for  one's  benefit,  §  3513. 

MECHANICS'  INSTITUTE.     See  tit.   "Chambers   of   Commerce,  Boards 
of  Trade  anil  Moehanics'  Institutes. 
Act   validating  acknowledgments  by.     Appendix,   tit.   "Acknowledg- 
ments." 

MECHANIC'S  LIEN. 

Homestead,  liability  for,  §  1241. 

Regulated  by  Code' of  Civil  Procedure,  §  3059. 

MEETINGS. 

Corporate.     See  Corporations,  X. 
Particular  bodies,  of.     See  particular  title. 

MEMORANDUM.     See  Statute  of  Frands. 

Auctioneer's,  binding  on  parties,  §§  1798,  2363. 
Declarations   of  trust,   of,  §  2254. 
On  contract  for  sale  of  personal  property,  §  1739. 
On  contract  for  sale  of  real  property,  §  1741. 

MENACE. 

Consent  to  contract  obtained  by,  effect  of,  §§  1567,  1568. 
Consists  in  what,  §  1570. 
Rescission  for,  §  1689. 

MERCHANDISE. 

Implied  warranty  as  to.  §§  1768-1771. 

MERGER. 

Declarations,  merger  of  in  trust,  §  2254. 
Dominant  and  servient  estate,  §  811. 
Interest,  of,  when  destroys  hiring,  §  1933, 


INDEX.  1165 

MERGER.      (Continued.) 

Interests,  of,  destroys  survitude,  §  811. 
Oral  negotiations  merged  in  writing,  §  1625. 
Writing  supersedes  oral  negotiations,  §  1625. 

MESSAGES.     See   Carriers   of  Messages;   Telegraph   Corporations;    Tele- 
phone Corporations. 
Carrier  oi,  damages  for  breach  of  obligation  to  receive,  §  3315. 
Duty  of  carriers  of  to  deliver,  §  2161. 

METER. 

Gas,  §§  628,  631. 

MILL  SITE.     See  Mines  and  Mining. 

MINERALS.     See  Mines  and  Mining. 

MINES  AND  MINING.     See  Mining  Corporations. 

Annual  work,  affidavit  of,  fee  for  recording,  §  1426n. 

Annual  work,  affidavit  of  or  certified  copy  of,  as  evidence,  §  1426m. 

Annual  work,  affidavit  of  time  to  file,  §  1426m. 

Annual  work,  affidavit  of,  what  to  set  out,  §  1426m. 

Annual  work,  delinquent  co-owner,  notice  and  affidavit  as  evidence, 

§  14260. 
Annual  work,  delinquent  co-owner,  notice  to  and  affidavit  of,  record- 
ing, §  1426o. 
Annual  work,  delinquent  co-owner,  notice  to,  how  given,  §  1426o. 
Annual  work,  delinquent  co-owner,  paj'nient  by  and  rights  on  refusal 

of  co-owner  to  give  writing  acknowledging,  §  1426o. 
Annual  work,  failure  to  perform,  locator  disqualified  from  relocating 

within  tkree  years,  §  1426s. 
Annual  work,  $100  yearly  required,    §  14261. 
Claims,  recording  affidavits  of  work  and  notice,  §  1159. 
Claims,  recording  notice  of  location,  §  1159. 

District  rules  and  regulations  not  affected-  by  mining  law,  §  1426r. 
Districts  not  affected  by  mining  law,  §  1426r. 
Fixtures  attached  to,  what  are,  §  661. 
Hydraulic  mining,  §§  1424,  1425. 

Lode  claim,  boundaries,  length  and  width  of,  §  1426a. 
Lode  claim,  extent    of    allowed,  §  1426a. 
Lode  claim,  how  located,  §  1426. 

Lode  claim,  notice  of  location,  fee  for  recording,  §  1426b. 
Lode   claim,   notice   of   location   to   be   recorded   within   thirty   days, 

§  1426b. 
Lode  claim,  notice  of  location,  where  posted,  §  1426. 
Lode  claim,  notice  what  to  state,  §  1426. 
Lode  claims,,  boundaries  of,  defining,  §§  1426,  1426a. 
Lode  claims,  who   may  locate,  §  1426. 
Mill  site  claim,  extent   of,  §  1426j. 
Mill  site  claim,  located  how,  §  1426J. 

Mill  site  claim,  notice  of  location,  fee  for  recording,  §  1426k. 
Mill  site  claim,  notice    of    location,    posting    of,    and    contents    of, 

§  1426J. 
Mill  site  claim,  notice  of  location  to  be  recorded  within  thirty  days, 

§  1426k. 
Mill  site  claim,  who  may  locate,  §  1426J. 
Minerals,  right  to  take,  §§  801,  802. 
Notice  of  location,  amended   or  additional,  filing,  does  not  preclude 

proving  title  under  previous  locations,  §  1426h. 
Notice  of  location,  amended  or  additional,  right  to  file,  §  1426h. 


1166  INDEX. 

MINES  AND  MINING.      (Continued.) 

Notice  of  location,  attaching  survey  and.  certificate  of  surveyor  to, 
and  filing  with,  effect  of,  §  142tji. 

Partnership,  mining,  §§  2511-2520.     See  Mining  Partnership. 

Placer  claim,  boundaries,  descriptions,  marking  and  staking  where 
United  States  survey  over  tract,  §  1426c. 

Placer  claim,  boundaries    of,    marking   and    defining,  §  1426e. 

Placer  claim,  how  located,  §  1426c. 

Placer  claim,  notice  of  location,  fee   for  recording,  §  1426d. 

Placer  claim,  notice  of  location  to  be  recorded  within  thirty  days, 
§ 1426d. 

Placer  claims,  notice  of  locations,  what  to  contain,  §  1426c. 

Placer  claims,  notice  of  location,    where    posted,  §  1426c. 

Record  of  location  to  be  received  in  evidence,  §  1426p. 

Eecords  of  instruments  required  to  be  recorded,  certified  copies  of, 
admissible,  §  1426q. 

Right  of  tenant  for  years  to  work  mine  or  quarry,  §  819. 

Survey  and  certificate  of  surveyor,  attaching  to  and  filing  with  loca- 
tion notice,  effect  of,  §  14261. 

Tunnel  claim,  boundary  lines,  how  established,  §  1426f. 

Tunnel  claim,  how  located,  §  1426e. 

Tunnel  claim,  length  of,  §  1426f. 

Tunnel  claim,  notice  of  location  to  be  recorded  within  thirty  days, 
§ 1426g. 

Tunnel  claim,  notice  of  location,  what  to  contain,  §  1426e. 

Tunnel  claim,  notice  of  location,  where  posted,  §  1426e. 

MINING  CORPORATIONS. 

Books,  right  of  examination   of,  §  588. 

Books,  right  to  make  copies  from,  §  588.  * 

Books  to  be  kept  at  some  place  in  state,  §  588. 

Books  to  be  kept  open  for  inspection,  §  588. 

Books,  what  to  show,  §  588. 

Consolidation,  authorized,  §  5S7a. 

Consolidation,  calling  meeting  of  stockholders  to  elect  directors, 
§  587a. 

Consolidation,  certificate  of,  filing  of,  §  5S7a. 

Consolidation,  certificate,  what  to  contain  and  who  to  sign,  §  587a. 

Consolidation,  creditors  not  to  be  affected,  §  587a. 

Consolidatiou,  how  effected,  §  5S7a. 

Examination  of  ground,  stockholder  has  right  of,  §§  588,  589. 

Examination,  order  for,  duty  of  superintendent  on  receiving,  §  589. 

Examination,  order  for,  liability  of  president  failing  to  issue,  §  590. 

Examination  order  for,  president  to  issue  to  stockholder  on  applica- 
tion, §  589. 

Examination,  order  for,  punishment  of  superintendent  failing  to  obey, 
§589. 

Inspection  of  books,  right  of,  §  588. 

Inspection  of  reports,  accounts  and  correspondence  of  superintendent, 
right  of,  §  588. 

May  consolidate,  §  587a. 

Monthly  statements  and  balances,  posting,  §  5SS. 

Monthly  statements,  verification  of,  §  588. 

Monthly  statements,  what  to  show,  §  5SS. 

Penalty  for  failure  to  post  monthly  statements  and  reports,  §  590. 

Penalty  for  refusal  or  neglect  of  president  to  issue  order  of  inspec- 
tion, §  590. 

Penalty  where  superintendent  fails  to  obev  order  for  examination 
§  589. 


INDEX.  1167 

MINING  CORPORATIONS.      (Continued.) 

Permit  to  examine,  duty  of  superintendent  on  receiving,  §  589. 

Permit  to  examine,  duty  to  issue,  §  589. 

Property,  right  to  examine  and  talte  samples,  §§  588,  589. 

Protection  of  miners,  act  providing  for.  Appendix,  tit.  "Mines  and 
Mining." 

Eeceipts  and  expenditures,  liability  of  directors  failing  to  make  and 
post  report,  §  590. 

Receipts  and  expenditures,  monthly  report  of  bv  superintendent, 
§  588. 

Receipts  and  expenditures,  monthly  statement  to  be  published, 
§  588. 

Receipts  and  expenditures,  secretary  to  keep  books  of,  §  588. 

Receipts  and  expenditures,  statements  of,  verification  and  posting 
of,  §  588. 

Stockholder,  right  to  examine  books  and  take  copies,  §  588. 

Stockholder,  right  to  examine  property  and  take  samples,  §§  588,  589. 

Stock  transfer  agencies,  establishment  in  other  states  authorized, 
§  586. 

Stock  transfer  agencies,  governed  by  by-laws  and  directors  of  corpo- 
ration, §  586. 

Stock  transfer  agencies,  stock,  how  transferred  at,  §  587. 

Stock  transfer  agency,  stock  not  issued  at  unless  certificate  surren- 
dered, §  587. 

Stock  transfer  agency,  stock  transferred  at,  how  signed,  §  587. 

Stock  transfer  agencies,  transfer  at,  validity  of,  §  586. 

Superintendent,  accounts,  correspondence  and  report  open  for  in- 
spection, §  588. 

Superintendent,  duty  of,  on  receiving  order  for  examination,  §  589. 

Superintendent  failing  to  obey  order  of  examination,  punishment  of, 
§  589. 

Superintendent,  monthly  report  of,  §  588. 

Superintendent,  report  as  to  ore  and  discoveries,  §  588. 

MINING  PARTNERSHIP. 

Dissolved,  is  not,  by  sale  of  interest,  §  2516. 

Express  agreement  not  necessary  to  become,  §  2512. 

Express  authority  necessary  to  bind,  §  2519. 

Lien  of  partners  on  property,  §  2514. 

Mine  is  firm  property,  §  2515. 

One  partner  cannot  bind  except  by  express  authority,  §  2519. 

Owners  of  majority  of  shares  govern,  §  2520. 

Profits  and  losses  shared  how,  §  2513. 

Purchaser  in  takes  subject  to  what  liens  and  claims,  §  2517. 

Purchaser  in  takes  with  notice  of  liens,  when,  §  2518. 

Purchaser  of  interest  becomes  partner,  §  2516. 

Relation  arises  how,  §  2512. 

Sale  of  interest  in,  does  not  dissolve,  §  2516. 

Transfer  by  partner  does  not  dissolve,  §  2516. 

When  exists,  §  2511. 

MINISTER.  ' 

Acknowledgments  outside  of  United  States,  may  take,  §  1183. 
Marriages,  may  solemnize,  §  70. 

MINOR.     See  Infants. 

MISDEMEANOR. 

Acting  as  agent  of  foreign  corporation  without  complying  with  stat- 
ute, §  645. 


1168  INDEX. 

MISDEMEANOR.      (Coutiniied.) 

Agent  of  foreign  building  and  loan  association,  not  complying  with 
statute,  guilty  of,  §  646. 

Apprentice,  enticing  or  harboring,  §  275. 

Failure  of  bank  to  publish  list  of  unclaimed  deposits,  §  583b. 

Failure  to  comply  with  statute  in  advertising  capital  stock,  §  583a. 

Failure  to  show  names  of  persons  in  unincorporated  bank,  §  582, 

False  statements  to  mutual  insurance  company,  §  453j. 
-  False   financial   statement   of   affairs   of  corporation,   signing  a  mis- 
demeanor, §  302a. 

Foreign  agent  commits  by  non-comj^liance  with  statute,  §  645. 

Humane  officer  acting  as  without  authority,  §  607f. 

Humane  officer,  issuing  false  certificate  as  to,  §  607f. 

Humane  officer,  resisting,  §  607f. 

Loans  by  title  insurance  company  in  violation  of  statute,  §  453z. 

Mortgage  insurance  corporations,  violation  of  provisions  of  statute 
by,  §  453cc. 

Eesisting  officer  of  society  for  prevention  of  cruelty  to  children  or 
animals,  §  6o7d. 

MISREPRESENTATION.     See  Fraud. 

MISTAKE. 

As  affecting  right  of  specific  performance,  §  3391. 

Consent  obtained  by,  §§  1567,  1568. 

Contract  not  expressing  intent  because  of,  intent  governs,  §  1640. 

Disregarding  erroneous  parts  of  writing,  §  1640. 

Fact  or  law,  may  be  either  of,  §  1576. 

Fact,  what  is,  §  1577. 

Foreign  laws,  of,  mistake  of  fact,  §  1579. 

Law,  of,  what  is,  §  1578. 

Property  acquired  by  restoration  of,  §  1713. 

Reformation  of  contract  for,  §  3399. 

Rescission  for,  §§  1689,  1690,  3407. 

Rescission  for,  what  stipulations  do  not  defeat,  §  1690. 

Restoration  of  property  obtained  by,  demand,  §  1713. 

Restoration  of  thing  received  through  mistake,  notice  and  demand, 

§  1713. 
Specific  performance,  effect  on,  §  3391. 
Trust  arising  from,  §  2224. 
Will,   in,  §  1340. 

MOCK  AUCTION.     See  Auctions. 

MONEY, 

Breach  of  contract  to  pay  money  only,  damages,  §  3302. 
Corporation  not  to  issue  bills,  notes,  etc.,  to  circulate  as,  §  356. 
Exchange  of,  §  1804. 
Interest  on.     See  Interest. 
Loan  of.     See  Loan. 

Payment  of,  time  where  no  time  specified,  §  1657. 
r  Railroads,  power  to  borrow,  §  456. 
Warranty  on  exchange  of,  §  1807. 

MONGOLIANS. 

License  for  marriage  between,  and  whites,  not  to  issue,  §  69. 
Marriage  between,  and  whites  forbidden,  §  60. 

MONTH. 

Defined,  §  14. 


INDEX.  1169 

MONUMENT. 

Duty  of  coterminous  owners  respecting,  §  S'il. 

MORAL  OBLIGATION. 

As  a  consideration,  §  1606. 

MORTGAGE.     See  Lien. 

Absolute  deed  may  be  shown  to  be  subject  to  defeasance,  §  2925. 

Absolute  deed  subject  to  defeasance,  defeasance  not  notice  unless  re- 
corded, §  2950. 

Acknowledgment  of  and  effect  of,  §  2952. 

Adversely  held  property  may  be  mortgaged,  §  2921. 

After-acquired  title  inures  to  mortgagee,  §  2930. 

Alienation,  property  liable  in  inverse  order  of,  §  2S99. 

Assignment  of  debt,  effect  of,  on  the  security,  §  2936. 

Assignment  of,  may  be  recorded,  §  2934. 

Assignment,  record  of  as  notice,  §§  2934,  2935. 

Benevolent  association,  by,  §  598. 

Bona  fide  mortgagee,  rights  against  unrecorded  instrument,  §  1214. 

Bottomry  not  subject  to  law  of,  §  2942. 

Building  and  loan  association  may  make,  §  640. 

By  religious,  social,  or  benevolent  association,  §  598. 

Certified,  how,  and  effect  of  certifying,  §  2952. 

Chattel  mortgages.     See  Chattel  Mortgages. 

Conveyance  includes  when,  §  1216. 

Created,  how,  §  2922. 

Created,  must  be  by  writing,  §  2922. 

Deed  absolute  may  be  shown  to  be  subject  to  defeasance,  §  2925. 

Deed  absolute  subject  to  defeasance,  defeasance  not  notice  unless  re- 
corded, §  2950. 

Deed  deemed  a,  when,  §§  2924,  2925. 

Defeasance,  deed  cannot  be  shown  to  be  subject  to,  against  bona  fide 
purchasers,  §  2925. 

Defeasance,  deed  may  be  shown  to  be  subject  to,  §  2925. 

Defeasance,  not  notice  to  third  person  unless  recorded,  §  2950. 

Defined,  §  2920. 

Discharge,  certificate  of,  how  executed,  §  2939. 

Discharge,  certificate  of  to  be  given  to  mortgagor,  §  2941. 

Discharge,   duty   of   mortgagee  to   enter    and    liability    for    refusal, 
§  2941. 

Discharged  of  record,  how,  §§  2938,  2939. 
-  Discharge,  liability  for  refusal  to  execute  certificate  of,  §  2941. 

Discharge  of  record  by  foreign  executor,  §  2939^2- 

Discharge  of  record  by  foreign  guardians,  §  29391/2. 

Discharge,  recording  certificate  of,  §  2940. 

Encumbrance  includes  what,  §  1114. 

Execution  of,  formalities,  §  2922. 

Extended,  how,  §  2922. 

Extends  to  what,  §  2926. 

Extension  must  be  in  writing,  §  2922. 

Factor  may  not,  §  2368. 

Foreclosure  of  right  of  redemption,  §  2931. 

Foreign  executor  or  guardian,  discharge  by,  §  29391X.. 

Form  of,  §  2948. 

Growing  crop,  lien,  continuance  of  after  severance,  §  2972. 

Homestead,  liability  for,  §  1241. 

Homestead,  mortgaged  how,  §  1242. 

How  created,  extended  or  renewed,  §  2922. 
Civ.  Code — 74 


1170  INDEX. 

MORTGAGE.      (Continued.) 

Insurance  by  mortgagor  assigned  to  mortgagee,  effect  of,  §  2541. 

Insurance  by  mortgagor  in  favor  of  mortgagee  effect  of,  §  2541. 

Insurance  on  mortgaged  property,  §§  2541,  2542. 

Lien  extends  to  what,  §  2926. 

Lien  of,  is  independent  of  possession,  §  2923. 

Lien  of,  is  special,  unless  otherwise  agreed,  §  2923. 

Lien  on  growing  crop,  continuance  after  severance,  §  2972. 

Liens,  priority  of  mortgage  for  price  over,  §  2898. 

Liens,  subject  to  provisions  of  chapter  on  §  2877. 

Mortgagor  must  not  impair  security,  §  2929. 

Order  of  resort,  where  property  transferred  at  various  times,  §  2899. 

Personal  obligation,  is  not,  §  2928. 

Personal  performance  not  necessary  in  absence  of  covenant,  §  2928. 

Possession,  agreement  may  be  made  for,  without  new  consideration, 
2927. 

Possession,  mortgagee  not  entitled  to,  unless. authorized,  §  2927. 

Possession,  mortgagor  may  agree  to  mortgagee's,  without  new  con- 
sideration, §  2927. 

Power  of  attorney  to  execute,  how  executed,  §  2933. 

Power  of  sale,  may  be  conferred,  §  2932. 

Power  or  sale,  when  deemed  part  of  security,  §  858. 

Power  to  sell,  assignee  may  exercise,  §  858. 

Power  to  sell  passes  to  assignee,  §  85S. 

Priority  of  a  purchase  money  mortgage  over  liens,  §  2898. 

Property  adversely  held  may  be  mortgaged,  §  2921. 

Property  that  may  be  mortgaged,  §  2947. 

Proved,  how  and  effect  of,  §  2952. 

Eailroad,  §  456. 

Eeal  property,  what  interest  in  may  be  mortgaged,  §  2947. 

Eecording  certificate  of  discharge,  §  2940. 

Eecording  defeasance  where  deed  is  intended  as  mortgage,  §  2950. 

Eecording,  duty  as  to,  §  1164. 

Eecording,  in  general,  §  2952. 

Eecording,  manner  and  effect,  §  2952. 

Eecording.     See  Eecording. 

Eecord  of  assignment  as  notice,  §§  2934,  2935. 

Eedemption,  §§  2903-2905. 

Eedemption,  right  of,  how  foreclosed,  §  2931. 

Eeligious  association,  by,  §  598. 

Eenewal  must  be  in  writing,  §  2922. 

Eenewed,  how,  §  2922. 

Eespondentia  not  subject  to  law,  §  2942. 

Sale,  power  of.     See  ante,  this  subject. 

Satisfaction,   certificate,  liabilitv  of  mortgagee  for  refusal  to  give,' 
§  2941. 

Satisfaction,  certificate  of  discharge,  how  executed,  §  2939. 

Satisfaction,  certificate  to  be  given  mortgagor,  §  2941. 

Satisfaction,  discharged  of  record,  how,  §§  2938,  2939. 

Satisfaction,  duty  of  mortgagee  on,  §  2941. 

Satisfaction  of  by  foreign  executor,  administrator  or  guardian,  man- 
ner of,  §  2939Vo. 

Satisfaction    of,    foreign    executor,    administrator    or    guardian    mav 
satisfy,  §  2939y2. 

Satisfaction,  duty   of  mortgagee   to   enter  and  liability  for  refusal, 
§  2941. 

Satisfaction,  foreign  executors  or  guardians,  discharge  of  by,  §  2939%. 

Satisfaction,  recording  certificate  of  discharge,  §  2940. 

Ship-master's  power  to  hypothecate,  §  2377. 


INDEX.  1171 

MORTGAGE.     (Contiuued.) 

Ship,  of,  code  sections  not  applicable,  §  2971. 

Ship,  of,  necessity  of  recording  and  where  recorded,  §  2958. 

Statute  of  frauds,  extension  or  renewal  must  be  in  writing,  §  2922. 

Statute  of  frauds,  must  be  in  writing,  §  2922. 

State   of   frauds,   power   of   attorney   to   execute   mortgage    must   be 

written,  §  2933. 
Title  subsequently  acquired  inures  to  mortgagee,  §  2930. 
Transfer  deemed  a,  when,  §  2924. 
Transfer  of  interest  in  property,  when  a  mortgage  and  when  a  pledge, 

§  2924. 
Transfers  of  interest  in  property,  what  deemed  to  be,  §  2924. 
Trust,  express,  to  mortgage  realty,  §  857. 
Violation  of  code  provisions  by  officer,  employee  or  agent  of  mortgage 

insurance  corporation,  §  453dd. 
Wagon-road  corporation,  by,  §  522. 
Waste,  mortgagor  must  not  commit,  §  2929, 
What  transfers  of  interest  in  property  deemed  to  be,  §  2924. 
Will,  effect  of  encumbrance  on,  §  1302. 
Will  not  revoked  by,  §  1302. 

Writing,  extension  or  renewal  must  be  in,  §  2921. 
Writing,  power  of  attorney  to  execute  mortgage  must  be  in,  §  2933. 
Written,  must  be,  §  2922. 

MORTGAGE  INSURANCE  COMPANIES. 

Amount  and  kind  of  securities  that  may  be  guaranteed,  §  453cc. 

Capital  stock,  amount  required  before  doing  business,  §  453cc. 

Capital  stock,  reduction  of,  limit  upon  right  of,  §  453cc. 

Certificate  of  authority  to  do  business  from  insurance  commissioner 
necessary, §  453cc. 

Certificate  of  insurance  commissioner  of  compliance  with  law  neces- 
sary before  doing  business,  §  453cc. 

Compliance  by  with  requirements  of  law  applicable  to  insurance  com- 
panies necessary,  §  453aa. 

Definition  of  entire  mortgage  guaranty,  §  453bb. 

Definition  of  mortgage  insurance,  §  453bb. 

Definition  of  mortgage  participation  certificates,  §  453bb. 

Definition  of  "policy  of  mortgage  insurance,"  §  453bb. 

Definition  of  security,  §  453bb. 

Dividends,  when  only  can  be  declared,  §  453dd. 

Entire  mortgage  guaranty,  defined,  §  453bb. 

Investment  of  funds  of,  §  421,  subd.  6. 

Investment  of  funds  of  insurance  companies  in  notes  or  bonds  secured 
by  policies  of,  §  421. 

Investments  by,  may  invest  capital,  surplus  and  accumulations  in 
what  obligations,  §  453ee. 

Investments  not  to  be  made  in  capital  stock  of  other  corporations, 
§  453cc. 

Kind  and  amount  of  securities  that  may  be  guaranteed,  §  453cc. 

Loans  not  to  be  made  directly  or  indirectly  to  officers  or  directors, 
§  453cc. 

Loans  not  to  be  made  on  capital  stock  of  other  corporations,  §  453cc. 

Loans,  stock  of  water  or  power  company  may  be  used  and  disposed 
of  for  protection  of,  §  453cc. 

Loans,  stock  of  water  or  power  company,  right  to  take  in  pledge, 
§  453cc. 

Mortgage  participation  certificate  defined,  §  453bb. 

Mortgage  participation  certificates  acceptable  as  part  of  securities 
deposited  by  trust  company  with  state  treasurer.  Appendix,  tit, 
"Banking,"  §§  96,  99. 


1172  INDEX. 

MORTGAGE  INSURANCE  COMPANIES.      (Continued.) 

Mortgage  x)articipation  certificates  as  legal  investments  for  trust  or 
corporate   funds,  §  453ff. 

Mortgage  participation  certificates,  building  and  loan  corporations 
may  invest  surplus  in  notes  or  bonds  secured  by,  §  647. 

Mortgage  participation  certificates,  premiums  required  to  be  paid 
payable   out   of  income  of  bonds  secured,  §  453ff. 

Mortgage  particiiJation  certificates,  stock  of  water  or  power  com- 
pany may  be  assigned  as  part  of  security  for,  §  453cc. 

Mortgage  participation  certificates  to  be  accepted  as  part  of  trust 
fund  deposited  with  state  by  trust  or  insurance  companies, 
§  4D3ff. 

Mortgage  participation  certificates,  withdrawal  of  securities  and  sub- 
stitution   of    others,   right   of,  §  453tf. 

Policies,  issuance  of  is  not  creation  of  debt  or  indebtedness,  §  453cc. 

Policies,  limit  on  amount  of  that  can  be  issued,  §  453cc. 

Policies  of  mortgage  insurance  acceptable  as  part  of  securities  de- 
posited by  trust  company  with  state  treasurer.  Appendix,  tit. 
"Banking,"  §  96. 

Policies  of  mortgage  insurance,  building  and  loan  corporations  may 
invest  in  notes  or  bonds  secured  by,  §  647. 

Policy  of  mortgage  insurance  defined,  §  453bb. 

Premiums  required  to  be  paid  payable  out  of  income  of  notes  or 
bonds   secured,  §  453fif:. 

Keports,  appraisements  of  properties,  by  whom  to  be  made,  §  453gg. 

Eeports,  appraisements  of  properties,  signing,  certifying  and  verify- 
ing, §  453gg. 

Eeports,  appraisements  of  properties  to  be  filed  with,  §  453gg. 

Eeports,  appraisements   of  properties',  what  to  state,  §  453gg. 

Eeports,  penalties  for  failure  to  file,  §  453gg. 

Eeports  to  be  made  quarterly,   §  453gg. 

Eeports  to  be  made  to   insurance   commissioner  by,  §  453gg. 

Eeports  to  be   verified,  §  453gg. 

Eeports,  what  to  state,  generally,  §  453gg. 

Eeports,  what  to  state,  when  policies  constitute  entire  mortgage  guar- 
anties, §  4o3gg. 

Eeports,  what  to  state  when  policies  constitute  mortgage  participa- 
tion certificates,  §  453gg. 

Securities  guaranteed  by  policies  of  mortgage  insurance  as  legal  in- 
vestments for  trust  or  corporation  funds,  §  453fl:. 

Securities  guaranteed  by  policies  of,  to  be  accepted  as  part  of  trust 
funds  deposited  with  state  by  trust  or  insurance  companies, 
§  453ff. 

"Security,"  meaning  of,  §  453bb. 

Subject  to  requirements  of  law  applicable  to  insurance  companies, 
§  453aa. 

Surplus,  all  additions  to,  subject  to  provisions  of  law  governing, 
§  4o3dd. 

Surplus,   amount   of  and  how   accumulated,  §  453dd. 

Surplus,  defined,  §  453dd. 

Surplus,  uuist  accumulate,  §  453dd. 

Surplus  to  be  maintained  as  security  for  policy-holders,  §  453dd. 

Surplus  to  be  restored  if  impaired,  §  45odd. 

Violation  of  provisions  of  statute  by,  effect  of,  §  453cc. 

What  included  in  term  "mortgage  insurance  company,"  §  453bb. 

MOTHER.     See  Parent  and  Child. 
Apprenticeship,  consent  to,  §  265. 
Custody  of  child,  not  transferred  without  her  consent,  §  197. 


INDEX.  1173 

MOTHER.      (Continued.) 

Illegitimate,  of,  consent  of  to  liis  adoption,  §  224. 
Illegitimate,  of,  entitled  to  custody  and  earnings,  §  200. 
Illegitimate,  of,  succeeds    to    his    property,  §  1388. 

MULATTOES. 

License  for  marriage  between  and  whites,  not  to  issue,  §  69. 
Marriages  between,  and  whites  void,  §§  60,  69. 

MULTIPLICITY  OF  SUITS. 

Injunction  to  prevent,  §§  3422,  3423. 

MUNICIPAL  CORPORATIONS. 

Fares  on  railroads  in  cities  over  100,000,  act  limiting.  Appendix,  tit. 
"Kailroads." 

Franchise  granted  by  not  affected  by  extension  of  corporate  exist- 
ence, §  401. 

Franchises,  acts  relating  to  sale  of  and  governing  conditions  of  sale. 
Appendix,  tit.  "Eailroads." 

Franchises  for  elevated  or  ui'dergronnd  road,  power  to  grant,  §  492. 

Franchises  for  roads  for  horseless  vehicles,  §  524. 

Franchises  for  street  railway,  act  limiting  time  within  which  may 
be  granted.     Appendix,  tit.  "Eailroads." 

Franchises,  railroad,  power  to  grant,  §  493. 

Injunction  not  granted  to  prevent  legislative  act,  §  3423. 

Limit  of  tern?  of  lease  of  property  of,  §  718. 

Limit  upon  lease  of  agricultural  land  owned  by,  §  717. 

Limit  of  lease  of  sewer  farm  owned  by,  §  718. 

Limit  of  lease  of  sewage  by,  §  718. 

Population,  how  ascertained  to  determine  capital  stock  of  trust 
companies,  §  290a. 

Private  and  public  corporations  distinguished,  §  284. 

Societies  to  prevent  cruelty  to  children  and  animals,  authorized  to 
make  allowance  to,  §  607e. 

Street  railways,  permitting  two  or  more  to  use  same  tracks,  §  499. 

Streets,  lands,  or  waters  of,  right  of  railroad  to  use,  §  470. 

Tracks  for  grading  purposes,  granting  right  for,  §  509. 

Water  company  supplying  water  to,  rights  and  duties  of,  §§  548,  549. 

Waters,  appropriation   of.     See  Waters.  . 

Will,  power  to  take  under,  §  1275. 

MURDER. 

One  convicted  of  murdering  decedent  not  to  succeed  to  estate,  §  1409. 

MUTUAL. 

Consent,  when  deemed  to  be  without  regard  to  the  fact,  §  1580. 
Consent,  when  onh--  is,  §  1580. 

MUTUAL  BENEFIT  AND  LIFE   ASSOCIATIONS.     See   Mutual   Life, 
Health,  Accident  and  Annuity  Insurance  on  Assessment  Plan. 
Annual   payments,  §  453. 
Articles  of  incorporation,  filing  of,  §  452a. 

Articles  of  incorporation,   signing   and    acknowledging,  §  452a. 
Articles  of  incorporation,  what  to  contain,  §  452a. 
Assessments,  limit  on  power  to  levy,  §  453. 
Assessments,  power  to  levy,  §  453. 
By-laws,  §  453. 

Death  benefits,  limit  on,  §  452a. 
Formation  of,  authorized,  §  452a. 
Formation  of,  manner  of,  §  452a. 


1174  INDEX. 

MUTUAL  BENEFIT  AND  LIFE  ASSOCIATIONS.     (Continued.) 

Formation  of,  who  may  form,  §  452a. 

Mutual  life,  health  and  accident  insurance  corporations.     See  Mutual 

Life,   Health,   Accident   and    Annuity   Insurance   on   Assessment 

Plan. 
Number  of  members,  §  452a. 
P&wers  and  liabilities,  §  453.  ^ 

Purpose  of,  §  452. 
Who  may  form,  §  452a. 

MUTUAL  BENEFIT  SOCIETY.  See  Mutual  Benefit  and  Life  Associa- 
tions; Mutual  Life,  Health,  Accident  and  Annuity  Insurance  on 
Assessment  Plan;  Religious,  Social  and  Benevolent  Corporation. 

MUTUAL  LIFE  AND  ACCIDENT  INSURANCE  CORPORATION.     See 

Mutual  Benefit  and  Life  Associations;  Mutual  Life,  Health,  Ac- 
cident and  Annuity  Insurance  on  Assessment  Plan. 

MUTUAL  LIFE,  HEALTH,  ACCIDENT  AND  ANNUITY  INSURANCE 
ON  ASSESSMENT  PLAN.     See  Insurance  Corporation. 

Application,  contract  to  be  founded  on,  §  453j. 

Application,  false  statement  in,  punishment  for,  §  453j. 

Application,  report  of  physician,  §  453j. 

Articles   of  incorporation,   filing,  §  453e. 

Benefit  societies  exempt  from  provision  of  act,  §  453p. 

Bonds  or  securities,  deposit  with  state  treasurer,  p§  453e,  453h. 

Bonds  or  securities,  held  in  trust  for  contract-holders,  §  453e. 

Business,  compliance  with  Political  Code  prerequisite  to  soliciting, 
§  453e. 

Business  to  be  commenced  within  year,  §  453e. 

Certificate  of  insurance  commissioner  before  issuance  of  contracts, 
§  453e. 

Contract,  application  for  and  report  of  physician,  §  453j. 

Contract,  limit  upon  right  to  issue,  §  453j. 

Contract  of,  defined,  §  453d. 

Contracts,  certificate  of  insurance  commissioner  to  be  obtained  be- 
fore  issued,  §  453e. 

Contracts,  membership  and  capital  required  before  issuing,  §  453e. 

Contracts,  must  show  liabilities  are  not  limited  to  fixed  premiums, 
§  453d. 

Contracts,  what  to  specify,  §  453g. 

Corporations  to  carry  on,  laws  governing,  §  453e. 

Corporations  to  carry  on  may  be  formed,  §  453e. 

Discontinuance  of  business,  disposition  of  reserve  fund,  §  453h. 

Exempt,   money  obtained   from  corporation  is,  §  453k. 

False  statements  to,  punishment  for,  §  453j. 

Fees,  amount  of  and  disposition  of,  §  453n. 

Foreign  corporations,  conditions  precedent  to  doing  business,  §  453i. 

Foreign  corporations,  license,   renewal   of,  §  453i. 

Foreign  corporations,  license,  revocation  of  and  notice  of,  §  453i. 

Foreign  corporations,  license  to  be  issued  to,  when,  §  453i. 

Foreign  corporations,  retaliatory  clause  relating  to  fees,  etc.,  §  453i. 

Fraternal   societies   exempt   from   provisions   of  act,  §  453p. 

Insurance  commissioner,  examining  into  affairs  of  bv,  and  duties  of, 
§4531. 

Insurance  commissioner,  expenses,  presentment,  allowance  and  pay- 
ment  of,  §  453o. 

Insurance   commissioner,  proceedings  by  against,  §  4531, 

Investment   of  funds,  §  453e, 


INDEX.  1175 

MUTUAL  LIFE,  HEALTH,  ACCIDENT  AND  ANNUITY  INSURANCE 
ON  ASSESSMENT  PLAN.      ((  oiitiiiuecl.) 

luvestaiont  of  reserve  and  emergency  fund  and  deposit  of  securities, 
§§  453e,  453h. 

Lapsing  of  policies,  notice  of,  §  453m. 

Lien  on  property  of,  indebtedness  upon  contracts  is,  §  453h. 

Moneys  obtained  from,  exempt,  §  453k. 

Notice  of  injury,  accident,  etc.,  provision  in  policy  limiting  time  for 
when  void,  §  2633a. 

Notice  of  injury,  accident,  etc.,  when  may  be  given,  §  2633a. 

Name  of,  §  453e. 

Organization  to  be  completed  in  year,  §  453e. 

Payment,  time  of  and  effect  of  failure  to  pay,  §  453g. 

Penalties,  disposition  of,  §  453n. 

Pre-existing   corporations,   reincorporation   of,  §  453f. 

Pre-existing  corporations,  .rights  of,  §  453f .- 

Priority  of  indebtedness  under  contract,  §  453g. 

Reserve  and  emergency  fund,  disposition  of  where  business  discon- 
tinued, §  453h. 

Eeserve  and  emergency  fund,  extent  of,  §  453h. 

Reserve  and  emergency  fund,  investment  of  and  deposit  and  ex- 
change of  securities,  §  453h. 

Reserve  and  emergency  fund,  time  within  which  to  be  accumulated, 
§453h. 

Reserve  and  emergency  fund  to  be  created,  §  453h. 

Reserve  and  emergen c}^  fund,   what   part   of,  §  453h. 

Revocation  of  power  to  do  business,  §  4531. 

Secret  societies  exempt  from  provisions  of  statute,  §  453p. 

Statements  to  be  filed  annually,  §  4531. 

MUTUALITY. 

Of  consent,  §  1580. 

Of  intention,  contract  interpreted  to  give,  §  1636. 

MUTUAL  WILLS.     See  Wills,  II. 

N 

NAME.     See  Good-will. 

Adopted  child,  of,  §  228. 

Building  and  loan   corporation,   name  of,  §  633. 

Certificate  of  name  of  person,  firm  or  corporation,  change  of,  affi- 
davit of,  §1163. 

Certificate  of  name  of  person,  firm  or  corporation,  recording  of,  §  1163. 

Certificate  on  change  of  partnership,  §  2469. 

Change  of,  by  corporation,  decree  to  be  filed  in  county  where  articles 
filed,  §  SOOa. 

Change  of  partnership,  as  notice  of  dissolution,  §  2454. 

Change  of,  property,  how  conveyed  in  case  of,  §  1096. 

Corporate,  to  be  stated  in  articles,  §  290. 

Corjioration,  change  of  name  by.     See  Corporations,  III. 

Corporation,  name   of,  prohibitions  in  regard  to,  §  296. 

Error  in  corporate,  §  357. 

Fictitious,  certificate,  contents  of,  §  2466. 

Fictitious,  certificate,  failure  to  file,  penalty;  §  2468. 

Fictitious,  certificate,  filing  witli  county  clerk,  §§  2466,  2468. 

Fictitious,  certificate,  publication  of,  §  2466. 

Fictitious,  certificate,  signature  to  and  acknowledgment  of,  §  2468. 


1176  INDEX. 

NAME.     (Continued.) 

Fictitious,  county   clerk   to  keep  register  of,  §  2470. 

Good-will,  assignor  of,  may  transfer  right  to  use  name,  §  993. 

Good-will  does  not  include  right  to  use,  §  992. 

Incorporated  church,  name  of,  §  604. 

Misnomer  of  corporate  name,  effect  of,  §  357. 

Partnership  under  fictitious,  §§  2466-2471.     See  Partnership. 

Partnership.     See  Partnership. 

Society  for  prevention  of  cruelty  to  children  or  animals,  using  name 

similar  to  existing  corporation,  §  607d. 
Unincorporated  bank,  failure  to  show  names  of  persons  in,  penalty, 

§582. 
Unincorporated  bank,  names  of  persons  in  to  be  shown,  §  582. 

NATIONAL  BANKS. 

Examination  of,  by  superintendent  of  banks.     See  Banks  and  Bank- 
ing, IT. 

NAVIGABLE  WATERS.     See  Waters. 
State  owns  land  below,  §  670. 

NAVIGATION.     See   Shipping. 

Fisheries,   or   domestic   or  foreign   navigation,  ships   are   engaged   in, 

§  962. 

NECESSARIES. 

Husband's  liability  for,  §§  174,  175. 

Infants'  contract  for,  cannot  be  disaffirmed,  §  36. 

Liability  of  husband  for  necessaries  furnished  wife,  §  174. 

Liability  of  wife's  separate  property  fox,  §  171. 

Lunatic's  liability  for,  §  38. 

Parent  not  liable  for  support  furnished  child,^  when,  §  208. 

Parent  when   liable  for  necessaries  furnished  child,  §  207. 

Promise  of  child  to  pay  for  those  furnished  parent,  §  206. 

Third  person  may  furnish  child  with,  §  207. 

NEGLECT.     See   Divorce. 

NEGLIGENCE.     See  Master  and  Servant. 
Agent's,  principal's  liability  for,  §  2338. 
Borrower,  care  required   of,  §§  1886,  1887,   1888. 
Borrower,  liability  for,  §  1888. 
Borrower  to  repair  injuries  caused  by,  §  1SS9. 
Carrier  cannot  exonerate  from,  in  advance,  §  2175. 
Carriers  of  messages,  degree  of  care  and  diligence  required  of,  §  2162. 
Carriers  of  passengers  for  reward,  care  required  of.  §  2100. 
Carrier  of  passengers,  gratuitous,  care  required  of.  §  2096. 
Carrier  of  property  for  reward,  care  required  of,  §  2114. 
Carrier   of   property   without  reward,   care  required   of,  §  2114. 
Carriers.     See    Carriers;    Carriers    of    Goods;    Carriers   of   Messages; 

Carriers  of  Passengers;  Marine  Carriers. 
Contract  exempting  one  from  liabilitv  for  negligent  acts,  unlawful, 

§  1668. 
Contributory,   bars  right  to   relief   for,  §  1714. 
Contributory,  passenger  violating  rules,  §  484. 
Contributory,   rules   apply  between   master  and   servant,  §  1970. 
Depositary  for  hire,'  care  required  of,  §  1852. 
Depositary,   gratuitous,  liabilitv   for,  §  1846. 
Depositary's   liability    for,  §§  1S38,    1840. 
Divorce  for  neglect,  §§  92,  107. 


INDEX,  1177 

NEGLIGENCE.     (Continued.) 

Employee  for  his  own  benefit,  care  required  of,  §  1979. 

Employee   for   reward,   care   required    of,  §  1978. 

Employee's   liability   for,   to   employer,  §  1990. 

Fire,  negligently  setting,  treble  damages  for,  §  33-i6a. 

Gratuitous  employee,  liability  of,  for,  §  1975. 

Hirer,  care  required  of,  §  1928. 

Hirer  to  repair  injuries  caused  by,  §  1929. 

Insurer  not  exonerated  by,  §  2629. 

Liable,  one  is,  for  negligent  acts,  §  1714. 

Liability  for,  extent  of,  where  prescribed,  §  1714. 

Loss,  upon  whom  must  fall,  where  one  of  two  innocent  persons  must 

suffer,  §  3543. 
Master  of  ship,  liability  for  negligence  of  persons  employed  on  ship, 

§  2383. 
Master's  liability  for,  §§  1969-1971. 
Passenger  violating  rules  and  instructions,  §  484. 
Pilot's,  liability  of  ship-owner  or  master  for,  §  2384. 
Ship-master's  liability   for,  §§  2043,   2383,   2384. 
Trustee,  degree  of  care  and  diligence  required  of,  §  2259. 
Want  of  ordinary  care  or  skill,  liability  for,  §  1714. 
Willful  acts,  liability  for,  §  1714. 

NEGOTLA.BLE  INSTRUMENTS. 

I.  Definitions  and  kinds  of;  code  provisions  relating  to. 
II.  Execution  and  form  of;  conditions  and  stipulations  in. 

III.  Consideration. 

IV.  Construction  of. 
V.  Bills  of  exchange. 

VI.  Promissory  notes. 
VII.  Checks. 
VIII.  Indorsement. 
IX.  Maturity  of;   days  of  grace. 
X.  Presentment  and  demand. 
XI.  Acceptance. 
Xn.  Dishonor  and  notice. 
XIII.  Protest. 
XIV.  Pajonent. 
XV.  Destruction  of  by  fire. 

I.     Definitions  and  kinds  of;  code  provisions  relating  to. 
Bank  notes  are,  §§  3095,  3261. 

Bank  note  is  negotiable  even  after  payment,  §  3261. 
Bill   of  exchange  is  negotiable  instrument,  §  3095. 
Bill  of  lading,  §§  2127,  2128.     See  Bills  of  Lading. 
Bond  is,  §  3095. 
Bonds.     See  Bonds. 
Certificate  of  deposit  is,  §§  3095,  3261. 
Certificates  of  deposit,  transferability,  §  576. 
Check  is  negotiable  instrument,  §  3095. 
Code  provisions  apply  to   what  instruments,  §  3086. 
Foreign    bill,    defined,  §  3224. 
Inland  bill  defined,  §  3224. 
Kinds  of,  enumerated,  §  3095. 


1178  INDEX. 

NEGOTIABLE  INSTRUMENTS.     I.  Definitions  and  kinds  of;  code  pro- 
visions relating  to.     (Continued.) 
Letters  of  credit.     See  Letters  of  Credit. 
Negotiable  Instruments   defined,  §  3087. 
Note   defined,  §  3244. 
Promissory  note  is,  §  3095. 
Warehouse   receipts.     See   Warehousemen. 
What  instruments  are  negotiable,  §  3095. 

n.     Execution  and  form  of;  conditions  and  stipulations  in. 

Absolute,  must  be,  §  3088. 

Alternative,  instrument,  may  be  in,  §  3090. 

Attorneys'  fees,  may  provide  for,  §  3088. 

Blank,  liability  on,  to  indorsee,  §  3125. 

Condition,  must  be  for  unconditional  payment  of  money,  §  3088. 

Condition,  must  not  contain  unless  certain  of  fulfillment,  §  3088. 

Contract,  what  it  must  not  contain,  §  3093. 

Costs,  may  provide  for,  §  3088. 

Date,  any  may  be  inserted,  §  3094. 

Date,  nominal  death  or  incapacity  at,  does  not  affect,  §  3094. 

Date  not  essential,  §  3091. 

Death  of  maker  at  time  of  nominal  date,  §  3094. 

Incapacity  of  maker  at  time  of  nominal  date,  §  3094. 

Money,  must  be  payable  in,  §  3088* 

Must  not  contain  other  contract  than  allowed  by  code,  §  3093. 

Option  between  payment  of  money  and  performance  of  another  act, 

effect   of,  §  3090. 
Option,   negotiable  instrument  giving,  §  3090. 
Payee,  fictitious,  payable  to  bearer,  §  3103. 
Payee  must  be  ascertainable  at  time  of  execution,  §  3089. 
Payment,  time  or  place  of,  need  not  be  designated,  §  3091. 
Pledge  of  collateral  with  power  of  sale,  may  contain,  §  3092. 
Unconditional  payment  of  money,  must  be  for,  §  3088. 
Unindorsed    note    pavable    to    maker   or    fictitious   person    effect    of. 

§  3102. 

III.     Consideration. 

Effect  of  want  of,  §  3122. 
Presumption  of,  §  3104. 

IV.     Construction  of. 

Bearer,   payable  to,  how  construed,  §  3101. 

Construction  of  bill  paj^able  to  person  or  his  order,  §  3101. 

Fictitious  person,  unindorsed  note  payable  to,  effect  of,  §  3102. 

Maker,  unindorsed  note  payable  to,  effect  of,  §  3102. 

Order,  payable  to,  how  construed,  §  3101. 

Payable  to  person  or  order,  how  construed,  §  3101. 

Payee  fictitious,  payable  to  bearer,  §  3103. 

V,     BUls  of  exchange. 

Acceptance  of.     See  post,  XI. 

Acceptance,  presentment  for,  time  of,  §  3185. 

Acceptance,  unconditional  promise  to  accept,  §  3197. 

Apparent  maturity  of  bill  payable  at  sight,  §  3134. 

Days  of  grace  not  allowed,  §  3181. 

Deemed  a  note,  when,  §§  3245,  3246. 

Defined,  §  3171. 

Dishonor  of,  damages,  §  3235. 


INDEX.  1179 

NEGOTIABLE  INSTRUMENTS.     V.  Bills  of  exchange.     (Continued.) 

Drawee  in  case  of  need,  §  3172. 

Drawer's  rights  and  obligations,  §  3177. 

Foreign  bill  defined,  §  3224. 

Foreign.     See  Foreign. 

Inland  bill  defined,  §  3224.' 

Negotiable  instruments,  are,  §  3095. 

Obligations  of  drawee  same  as  those  of  a  first  indorser,  §  3177. 

Parts,  drawer  to  execute  bill  in,  if  other  party  desires,  §  3174. 

Parts,  in,  presentment,  acceptance,  or  payment  of  single  part  suffi- 
cient, §  3175. 

Parts  of  a  set,  may  be  in,  §  3173. 

Payable  where,  §  3176. 

Presentment  for  acceptance,  time   of,  §  3185. 

Presentment  when  excused,  §  317C. 

Presentment   of.     See  post,  X. 

Promissory  note,  bill  accepted  by  person  other  than  drawee  becomes, 
§  3246. 

Promissory  note,  bill  accepted  for  honor,  becomes,  §  3246. 

Promissory  note,  instrument  in  form  of  bill,  when  deemed  to  be, 
§  3245. 

Eefusal  by  drawee  to  return  bill,  payable  immediately,  §  3192. 

Eefusal  by  drawee  to  return  bill,  regarded  as  an  acceptance,  §  3195. 

Eights  of  drawee  same  as  those  of  a  first  indorser,  §  3177. 

Set,  in  a,  §§  3173-3175. 

Set,  when  must  be  in  a,  §  3174. 

Waiver  of  presentment,  §  3176. 

VI.     Promissory  notes. 

Apparent  maturity  of  note  payable  after  sight  or  demand,  §  3136. 
Apparent  maturity  of  note  payable  at  sight  or  on  demand,  §  3135. 
Bill  accepted  by  person  other  than  drawee  becomes,  §  3246. 
Bill  accepted  for  honor  becomes,  §  3246. 
Bill,  instrument  in  form  of,  when  deemed  to  be,  §  3245. 
Code  sections  applicable  to,  §  3247. 
Defined,  §  3244. 

Negotiable   instruments,   are,  §  3095. 
Presentment,   time  for,  §  3248. 

Eeceipt,  indorsement  of,  on  instrument  may  be  demanded  before 
payment,  §  3137. 

VII.     Checks. 
Bills  of  exchange,  rules  governing  apply  to,  to  what  extent,  §  3255. 
Code  sections  applicable  to,  §  3255. 
Defined,  §  3254. 

Effect  of  delay  in  presentment,  §  3255. 
Indorsee  after  maturity,  without  notice,  rights  of,  §  3255. 
Negotiable   instruments,  are,  §  3095. 

VIII.    Indorsement. 

Agreement  to  indorse,  duty  on,  §  3109. 

Bona  fide  holder,  rights  of,  §  3124. 

Bona  fide  holder,  rights  of,  where  blanks  in,  §  3125. 

Bona  fide  holder,  who  is,  §  3123. 

Consideration,  want  of,  does  not  affect  bona  fide  indorsee,  §  3122. 

Defined,  §  3108. 

Delivery  before,  liability  on,  §  3117. 

Destruction  of  negotiability  by  indorser,  §  3115. 


1180  INDEX. 

NEGOTIABLE  INSTRUMENTS.     VIII.  Indorsement.     (Continued.) 

Exoneration  of  indorser  by  delay  in  presentment,  §§  3189,  3213,  3214. 

General,  how  made  sj^ecial,  §  3114. 

General  or  special,  may  be,  §  3111. 

General,  special  indorsement   cannot  be  made  after,  §  3114. 

General,  turning  into  special,  §  3114. 

General,  what  is,  §  3112. 

Indorse,  agreement  to,  duty  on,  §  3109. 

Indorsee,  bona  fide,  not  affected  by  want  of  consideration,  §  3123. 

Indorsee     in  due  course  is  who,  §  3123. 

Indorsee  in  due   course   of  instrument   executed  with  blanks,  rights 

of,  §  3125. 
Indorsee  in  due  course,  rights  of,  §  3124. 
Indorsee  of  check  after  maturity,  title  of,  §  3255. 
Indorsee  privy  to  contract,  §  3120. 
Indorsee,  rights   of,   against   prior   parties,  §  3120. 
Indorser,  definition  of,  §  3108. 
Indorser,  exoneration    of,    by    delay    in    presentment,  §§  3189,    3213, 

3214,   3248. 
Indorser,  implied  warranty  of,  §  3116. 
Indorser,  liability  of,  in  general,  §  3116. 
Indorser,  who  is,  §  3108. 
Is  what,  §  3108. 

On  separate  paper,  when  may  be,  §  3110. 
Presumption  of  consideration,  §  3104. 
Special,  cannot  be  made  after  general,  §  3114. 
Special  indorsement,    destroying   negotiability   by,  §  3115. 
Special  or  general,  §  3111. 
Special,  to  destroy  negotiability,  §  3115. 
Special,  turning  general  indorsement  into,  §  3114. 
Special,  what  is,  §  3113. 
Unindorsed  note,  effect  of,  §  3102. 
Warranty   of  indorser,  §  8116. 
"Without  recourse,"  and  effect  thereof,  §§  3118,  3119. 

IX.     Maturity  of;  days  of  grace. 

Apparent  maturity  of  bill  payable  at  sight,  §  3134. 
Apparent  maturity  of  note  payable  after  sight  or  demand,  §  3136. 
Apparent  maturity   of   promissory  note   payable   at  sight   or   on   de- 
mand, §  3135. 
Apparent  maturity,  where  payable  at  particular  time,  §  3132. 
Days  of  grace,  §  3181. 

Maturity,  where  last  day  falls  on  holiday,  §  3132. 
Eefusal   by   drawee  to  return  bill,  payable  immediately,  §  3195. 

X.     Presentment  and  demand. 

Demand,  effect  of  want  of,  on  principal  debtor,  §  3130. 

Demand  upon  principal  debtor,  not  necessary,  §  3130. 

Presentment  and  notice  of  non-payment,  where  accepted  for  honor, 

§  3206. 
Presentment  at  particular  place,  §  3130. 
Presentment,  delay  in  excused,  when,  §§  3158,  3219. 
Presentment,  delay  in,  exoneration  of  parties,  §§  3189,  3213,  3214. 
Presentment,  drawer,  exoneration  of  by  delay  in,  §§  3189,  3213,  3214. 
Presentment,  effect  of  delay,  §§  3189,  3213,  3214.  ' 
Presentment  excused  as  to  whom,  §§  3156.  3157. 
Presentment  excused  when,  §§  3131,  3176,  3186,  3218,  3220. 


1 


INDEX.  1181 

NEGOTIABLE  INSTRUMENTS.  X.  Presentment  and  demand.  (Con- 
tinued.) 

Presentment  for  acceptance,  when  may  be  made,  §  3185. 

Presentment,  indorser,  exoneration  of,  by  delay  in,  §§  3189,  3213, 
3214,   3248. 

Presentment,  made    how,  §§  3131,    3186. 

Presentment,  necessity  of  where  acceptance  refused,  §  3212. 

Presentment  of  bill  accepted  for  honor,  §  3206. 

Presentment  of  check,  effect  of  delay  in,  §  3255. 

Presentment  of  note,  effect  of  delay  in,  §  3248. 

Presentment  of  part  of  bill  in  set,  §  3175. 

Presentment  of  single  part  of  set,  §  3175. 

Presentment,  .place  of,  §  3212. 

Presentment,  place   of  where  not   accepted,  §  3211. 

Presentment,  rules  for  making,  §  3131. 

Presentment,  time  for,  §§  3131,  3185,  3189,  3213,  3214,  3248. 

Presentment  to  drawee  in  case  of  need,  necessary  Isefore  dishonor, 
§3188. 

Presentment  to  one  of  several  joint  drawees,  and  refusal  by,  effect 
of,  §  3187. 

Presentment  to  principal   debtor  not  necessary,  §  3130. 

Presentment,  to  whom  made,  §  3131. 

Presentment,  waived,  by  waiver  of  protest,  §  3160. 

Presentment,  waived,  is  not,  by  waiver  of  notice  of  dishonor,  §  3159. 

Presentment,  waived,  when,  §  3176. 

Presentment,  waiver  of,  waives  notice  of  dishonor,  §  3159. 

Presentment  where  made,  §  3131. 

XI.    Acceptance. 

Acceptance   by   third   person    or   for   honor,   bill   becomes    promissory 

note  in  case  of, §  3246. 
Acceptance  by  third  person   or  for  honor,   exonerates  prior  parties, 

§  3246. 
Admits  what,  §  3199. 
By  refusal  to  return,  §  3195. 
By  separate  instrument,  §§  3110,  3195,  3196. 
Cancellation  of,  right  of,  §  3198. 

Consideration,  want  of,  does  not  affect  bona  fide  indorsee,  §  3122. 
Foreign  bill,  acceptance  for  honor,  §§  3203,  3233. 
Holder  entitled  to  on  face  of  bill,  §  3194. 
Honor,  acceptance  for,  §§  3203-3207. 
Honor,  acceptance  for,    bill    becomes    in    effect    a    promissory    note, 

§  3246. 
Honor,  acceptance  for,  does  not  excuse  notice,  §  3207. 
Honor,  acceptance  for,  exonerates  prior  parties,  §  3246. 
Honor,  acceptance  for,  holder  is  not  bound  to  accept.  §  3204. 
Honor,  acceptance  for,  how  made  and  enforced,  §§  3205,   3206. 
Honor,  acceptance  for,  presentment  and  notice  of  dishonor,  §  3206. 
Honor,  acceptance  may  be  for,  §  3203. 
Honor,  acceptance  of  foreign  bill  for,  §§  3203,  3233. 
Honor,  acceptor  for,  notice  of  dishonor  to  be  given  to,  §  3206. 
Honor,  acceptor  for,  reimbursement   of,  §  3205. 
Honor,  acceptor  for,  to  give  notice,  §  3205. 
Honor,  acceptor  for,  when  to  pay,  §  3206. 
Made  how,  §  3193.    . 

May  be  postponed  until   day  following  presentment,  §  3186. 
May  be  upon  any  part  of  bill,  §  3195. 
Presentment  for,    how    made,  §  3186. 
Presentment  for,   to   one  of  several   joint   drawees,  §  3187. 


1182  INDEX. 

NEGOTIABLE  INSTRUMENTS.     XI.  Acceptance.     (Contiuued.) 
Presentment  for,   time   of,  §  3185. 
Presentment  for,  when  may  be  made,  §  3185. 
Presumption  of  consideration,  §  3104. 
Presumption  of  dishonor  on  failure  to  accept,  §  3133. 
Promise  of,  sufficiency  of,  §  3197. 

Qualified,  bill  may  be  regarded  as  dishonored,  §  3194. 
Qualifying  as  to  place  of  payment,  §  3195. 
Eefusal  of  drawee  to  return  bill  may  be  treated  as,  §  3195. 
Kefusal  of,  may  be  postponed  until  day  following  presentment,  §  3186. 
Single  part  of  a  set,  acceptance  of,  §  3175. 
Suffi.ciency  of,  when  made  with  owner's  consent,  §  3195. 
Third  person,  acceptance  by,  exonerates  prior  parties,  §  3246. 
Unqualified,  holder  entitled  to,  §  3194. 
What   sufficient,  §  3195. 
Writing  to  be  in,  §  3193. 

XII.     Dishonor  and  notice. 
Acceptance,  qualified,  bill  may  be  regarded  as  dishonored,  §  3194. 
Dishonored,  bill  is,  on  refusal  to  accept,  §  3185. 
Dishonored,  instrument,  when  is,  §  3141. 

Dishonor  of  bill  payable  after  sight,  presumption  of,  §  3133. 
Dishonor  of  foreign"  bill,  damages  for  §§  3234-3238,  3303. 
Dishonor  of  foreign  bill,  interest,  §  3236. 

Foreign  bill,  notice   of   dishonor,   how  given,  §  3225.     See   post,  IX. 
Foreign  bill,  notice  of  protest  necessary,  §  3225. 
Foreign  bill,  notice  of  dishonor,  where  protest  waived,  §  3232. 
Foreign  bill,  damages  for  dishonor  of,  §§  3234-3238. 
Honor,  acceptance  for.     See  ante,  XL 

Notice  of,  additional  time  for,  by  subsequent  parties,  §  3150. 
Notice  of,  after  death  and  in  ignorance  thereof,  effect  of,  §  3146. 
Notice  of,  by  agent,  how  given,  §  3149. 
Notice  of,  by  indorser,  time  for,  §  3150. 
Notice  of,  by  subagent,  how  gieen,  §  3149. 
Notice  of,  delav  in,  excused,  when,  §  3158. 
Notice  of,  effect  of,  §  3151. 
Notice  of,  excused  as  to  whom,  §§  3156,  3157. 
Notice  of,  excused  when,  §§  3155,  3156,  3157,  3220. 
Notice  of,  form  of,  §  3143. 

Notice  of,  given  in  ignorance  of  death,  §  3146. 
Notice  of,  inures  to  benefit  of  others,  §  3151. 
Notice  of,  inures  to  whose  benefit,  §  3151. 
Notice  of  nonpayment  of  bill  accepted  for  honor,  §  3206. 
Notice  of,  not  excused  by  acceptance  for  honor.  §  3207. 
Notice  of.  of  foreign  bill,  protest  necessary,  §  3225. 
Notice  of,  served  how,  §  3144. 

Notice  of,  served  how,  after  death  of  indorser,  §  3145. 
Notice  of,  time  for  giving,  §  3147. 
Notice  of,  time  for  mailing,  §  3148. 
Notice  of.  to  party  accepting  for  honor,  §  3206. 
Notice  of.  to  whose  benefit  inures.  §  3151. 
Notice  of,  waived  by  waiver  of  protest,  §  3160. 
Notice  of,  waiver  of,  by  party  entitled  to,  §  3155. 
Notice  of,  waiver  of.  by  waiver  of  presentment,  §  3159. 
Notice  of,  who  may  give,  §  3142. 
Notice,  where  holder  an  agent,  how  given,  §  3149. 

Presentment  to   drawee  in   case   of  need,   necessarv  before  bill   dis- 
honored, §  3188. 


INDEX.  1183 

NEGOTIABLE     INSTRUMENTS.      XII.    Dishonor    and    notice,     (Con- 
tinued.) 
Presumption  of  dishonor  on  failure  to  accept,  §  3133. 
Waiver  of  notice,  does  not  waive  presentment,  §  3159. 

Xni.  Protest. 

Foreign  bill,  by  whom  made,  §  3226. 
Foreign  bill,  delay  in,  when  excused,  §  3230. 
Foreign  bill,  how  made,  §  3227. 

Foreign  bill,  notice  of  dishonor,  protest  necessary,  §  3225. 
Foreign  bill,  notice  of,  given  how,  §  3231. 
Foreign  bill,  time  for  making,  §  3229. 

Foreign  bill,  waiver  of,  does  not  waive  presentment  and  notice,  §  3160. 
Foreign  bill,  waiver  of  protest  and  effect  of,  §  3232. 
Foreign  bill,  waiver  of  protest,  effect  of,  where  indorser  requires  pro- 
test, §  3232. 
Foreign  bill,  when  excused,  §  3230. 
Foreign  bill,  when  made,  §  3228. 
Waiver  of,  waives  presentment  and  notice,  §  3160. 

XIV.  Payment. 

Ability  and  willingness  to  pay  at,f)lace  of  payment,  effect  of,  §  3130. 

Acceptor  for  honor,  when  to  pay,  §  3206. 

Agent  to  collect,  duty  of,  §  2021. 

Bearer,  payable  to,  how  construed,  §  3101. 

Bill  of  exchange  is  payable  where,  §  3176. 

Conditions  that  mav  be  demanded  on,  §  3137. 

Damages  for  dishonor  of  foreign  bill,  §§  3234-3238. 

Days  of  grace  are  not  allowed,  §  3181. 

Extinction  by  payment,  §  3164. 

Extinction  in  general,  what  constitutes,  §  3164. 

Extinguishes,  §  3164. 

For  honor,  §§  3203,  3204. 

For  honor,  holder  is  bound  to  accept,  §  3204. 

For  honor,  memorandum  on  bill  for  whose  honor  made,  §  3205. 

For  honor,  notice  of,  §  3205. 

For  honor,  of  foreign  bill,  declaration  for  whom  honor  made,  §  3233. 

For  honor,  of  foreign  bill,  reimbursement  of  payor,  what  necessary  to, 

§  3233. 
For  honor,  reimbursement  of  payor,  §  3205. 
Instrument  need  not  be  surrendered  on,  when,  §  3137. 
Instrument  payable  at  particular  time  and  place,  §  3130. 
Lost  note,  indemnity,  §  3137. 
Offer  of,  what  equivalent  to,  §  3130. 
Of  part  of  bill  in  set,  §  3175. 

Order,  instrument  payable  to,  how  construed,  §  3101. 
Paj'able  at  .particular  time  and  place,  ability  and  willingness  to  pay 

there,  effect  of,  §  3130. 
Payable  to  bearer,  how  construed,  §  3101. 
Payable  to  person  "or  to  his  order,"  how  construed,  §  3101. 
Payor  for  honor,  reimbursement  of,  §  3205. 
Payor  for  honor,  to  give  notice  of  payment,  §  3205. 
Place  of,  not  specified,  where  payable,  §  3100. 
Place  of  payment  of  bill  of  exchange,  §  3176. 
Eeeeipt  may  be  demanded  before,  §  3157. 
Surrender  of  instrument  a  condition  of,  §  3137. 
Time  of,  days  of  grace  are  not  allowed,  §  3181. 
Time  of,  not  specified,  when  payable,  §  3099. 
Time  or  place  of,  need  not  be  designated,  §  3091. 


1184  INDEX. 

NEGOTIABLE  INSTRUMENTS.     (Continued.) 

XV.  Destruction  by  Fire. 
Re-establishment  and  re-execution  of,  action  lies  for,  §  3415. 
Re-establisliment  and  re-execution  of  bond  of  indemnity  to  beViven, 
§  3415. 

NEGROES. 

License  for  marriage  between  and  whites  not  to  issue,  §  69. 
Marriages  between  negroes  and  whites  void,  §§  60,  69. 

NEUTER  GENDER. 

Included  in  masculine,  §  14. 

NEUTRAL  PAPERS. 

Implied  warranty  that  ship  will  carry,  in  marine  insurance,  §  2688. 

NEWSPAPERS. 

Assessment  and  delinquency  of  stock,  publication  of,  §  336. 
Reports  of  public  meetings  are  privileged,  §§  47,  48. 

NOMINAL  DAMAGES. 

When  allowed,  §  3360. 

NOMINATION.  * 

Trustee,  of,  §  2287. 

NON-ISTEGOTIABLE  INSTRUMENTS. 

Transfer  of  non-negotiable  instrument,  §  1459. 

NON-PROFIT   CO-OPERATIVE,   AGRICULTURAL,    VITICULTURAL, 
AND  HORTICULTURAL  ASSOCIATIONS. 

Articles  of  incorporation,  alteration,  amendment,  and  repeal  of,  §  653o. 

Articles  of  incorporation,  or  certified  copies  of,  as  evidence,  §  653o. 

Articles  of  incorporation,  subscribing,  acknowledging,  and  filing, 
§  653o. 

Articles  of  incorporation  to  be  prepared  and  filed,  §  653o. 

Articles  of  incorporation,  what  to  contain,  §  653o. 

Attorney-general  may  inquire  into  right  to  do  business  by  quo  war- 
ranto, §  653s. 

By-laws,  adoption  of,  majority  vote  of  members  necessary,  §  653p. 

By-laws,  code  provisions  applying  to,  §  653p. 

By-laws  may  provide  for  what,  §  653p. 

By-laws,  when  and  how  adopted,  §  653p. 

Capital  stock,  has  not,  §  653n. 

Consolidation  with  co-operative  corporations  authorized,  §  653q. 

Consolidation  with  other  co-operative  corporations,  manner  of,  §  653q. 

Co-operation  with  other  associations  or  corporations,  authorized, 
§  653q. 

Directors,  number  of,  §  653o.  •  < 

Dissolution  of,  §  653q. 

Existing  corporation  incorporating  under  statute  relating  to,  powers 
of,  §  653r. 

Existing  corporation,  incorporation  under  statute  relating  to,  effect 
of,  and  rights,  duties,  and  liabilities  of  members,  §  653r. 

Existing  corporations,  how  incorporated  under  statute  relating  to, 
§  653r. 

Existing  corporations  may  incorporate  under  statute  relating  to,  §  653r. 

Formation  of,  three  or  more  persons  may  form,  §  653m. 

Formation  of,  who  may  form,  §  653m. 


INDEX.  1185 

NON-PROFIT  CO-OPERATIVE  AGRICULTURAL,  VITICULTURAL, 
AND  HORTICULTURAL  ASSOCIATIONS.      (Continued.) 

Membership,  assignment,  directors  may  prescribe  terms  and  condi- 
tions of,  §  653n. 

Membership,  assignment  of,  directors  may  consent  to,  §  653n. 

Membership,  assignment  of,  directors*  may  provide  for  or  against, 
§  653n. 

Membership,  certificate  of  to  be  issued,  §  653n. 

Membership,  not  assignable,  §  653n. 

Membership,  purchaser  at  execution  or  successor  in  interest  not  en- 
titled to,  §  653n. 

Membership,  terms  and  conditions  of,  by-laws  may  provide,  §  653n. 

Members,  new,  admission  of,  §  653o. 

Members,  new,  voting  powers  and  property  rights  of,  §  653o. 

Members,  rights  and  liabilities,  by-laws  may  prescribe,  §  653n. 

Members,  who  may  become,  §  63;3n. 

Powers  of,  enumerated,  §§  653m,  653q. 

Profit,  not  carried  on  for,  §  653m. 

Property  rights  and  interests  of  members,  §  653o. 

Purposes  of,  §  653m. 

Terms  of  existence  cannot  exceed  fifty  years,  §  653o. 

Voting  power  of  members,  §  653o. 

NON-PROFIT  CO-OPERATIVE  CORPORATIONS. 

Act  does  not  apply  to  what  corporations,  §  653z. 

Articles,  amended,  how,  §  653y. 

Articles  of  incorporation,  admissibility  as  evidence,  §  653v. 

Articles  of  incorporation,  subscribing  acknowledging,  and  filing, 
§  65  3  v. 

Articles  of  incorporation,  what  to  set  forth,  §  653v. 

By-laws,  code  of,  to  be  adopted,  within  one  month,  §  653w. 

By-laws,  code  provisions  applying  to,  §  653w. 

By-laws,  majority  must  assent  to,  §  653w. 

By-laws  may  regulate  assignment  or  transfer  of  certificates  on  mem- 
bership, §  653w. 

By-laws,  what  may  provide  for,  §  653w. 

Capital  stock,  not  to  have,  §  653u. 

Certificate  of  incorporation,  issuance  of,  §  653v. 

Consolidation,  effect  of,  §  653x. 

Consolidation,  how  effected,  §  653x. 

Corporations,  code  provisions  do  not  apply  to  what,  §  653za. 

Co-operation  with  other  corporations,  right  of,  §  653x. 

Corporations,  act  code  provisions  do  not  apply  to  what,  §  653za. 

Directors,  number  of,  §  653v. 

Directors,  removal  of  and  filling  vacancies,  §  653w. 

Dissolution  of,  §  653x. 

Fees  and  payments,  §  653w. 

Formation  of,  authorized,  §  653t. 

Formation  of,  majority  of  corporators  to  be  residents,  §§  653t,  653v. 

Formation  of,  three  or  more  persons  may  form,  §  653t, 

Formation  of,  when  complete,  §  653v. 

Member,  any  ])erson  may  tjecome,  §  653u. 

Members,  expulsion  of  and  appraisement  of  property  rights,  §  653w. 

Members,  expulsion  of  and  forfeiture  of  rights,  §§  653w,  653x. 

Members,  new,  admission  of,  S§  653v,  653w. 

Members,  number  of,  §§  653u,  653w. 

ifembers,   property    rights   and   interests   of,  §  653v. 

Members,  qualifications  of,  §  653w. 
Civ.  Code — 75 


1186  INDEX. 

NON-PROFIT  CO-OPERATIVE  CORPORATIONS.      (Continued.) 

Members,  rights  and  liabilities  of,  §  653u. 

Members,  voting  power  of,  §  653v. 

Members,  withdrawal  or  expulsion,  by-laws  may  provide  for,  §  6o3w. 

Membership,  assignee,  purchaser  on  execution,  or  distributee  not  en- 
titled to  rights  of,  §  656u. 

Membership,  certificate  of,  assignment  or  transfer,  by-laws  may  reg- 
ulate, §§  653u,  6o3w. 

Membership,  certificate  of,  assignment  or  transfer  of,  directors  may 
consent  to,  §  653u. 

Membership,  certificate  of,  not  assignable,  §  653u. 

Membership,  certificate  of  to  be  issued,  §  6o3u. 
■  Membership  not  assignable,  §  653u. 

Membership,  terms  and  conditions  of,  §§  653u,  653w. 

Powers  of,  §§  653t,  653x. 

Profit,  business  not  carried  on  for,  §  6.53u. 

Property  rights  and  interests  of  members,  §  653v. 

Property  rights,  provision  for  unequal,  effect  of,  §  653zb. 

Purposes  of,  §  653t. 

Eight  to  do  business,  attorney-general  only  may  inquire  into  on  quo 
warranto,  §  653z. 

Voting  power  jof  members.  §  653v. 

Voting  power,  provision  in  b^'-laws  as  to  unequal,  effect  of,  §  6o3zb. 

Voting  power,   provision  in  by-laws  for  unequal,  provisions  of  code 
as  to  majority  vote,  etc.,  do  not  apply  in  case  of,  §  653zb. 

NON-RESIDENT. 

Adoption  proceedings,  consent  of,  §§  224,  226. 

Alien,  inheriting,  when  must  make  claim  within  five  years,  §  672. 

Assignment  for  creditors  by,  §§  3449,  3451. 

Transfer  of  stock  by,  §  326. 

NON-USER.     See  Corporations,  XVII. 

NOTARY. 

Acknowledgment,  may  take,  §§  1181,  1182,  1183. 
Acknowledgment  or  proof  in  state,  §  1181. 
Acknowledgment  or  proof  out  of  state,  §  1182. 
Acknowledgment  or  proof  out  of  United  States,  §  llS3. 
Bill  must  be  protested  by,  when,  §  3226. 
Making  a  protest,  may  give  notice,  §  3231. 

NOTE.     See  Negotiable  Instruments. 

NOTICE.     See  Negotiable  Instruments. 

Abandonment  of  ship,  to  insurer,  §§  2721,  2722. 

Abatement  of  nuisance,  of,  §  3503. 

Acceptance  of  guaranty,  notice  of,  §  2795. 

Action  for  possession,  not  necessary  before,  §  793. 

Actual,  is  what,    §  18. 

Adverse  claim  to  deposit,  to  depositor,  §  1825. 

Agent,  to,  as  notice  to  principal,  §  2332. 

Appropriation  of  water,  of,  §§  1415,  1^16. 

Assessment  of  stock,  of,  §§  335-339. 

Baggage,  sale  of  for  charges,  notice  of,  §  1861. 

Carrier  or  depositary,  necessary  to  stoppage  in  transit,  §  3079. 

Change  of  corporation's  principal  place  of  business,  §  321a. 

Change  of  name  as,  §  2454. 

Consolidation  of  religious,  social,  or  benevolent  corporations,  of,  §  605. 


INDEX.  1187 

NOTICE.      (Continued.) 

Constructive,  facts  to  put  one  on  inquiry,  §  19. 
Constructive,  from  knowledge  of  facts  putting  on  inquiry,  §  19. 
Constructive,  is  what,  §  18. 
Delay  in,  how  waived,  §  2636. 
Delinquent  assessment,  §§  337-339. 
Depositary  must  give,  to  real  owner,  §  1826. 
Directors  and  stockholders,  posting,  §  321. 
'Dishonor,  of,  §§  3]11-3159. 

Duty  of  gratuitous  depositary  ceases  upon,  §  1847. 
Ejectment  without  notice,  §  793. 
Election  of  directors  of  corporation,  §  302. 
Filing  inventory  of  wife's  property  as,  §  166. 

Five  days'  notice  of  transfer  of  stock  in  trade  to  be  recorded,  §  3440. 
Form,  §  3143. 
Found,  of  thing,  §  1865. 
Freight,  of  arrival  of  to  consignee,  §  2120. 
Freight,  of  storage  of,  to  consignee,  §  2121. 
Guaranty,  notice  of  default,  §  2808. 
Hirer  of  personal  property  may  repair  after,  §  19.57. 
Hirer  of  real  property  may  repair  after,  §  1942. 
Hiring  terminated  by  notice  of  death  or  incapacity,  §  1934. 
Homestead,  notice  of  hearing  on  petition  to  sell,  §  1248. 
Innkeeper  exempted  by  giving,  §  1860. 
Inquiry,  of  facts  to  put  on,  §  19. 

Instruments  not  avoided  against  purchaser  with,  §  1228. 
Insurance,  of  loss  under,  §  2633. 

Insurance,  of  loss  under,  defects  in  not  specified,  waived,  §  2635. 
Insurance  company,  to.     See  Insurance. 
Inventory  of  wife's  separate  property,  record  of,  is,  §  166. 
Is  actual  or  constructive,  §  18. 

Lease,  notice  of  termination.     See  Landlord  and  Tenant. 
Lease,  terms  of,  may  be  changed  by  notice,  §  827. 
Letter  of  credit,  to  writer  of,  §  2865. 
Life  insurance  policy,  of  transfer,  §  2765. 
Marriage  settlement,  record  of,  is  notice,  §  180. 
Meeting,  of  election  by  stockholders,  §  302. 
Meeting  to  remove  directors,  of,  §  310. 
Mining  claim,  of  location  of.     See  Mines  and  Mining. 
Partnership,  dissolution  of,  §§  2453,  2454,  2509. 
Partnership,    of    renunciation    of    future    profits,    relieves    partners, 

§  2417. 
Pledge,  of  sale  of,  §§  3002,  3003. 

Principal  or  agent,  notice  to  one  when  deemed  to  other,  §  2332. 
Principal's  default,  guarantor  not  entitled  to,  §  2808. 
Protest,  of,  §  3231. 

Purchaser  for  value  without,  §§  856,  869. 
Eecord  as,  §  1207. 
Eecord  as  notice.     See  Eecording. 
Record  of  assignment  of  mortgage  as,  §§  2934,  2935. 
Record  of  conveyance  as,  §  1207. 
Record  of  instrument  as,  §  1213. 
Re-enter,  of  intention  to,  §  791. 

Restoration  of  burnt  corporate  records,  notice  of,  §  365. 
Sale  of  deposit  in  danger  of  perishing,  in  case  of,  §  1837. 
Selection  of  one  of  several  alternatives,  §  1449. 
Selection  of  place  of  delivery,  §  1756. 
Stockholders,  of  meeting  to  continue  corporate  existence,  §  287. 


1188  INDEX. 

NOTICE.      (Continued.) 

Tenancy  at  will,  termination  of,  §  789. 

Tenant  at  will,  to  quit,  §§  789,  790. 

Tenant  to  give  landlord,  of  adverse  proceeding,  §  1949. 

Terminates  employment,  §  1999. 

Termination  of  hiring,  §  1934. 

Trustee,  of  adverse  interests,  §  2233. 

Unrecorded  instrument  valid  iDetween  parties  with,  §  1217. 

Waiver  of  defects  in,  §  2635. 

NOVATION. 

Defined,  §  1530.  " 

Made  by  a  contract,  §  1532. 

Modes  of,  §  1531. 

Eescission  of,  grounds  for,  §  1533. 

Subject  to  rules  governing  contracts,  §  1532. 

Substitution  of  obligation,  §  1531. 

Substitution  of  parties,  §  1531. 

NUISANCE. 

Abatement  does  not  preclude  action,  §  3484. 

Abatement  not  to  prejudice  right  to  damages,  §  3484. 

Abatement  of  a  private,  manner  of,  §  3502. 

Abatement  of  a  private,  notice,  §  3503. 

Abatement  of  a  private,  right  of,  §  3501. 

Abatement  of  a  private,  when  allowed,  §  3502. 

Abatement  of  a  public,  §  3491. 

Abatement,  public,  how  may  be  abated.  §  3495. 

Abatement,  public,  who  may  abate,  §§  3494,  3495. 

Abatement,  successive  owners  neglecting  to  abate,  liable,  §  3483. 

Action  for  private,  §  3501. 

Action  for  public,  §§  3491,  3493. 

Defined,  §  3479. 

Indictment  for  public,  §§  3491,  3492. 

Information  for  public,  §§  3491,  3492. 

Notice  of  abatement,  §  3503. 

Preventive  relief  in  case  of,  §  3369. 

Private,  action  for,  §  3501. 

Private  action  for  a  public,  §§  3491,  3493. 

Private  defined,  §  3481. 

Private,  remedies  for,  §§  3501,  3502. 

Public,  defined,  §  3480. 

Public,  private  action  for,  §  3493. 

Public,  remedies  for,  §  3491. 

Eemedies  for  a  private,  §§  3501,  3502. 

Eemedies  for  a  public,  §§  3491,  3495. 

Specific  relief  in  case  ofy  §  3369. 

Statute,   anvthing   done   or   maintained   under   express   authority   of, 

is  not,  §  3482. 
Successive  owners,  neglecting  to  abate,  liability  of,  §  3483. 
Time  does  not  legalize  a  public,  §  3490. 
What  not  deemed  a,  §  3482. 

NUMBER. 

Singular  or  plural,  of  words  in  code,  construction  of,  §  14. 

NUNCUPATIVE  WILL.     See  Wills,  X. 


INDEX.  1189 

0 

OATH. 

Defined,  §  14. 

Directors  of  banks,  of.     Appendix,  tit.  "Banking,"  §  11. 

Homestead  appraisers,  §  1250. 

Includes  affirmation   or  declaration,  §  14. 

Officer  taking  proof  of  instrument  may  administer,  §  1201. 

Person  solejunizing  marriage  may  administer,  §  72. 

Person  taking  acknowledgment  authorized  to  administer,  §  1201. 

Testify  includes,  §  14. 

Trust  companies,  by,  how  taken.     Appendix,  tit.  "Banking,"  §  90. 

OBLIGATIONS.     See  Contracts. 
Accord,  defined,  §  1521. 
Accord,  effect  of,  §  1522. 
Act  of  God  excuses  performance,  §  1511. 
Alteration  of  contracts.     See  Alteration;  Contracts,  IX. 
Alternative,  impossibility  of  performance  of  one,  effect  of,  §  1451. 
Alternative,  nullity  of  one,  effect  of,  §  1451. 
Alternative,  right  of  selection,  how  lost,  §  1449. 
Alternative,  right  of  selection,  who  has,  §  1448. 
Alternative,  selection  of  must  be  in  its  entirety,  §  1450. 
Alternatives  indivisible,  selection  in  case  of,  §  1450. 
Application  of  payment  to,  §  1479. 
Application  of  performance,  by  creditor,  §  1479. 
Application  of  performance,  by  debtor,  §  1479. 
Application  of  performance,  law  makes,  when,  §  1479. 
Application  of  performance,  rescission  of,  §  1479. 
Application  of  performance,  who  may  make,  §  1479. 
Arises  from  agreement  or  operation  of  law,  §  1428. 
Arising  from  obligation  of  law,  how  enforced,  §  1428. 
Assuming,  by  accepting  benefits,  §  1589. 
Conditional,  when,  §  1434. 
Condition  concurrent,  defined,  §  1437. 
Condition  concurrent,  performance  of,  §  1498. 
Condition,    performance    excused    on    refusal   of   other  to   perform, 

§  1440. 
Condition  precedent  defined,  §  1436. 
Condition  precedent,  performance  of,  §  1498. 
Condition  subsequent  defined,  §  1438. 
Condition,  unlawful,  void,  §  1441. 
Conditions,  impossible,  void,  §  1441. 
Conditions,  kinds  of,  §  1435. 

Conditions  of  forfeiture,  construed  strictly,  §  1442. 
Conditions  precedent  must  be  performed  before  performance  can  be 

required  of  another,  §  1439. 
Conditions  repugnant,  void,  §  1441. 
Consideration,  existing  legal  obligation  as,  §  1606. 

Consideration,  ratable  proportion  when  performance  prevented,  §  1514. 
Consideration.     See  Contracts,  IV. 
Construction  of  contracts.     See  Contracts,  VII. 
Contribution  between  joint  or  joint  and  several  obligors,  §  1432. 
Covenants,  apportionment  of,  §  1467. 
Covenants  running  with  land, §§  1460-1468. 
Created  how,  §  1428. 

Damages,  limitation  on  amount  of,  for  breach,  §  3358. 
Defined,  §  1427. 


1190  INDEX. 

OBLIGATIONS.      (Continued.) 

Duty  to  abstain  from  injury  to  others,  §  1708. 

Extinguishment   by   performance,  §§  1473-1479. 

Extinguishment  of  offer  by  performance,  §§  1485-1505. 

Forfeiture,  construed  how,  §  1442. 

Imposed  by  law,  §§  1708-1717. 

Impossible  conditions,  void,  §  1441. 

Infant  cannot  disaffirm  what,  §  37. 

Infringements  upon  right  of  others,  duty  to  abstain  from,  §  170S. 

Injury  to  another,  duty  to  abstain  from,  §  1708. 

Interest  stopped  by  offer  of  performance,  §  1504. 

Interpretation,  general  rules  of,  §  1429. 

Interpretation.     See  Contracts,  VII. 

Joint  and  several,  contribution  between  obligors,  §  1432. 

Joint,  contribution  between  obligors,  §  1432. 

Joint  debtors,  release  of,  §  1543. 

Joint,  obligation  imposed  upon  several  presumed  to  be,  §  1431. 

Joint,  presumption  in  favor  of,  §  1431. 

Joint,  presumption  that  obligation  is,  how  only  overcome,  §  1431. 

Joint.     See  Joint. 

Joint,  several,  or  joint  and  several,  may  be,  §  1430. 

Law,  creating  and  enforcing  by  oj^eration  of,  §  1428. 

Law  imposes  what,  §§  1708-1717. 

Mistake.     See  Mistake. 

Novation.     See  Novation. 

Offer  of  performance,  effect  of,  §  1485. 

Payment,  application  to  obligations,  §  1479. 

Payment  detined,  §  1478. 

Payment,  tender,  and  deposit  extinguish  demand,  §  1500. 

Pecuniary,  extinction  by  tender,  §  1500. 

Performance,  application  of  act  by  way  of,  §  1479. 

Performance  by  one  joint  debtor,  effect  of,  §  1474. 

Performance,  compensation  for  delay,  §  1492. 

Performance,  conditional  offer  of,  §  1494. 

Performance,  creditor's  retention  of  thing  he  refuses  to  accept,  effect 
of,  §  1505. 

Performance,  custody  of  thing  offered,  §  1503. 

Performance,   delay  in,   compensation,  §  1492. 

Performance,  directions  by  creditors,  effect  of,  §  1476. 

Performance  excused  by  what,  §§  1440,  1511. 

Performance  extinguishes,  §  1473. 

Performance,  notice  that  one  will  not  perform,  §  1440. 

Performance  of  conditions  essential,  when,  §  1439. 

Performance,  offer  of,  ability  and  willingness  essential,  §  1495. 

Performance,  offer  of,  conditions,  must  be  free  from,  §  1494. 

Performance,  oft'er  of,  creditor's  retention  of  thing  he  refuses  to  ac- 
cept, §  1505. 

Performance,  offet  of,  custody  and  care  of  thing  offered,  §  1503. 

Performance,  offer  of,  effect  on  accessories,  §  1504. 

Performance,  offer  of,  extinguishes,  §  1485. 

Performance,  offer  of,  manner  of,  §  1493. 

Performance,  offer  of,  may  be  made  dependent  upon  performance  of 
conditions,  §  1498. 

Performance,  offer  of,  objections  not  stated  are  waived,  §  1501. 

Performance,  offer  of,  objections  to,  §  1501. 

Performance,  offer  of  partial,  of  no  effect,  §  1486. 

Performance,  offer  of,  refusal  to  accept  before  offer  of,  effect  of, 
§  1515. 


INDEX.  1191 

OBLIGATIONS.      (Coutinued.) 

Performance,  offer  of,  retention  of  thing  which  creditor  refuses  to  ac- 
cept, effect  of,  §  1505. 

Performance,  offer  of,  stops  interest,  §  1504. 

Performance,  offer  of,  time  of,  §§  1490,  1491. 

Performance,  offer  of,  time  of,  delay,  effect  of  where  it  can  be  com- 
pensated, §  1492. 

Performance,  offer  of,  time  of,  delay  in  and  compensation  for,  §  1492. 

Performance,  offer  of,  title  to  thing  offered  passes,  when,  §  1502. 

Performance,  offer  of,  to  be  in  good  faith,  §  1493. 

Performance,  offer  of,  to  be  made  by  whom,  §  1487. 

Performance,  offer  of,  to  be  made  where,  §?  1488,  1489. 

Performance,  offer  of,  to  be  made  where  and  to  whom,  §§  1488,  1489. 

Performance,  offer  of,  waiver  of  objections  to,  §  1501. 

Performance,  offer  of,  where  no  time  fixed,  §§  1490,  1491. 

Performance,  offer  of,  willingness  essential,  §  1495. 

Performance,  offer  of.     See  Contracts,  VIII,  4;  Offer  of  Performance. 

Performance,  part,  extinguishes  obligation,  when,  §  1524. 

Performance,  partial,  effect  of,  §§  1477,  1524. 

Performance  prevented  by  creditor,  effect  of,  §§  1511,  1512. 

Performance  prevented,  other  than  by  creditor,  ratable  proportion  of 
consideration,  §  1514. 

Performance,  production  of  thing  to  be  delivered  not  necessary, 
§  1496. 

Performance,  receipt  for  property  delivered,  §  1499. 

Performance,  refusal  to  accept  before  offer  of,  effect  of,  §  1515. 

Performance,  thing  offered  to  be  kept,  how,  by  obligor,  §  1503. 

Performance,  thing  offered  to  be  kept  separate,  §  1497. 

Performance,  title  to  thing  offered,  §  1502. 

Performance  to  one  joint  creditor,  effect  of,  §  1475. 

Performance.     See  Contracts,  VIII. 

Property,  is,  §  1458. 

Eeceipt,  right  to  require,  §  1499. 

Eefusal  to  accept  offer  of  performance,  §§  1511,  1515. 

Eelease  extinguishes,  §  1541. 

Release,  general,  extent  of,  §  1542. 

Eelease  of  joint  debtor's,  effect  of,  §  1543. 

Satisfaction  defined,  §  1523. 

Satisfaction,  part  performance  in,  §  1524. 

Statute  of  frauds,  in  general,  §  1624. 

There  may  be  ownership  of  obligations,  §  655. 

Transferable,  rights  arising  out  of  are,  §  1458. 

Transfer  of  burden  of,  right  of,  §  1457. 

Transfer  of  non-negotiable  instruments,  manner  of,  §  1459. 

Transfer  of  non-negotiable  instrument,  right  of,  §  1459. 

Transfer  of  non-negotiable  instrument  taken  subject  to  defenses, 
§  1439. 

Trustee,  of.     See  Trusts. 

Unlawful  conditions,  void,  §  1441.  , 

Waiver  of  objections  to  offer  of  performance,  §  1501. 

Warranty  on  sale  of  written  instrument,  §  1774. 

Where  prescribed  in  code,  §  1715. 

OCCUPANCY. 

Title  by,  §§  1000,  1006. 

Title,  when  acquired  by,  §  1007. 

Title  by  when  only  warrants  action  to  quiet  title,  §  1006. 


1192  INDEX. 

OFFER. 

Absolute,  must  be,  §  1.585. 
Acceptance,  how  made,  §  1582. 
Of  guaranty,  not  binding,  §  2795. 
Eevoked,  how,  §  1587. 
Eevolved,  when,  §  1586. 
What  deemed,  §  1584. 

OFFER  OF  PERFORMANCE.     See  Contracts,  VIII,  4;  Obligations.     ' 
Ability  and  willingness,  essential,  §  1496. 
Ability  and  willingness,  when  equivalent  to,  §  3130. 
By  any  person  exonerates  surety,  §  2839. 
By  whom  made,  §  1487. 
Compensation  for  delay,  with,  §  1492. 

Conditions  may  be  made  dependent  upon  performance  of,  §  1498. 
Conditions  concurrent,  of,  when  necessary,  §  1439. 
Conditions,  to  be  free  from,  §  1494. 
Conditions,  precedent  or  concurrent,  offer  may  be  made  dependent  on 

performance  of,  §  1498. 
Custody  and  care  of  thing  offered,  §  1503. 
Effect  of,  on  accessories  of  obligation,  §  1504. 
Effect  of  refusal  to  accept  performance  made  before,  §  1515. 
Exonerates  surety,  by  any  person,  §  2839. 
Extinguishes  obligation,  §  1485. 

Extinguishes  obligations  for  payment  of  money,  when,  §  1500. 
How  to  be  kept  by  debtor,  §  1503. 
Interest,  stops  running  of,  §  1054. 
Lien  redeemed  by,  §  2905. 
Manner  of,  §  1493. 
Must  be  unconditional,  §  1494. 
Objections  to,  if  not  stated,  are  waived,  §  1501» 
Of  concurrent  conditions,  when  necessary,  §  1439. 
Partial,  of  no  effect,  §  1486. 
Party  must  be  able  to  perform,  §  1495. 

Produced,  thing  offered  need  not  be  unless  offered  accepted,  §  1496. 
Passes  title  to  personal  property  under  executory  agreement  of  sale, 

§1141. 
Receipt  may  be  required  upon,  §  1499. 
Refusal  to  accept  performance  before,  effect,  §  1515. 
Retention  of  thing  which  creditor  refuses  to  accept,  effect  of,  §  1505. 
Thing  offered  need  not  be  produced,  §  1496. 
Thing  offered  to  be  kept  sejjarate,  §  1497. 
Thing  offered,  vests  in  creditor,  when,  §  1502. 
Time  of,  §§  1490,  1491. 

Time  of,  delay  in  and  compensation  for,  §  1492. 
Time  of,  delav  in,  effect  of  where  it  can  be  compensated,  §  1492. 
To  be  in  good  faith,  §  1493. 
To  whom  made,  §  1488. 
Unconditional,  must  be,  §  1494. 
What  excuses,  §§  1440,  1511. 
When  made,  §§  1490,  1491. 
Where  made,  §  1489. 
Whom  made  to,  §  1488. 
Who  to  make,  §  1487. 
With  compensation  for  delay,  §  1492. 

OFFICE. 

Injunction  not  granted  to  prevent  exercise  of,  §  3423. 
Interest,  stops  running  of,  §  1504. 


INDEX.  1193 

OFFICER. 

Acknowledgments,  deputy  may  take,  §  1184. 
Acknowledgments,  what,  may  take,  §§  1180-1183. 
Apprentice,  officer  binding  out,  to  inquire  into  age,  §  270. 
Apprenticeship,  indenture  of  by,  copy  to  be  filed  with  county  clerk, 

§273. 
Apprenticeship,  power  to  bind  to,  §  269. 
Contract  between  and  private  persons,  uncertainty  presumed  caused 

by  whom,  §  Ifiol. 
Conveyance  by,  interpreted  in  favor  of  grantor,  §  1069. 
Joint  authority,  majority  may  exercise,  §  12. 
Lien  of,  for  levy  of  writ,  §  3057. 

Powers  of  officers  authorized  to  take  proof  of  instruments,  §  1201. 
Privileged,  communications  when  are,  §  47. 
.    Seal,  how  affixed,  §  1628. 

Uncertainty  in  contract  of  officer,  presumption  as  to,  §  1654. 

OLOGRAPHIC  WILL.     See  Wills,  XI. 

OMISSIONS. 

In  will,  how  corrected,  §  1340. 

OMITTED  CHILDREN. 

Inheritance  by.     See  Succession;  Wills,  VII. 

OPPRESSION. 

Avoids  contract,  §§  1567,  1569. 
Exemplary  damages  in  case  of,  §  3294. 
Interest  as  damages  in  case  of,  §  3288. 

OPTION. 

As  to  delivery,  notice  of,  must  be  given,  §  1756. 
As  to  place  of  offering  performance,  §  1489. 
Beneficiary,  of,  on  breach  of  trust,  §  2237. 
Negotiable  instrument  giving,  §  3090. 
Of  owner  on  confusion  of  goods,  §  1032. 
Payee,  of,  as  to  payment,  §  3090. 
Selection  between  alternatives,  §§  1448-1450. 
Time  for  exercise  of,  §  1756. 
Waived,  how,  §  1756. 

ORAL  OBLIGATION.     See  Statute  of  Frauds. 

ORDERS.     See  Secret  Societies. 

ORPHAN. 

Apprenticing.     See  Apprenticeship. 
Or|)han  asylum.     See  Orphan  Asylum. 

ORPHAN  ASYLUM. 

Adoption  of  child  from,  §  224. 

Adoption  of  child,  managers  may  consent  to,  §  224. 

Establishing  by  corporation,  §  595. 

Guardians  for  infants  maintained  in.     Appendix,  tit.  "Infancy." 

Managers  have  preferred  right  to  guardianship,  when,  §  246. 

Managers  may  consent  to  apprenticeship,  when,  §  265. 

Managers  may  consent  to  adoption  of  child  when,  §  224. 

OSTENSIBLE  OWNER. 

Pledge  by,  §2991. 


1194  INDEX. 

OVEE^INSURANCE. 

By  successive  policies,  §  2622. 

Effected  by  simultaneous  policies,  contribution,  §  2621. 

Return  of  premium  on,  §  2620. 

OWNERSHIP.     See  Property. 


PARENT  AND  CHILD.     See  Infancy. 

Abandoned  child,  parent  forfeits  guardianship  of,  §  246. 
Abandonment  by  parent  is  relinquishment  of  custody  and  earnings, 

§211. 
Abduction  of  parent  or  child,  forbidden,  §  49. 
Abuse,  parental,  remedy  for,  §  203. 
Adoption  of  child.  §§  221-230.     See  Adoption. 
Adult  child,  compensation  and  support  of,  §  210. 
Allowance  to  parent  out  of  child's  property  for  its  support,  §  201. 
Apprenticeship.     See  Apprenticeship. 
Assault,  protection  against,  §  50. 
Authority  of  parent  ceases,  when,  §  204. 
Children,  support  and  maintenance  of.     See  Divorce. 
Compensation  of  adult  child,  §  210. 
Custody,  decree  awarding,  modifying,  §  199. 
Custody,  exclusive,  suit  for,  power  of  court  on,  §  199. 
Custody,  exclusive,    when    husband    or    wife    may    sue    for,    without 

divorce,  §  199. 
Custody,  father  cannot  transfer  without  mother's  eo^isent,  §  197. 
Custody  in  general,  §  197. 

Custody  of  child,  effect  of  abandonment,  §  211. 
Custody  of  child  of  annulled  marriage,  §  85. 
Custody  of  illegitimate,  mother  entitled  to,  §  200. 
Custody  on  abandonment  by  father,  §  197. 
Custody,  parent  may  relinquish,  §  211. 
Custody,  preference  between  parents,  §§  197,  246. 
Custody,  services  and  earnings,  right  to  as  between  father  and  mother. 

§§"l97,  246. 
Custody,    services    and  earnings,    right  to,    on   death,    desertion    or 

neglect  of  parent, §  197. 
Custody,  rules  for  awarding,  §  246. 
Custody,  when  parents  separated,  §§  198,  214. 
Custody,  wife  may  obtain,  when,  §  214. 
Custody.     See  Divorce. 

Domicile  of  child,  parent  may  determine,  §  213. 
Duty  of  child  to  support  piarent,  §  206. 
Earnings  of  child,  effect  of  abandonment,  §  211. 
Earnings  of  child  may  be  paid  to  him,  §  212. 
Earnings  of  child,  parent  may  relinquish,  §  211. 
Earnings  of  child,  who  entitled  to.  §  197. 
Earnings  of  illegitimate  child,  mother  entitled  to,  §  200. 
Education  of  child,  duty  of  parents,  §  196. 
Education  of  child,  obligations  of  parents,  §  196. 
Education  when  parents  separated,  §  19S. 
Emancipation  of  child,  §  211. 

Enticement  of  child  from  parent  forbidden,  §49. 
Failing   to   maintain    chilil    forfeits   guardianship,  §  246. 
(ruardian,  appointment  of,  ends  parental  authority,  §  204. 
(ruardian  of  property,  parent  has  no  power  as,  without  appointment, 

§242. 


INDEX.  1195 

PARENT  AND  CHILD.     (Continued.) 

Guardianship.     See  Guardian  and  Ward. 

Illegitimacy  of  child,  how  proved,  §  195. 

Illegitimate  child,  how  legitimated,  ?  230. 

Illegitimate  child,  mother  entitled  to  custody,  services,  and  earnings, 
§  200. 

Illegitimate  child.     See  Bastards;  Ligitimacy. 

Legitimacy  of  children  born  after  dissolution  of  marriage,  when  pre- 
sumed, §  194. 

Legitimacy  of   children   born   in  wedlock,  presumed,  §  193. 

Legitimacy  of  children,  who  may  dispute,  §  195. 

Legitimatized,  child  becomes  by  marriage  of  parents,  §  215. 

Majority,  attainment  to  ends  parental  authority,  §  204. 

Marriage  of  infant  ends  parental  authority,  §  204. 

Mother,  when  entitled  to  custody  of  children,  §  197. 

Necessaries  furnished  child,  liability  of  parent,  §  207. 

Necessaries  furnished  child,  parent  not  liable  for,  when,  §  208. 

Necessaries  furnished  parent,  adult  child's  promise  to  pay  binding, 
§206. 

Necessaries,  third  person  may  furnish  child,  when  parent  neglects 
to,  §  207. 

Parental  abuse,  remedy  for,  §  203. 

Parental  authority  ceases,  when,  §  204. 

Parent,  allowance  to,  out  of  child's  property  for  child's  support,  §  201. 

Permitting  child  to  remain  in  orphan  asylum  without  notice  forfeits 
guardianship,  §  246. 

Posthumous  children,  property  rights  of,  §  698.  See  Posthumous 
Children. 

Pretermitted  child  or  issue  of  child,  rights  of,  §  1307. 

Property  of  child,  allowance  out  of,  for  support,  §  201. 

Property  of  child,  parent  has  no  control  over,  §  202. 

Eelinquishment  of  services  and  custody  of  child,  §  211. 

Relinquishment  presumed  from  abandonment,  §  211. 

Residence  of  child,  parent  may  determine,  §  213. 

Seduction  of  daughter,  forbidden,  §  49. 

Services  of  adult  child,  no  compensation  for,  §  210. 

Services  of  child,  effect  of  abandonment,  §  211. 

Services  of  child,  father  cannot  transfer  without  mother's  consent, 
§  197. 

Services  of  child,  parent  may  relinquish,  §  211. 

Services  of  child,  wh5  entitled  to,  §  197. 

Services  of  illegitimate  child,  mother  entitled  to,  §  200. 

Stepfather's  rights  and  liabilities,  §  209. 

Support  furnished  child,  parent  not  liable  for,  when,  §  208. 

Support  of  adult  child,  no  compensation  for,  §  210. 

Support  of  child,  allowance  to  parent  out  of  child's  property,  §  201. 

Support  of  child  enforced  when  freed  from  parental  domination  be- 
cause of  abuse,  §  203. 

Support  of  children,  obligation  for,  §  196. 

Support  of  child,  when  parent  dies  without  providing  for,  remedy, 
§205. 

Support  of  parent,  duty  of  child  as  to,  §  206. 

Support,  mutual  obligations  of  ])arent  and  child,  §  206. 

Support  of  wife's  children,  husband  not  liable  for,  §  209. 

Support,  reciprocal  duties  of,  between  parent  and  children,  §  206. 

Wages  may  be  paid  to  child,  when,  §  212. 

"Wages,  assignment  of  bv  child,  written  consent  of  parent  necessary, 
§  955. 


1196  INDEX., 

PARENT  AND  CHILD.      (Continued.) 

Ward,  marriage  of,  terminates  guardianship,  §  2.54. 
Will,  child  born  after  making  of  will,  rights  of,  §  1306. 
Wrongful  injury,  protection  against,  §  50. 

PAROL  OBLIGATIONS.     See  Statute  of  Frauds. 

PARTIES. 

Third  person  can  enforce  contract  for  his  benefit,  §  1559. 

PARTITION. 

Easement,  apportionment  of,  on  §  807. 

PARTNERSHIP. 

Account,  mutual  liability  of  partners  to,  §  2il2. 

Account,  partners  must,  for  profits  of  adverse  business,  §  2438. 

Acknowledge  barred  debt,  liquidating  partner  cannot,  §  2462. 

Acts  in  bad  faith,  whether  binding,  §  2431. 

Acts  that  partner  cannot  do,  §  2430. 

Acts  that  partner  has  authority  to  do,  §  2429. 

Admission  of  new  partner  can  only  be  by  consent,  §  2397. 

Advantage,  partner  not  to  obtain  over  another,  §  2411.  ' 

Adverse  business,  must  account  for  profits  of,  when,  §  2438. 

Adverse  business,  partner  may  not  engage  in,  §  2436. 

Agent,  partner  is  for  firm,  §  2429. 

Agent,  partner  liable  as,  §  2443. 

Agent  upon  whom  summons  may  be  served,  designation  to  be  filed 
with  secretary  of  state,  §  2472. 

Agent  upon  whom  summons  mav  be  served,  evidence  of  appointment, 
§  2472. 

Agent  upon  whom  summons  may  be  served,  failure  to  appoint,  service 
on  secretary  of  state,  §  2472. 

Agent  upon  whom  summons  may  be  served,  partnership  without  reg- 
ular place  of  business  to  designate,  §  2472. 

Agreement  in  writing,  partner  may  bind  copartners  by,  §  2429. 

Application  of  property  to  debts,  rights  of  partners  as  to,  §  2405. 

Arbitration,  partner  cannot  submit  to,  §  2430. 

Assignment  for  creditors,  partner  cannot  make,  §  2430. 

.Assignment,  partner  cannot  make,  §  2430. 

Authority  of  majority  of  partners,  §  2428. 

Authority  of  partner,  §  2429. 

Authority,  partner  has  not,  to  do  what  acfs,  §  2430. 

Bad  faith,  whether  acts  of  partner  in,  binding,  §  2431. 

Banking  business,  partnership  doing,  posting  list  of  partners  and  cap- 
ital stock.     Appendix,  tit.  "Banking,"  §  18. 

Bank  act  applies  to  what  copartnerships.  Appendix,  tit.  "Banking," 
§1. 

Business,  separate,  partner  may  not  engage  in  what,  §  2436. 

Busines.s,  separate,  partner  must  account  for  profits  of,  when,  §  2438. 

Business,  separate,  what  may  engage  in,  §  1437. 

Certificate  of  place  where  summons  may  be  served  on,  §  1163. 

Certificate  of  place  where  summons  may  be  served  on,  affidavit  on 
change  of  residence,  §  1163. 

Compensation,  partner  not  entitled  to  for  services,  §  2413. 

Confess  judgment,  partner  may  not,  §  2430. 

Confidential,  partners'  relations  are,  §§  2410,  2411. 

Damages,  liability  of  partner  for,  where  he  dissolves  firm,  §  2451. 

Debts  barred,  liquidating  partner  cannot  revive,  §  2462. 

Debts,  partner  may  require  application  of  firm  property  to,  §  2405. 


INDEX,  1197 

PARTNERSHIP.     (Coiitimied.) 
Defined,  §  2395. 

Dissolution,  agreeme^nt  not  to  go  into  business,  §  1675. 
Dissolution  as  to  one  i-iartner  notwithstanding  agreement,  §  2451. 
Dissolution,  by  lapse  of  time,  §  2450. 
Dissolution,  by  will  of  partner,  §§  2450,  2451. 
Dissolution,  death  dissolves,  S  2450. 
Dissolution,  judgment  of,  §  2450. 

Dissolution,  judgment  of,  partner  entitled  to,  when,  §  2452. 
Dissolution,  liability  of  partner  after,  to  third  persons  dealing  with 

firm,  §  2453. 
Dissolution  of,  liability  thereafter  to  persons  without  notice,  §  2453. 
Dissolution  of,  notice  bj'  change  of  name,  §  2454. 
Dissolution  of,  notice  of,  §§  2453,  2454. 
Dissolution,  notice  of,  liabilit}'  of  partner   to   third   persons   without, 

§  2453. 
Dissolution,  notice,  personal,  when  necessary,  §  2453. 
Dissolution,  notice,  publication  of,  in  paper,  when  sufficient,  §  2453. 
Dissolution,  on  renunciation  by  partner,  §§  2417,  2418. 
Dissolution,  partial,  at  will  of  one  partner,  §  2451. 

Dissolution,  j^artner  dissolving  firm  liable  for  damages,  when,  §  2451. 
Dissolution,  partner's  powers  after,  §§  2458-2462. 
Dissolution,  transfer  of  interest  dissolves,  §  2450. 
Dissolution,  war  dissolves,  §  2450. 
Dissolution,  what  works,  §  2450. 
Dissolution,  when  partner  entitled  to,  §  2452. 
Duration  of,  in  general,  §  2449. 
Fictitious  name,  action  cannot  be  maintained  until  certificate  filed, 

§  2468. 
Fictitious  name,  affidavits  of  publication  of  certificate  as  evidence, 

§  2471. 
Fictitious  names,  certificate,  failure  to  file,  cannot  maintain  action, 

§  2468. 
Fictitious  names,  certificate,  filing  with  county  clerk,  §§  2466,  2468. 
Fictitious  names,  certificate,  publication  of,  §  2466. 
Fictitious  name,  certificate,  time  to  file  and  publish,  §  2468. 
Fictitious  name,  certificate,  signing  and  acknowledging,  §  2468. 
Fictitious  name,  certificate,  what  to  state,  §  2466. 
Fictitious  name,  certified  copy  of  register  and  proof  of  publication  of, 

as  evidence,  §  2471. 
Fictitious  name,  county  clerk  to  keep  register  of  firms  doing  business 

under,  §  2470. 
Fictitious  name,  effect  of  not  filing  and  publishing  certificate,  §  2468. 
Fictitious  name,  filing  and  publishing  certificate,  §§  2466,  2468. 
Fictitious  name,  foreign,  need  not  file  nor  publish  certificate,  §  2467. 
Fictitious  name,  new  certificate  on  change  of  partner,  §  2469. 
Fictitious  name,  register  of,  as  evidence,  §  2471. 
Fiduciary,  partners'  relations  are,  §§  2410,  2411. 
Foreign,  under  fictitious  name,  need  not  file  nor  publish  certificate, 

§  2467. 
Formation,  consent  necessary  to,  §  2397. 
General,  defined,  §  2424. 
General  partners,  liability  of,  §  2500. 
General,  what  partnerships  are,  §  2424, 
Good  faith,  acts  in  bad  faith,  whether  binding,  §  2431. 
Good  faith,  partners  must  exercise  toward  each  other,  §2411, 
Good-will.     See  Good-will. 
Indemnification  of  partner  for  losses  and  risks,  §  2412. 


1198  INDEX. 

PARTNERSHIP.      (Continued.) 

Insurance  by  partner,  rights  of  partner,  form  of  policy,  §  2590. 

Insurance,  not  avoided  by  transfer  between. partners,  §  2557. 

Interest  of  partner  in  property,  extent  of, §§  2402,  2403. 

Judgment,  partner  may  not  confess,  §  2430. 

Letters  of  credit,  license  from  superintendent  of  banks  necessary  be- 
fore issuing.     Appendix,  tit.  "Banking,"  §  13. 

Letters  of  credit,  license  to  issue,  fee  for.  Appendix,  tit.  "Banking," 
§13. 

Letters  of  credit,  right  to  issue.     Appendix,  tit.  "Banking,"  §  13. 

Liability  of  general  partners,  §  2500. 

Liability  of  one  held  out  as  partner,  §  2444. 

Liability  of  partners  for  each  other  defined  by  title  on  agency,  §  2443. 

Liability  of  partners  to  third  persons,  §  2442. 

Liable,  one  not  partner  is  not  unless  held  out  as  such.  §  2445. 

Lieu  of  partner  on  shares  of  co-partners  for  payment  of  debts,  §  2405. 

Lien  of  partner  on  shares  of  co-partners  for  payment  of  general  bal- 
ance due,  §  2405. 

Liquidation,  acts  of  partner  how  far  binding  in  favor  of  third  per- 
sons, §  2460. 

Liquidation,  partner  has  only  power  prescribed  in  code,  §  2458. 

Liquidation,  powers  of  partners  in,  §  2461. 

Liquidation,  what  partner  may  and  may  not  do,  §  2462. 

Liquidation,  who  may  act  in,  §  2459. 

Liquidation,  who  may  not  act  in,  §  2460. 

Losses,  partner's  share  in,  §  2403. 

Losses,  when  division  of  implied,  §  2404. 

Majority  of  partners  govern.  §§  2428,  2520. 

Miuiug,"^§§  2511-2520.     See  Mining  Partnership. 

Name,  change  of,  sufficiency  of,  as  notice  of  dissolution,  §  2454. 

Negotiable  instruments,  power  of  liquidating  partner  as  to,  §  1462. 

New  obligation,  liquidating  partner  cannot  create,  §  2462. 

New  partner,  not  admitted  without  consent  of  all,  §  2397. 

Ostensible  partner,  liability  of,  §  2444. 

Partial  dissolution  at  will  of  one  partner,  §  2451. 

Partner  may  engage  in  separate  business  when,  §  2437. 

Partner  many  not  engage  in  what  business,  §  2436. 

Partner  must  account  for  profits  of  separate  business,  when,  §  2438. 

Partner,  no  one  liable  as,  unless  held  out  as  such,  §  2445. 

Partner  not  to  gain  any  advantage,  §  2411. 

Partner's  acts  in  bad  faith,  whether  binding,  §  2431. 

Partners  are  liable  for  each  other's  acts  as  agents,  §  2443. 

Partners  .are  trustees  for  each  other,  §  2410. 

Partners,  change  of,  in  firm  under  fictitious  name,  certificate,  §  2469. 

Partners,  good  faith  to  be  observed  between,  §  2411. 

Partnership  interest  in  property,  defined,  §  684. 

Partner's  liability  to  third  persons,  §  2442. 

Partner,  whether  may  dispose  of  whole  property,  §  2430. 

Profits,  agreement  to  divide,  implies  agreement  to  divide  losses, 
§  2404. 

Profits  of  partner  belong  to  firm,  §  2435. 

Profits  of  separate  business,  when  partner  must  account  for,  §  2438. 

Profits,  partner's  share  in,  §  2403. 

Property  acquired  with  firm  funds  presumed  to  be  partnership,  §  2406. 

Property  of,  consists  in  what,  §  2401. 

Property  of,  partner  may  require  application  of,  to  debts,  §  2405. 

Projjerty  of,  partner's  interest  in,  §§  2402,  2403. 

Property  of,  share  of  partner  in,  how  determined,  §  2403. 


INDEX.  1199 

PARTNEKSmP.      (Continued.) 

Property  of,  whether  partner  may  dispose  of  whole,  §  2430. 

Eeimbnrsement  of  partner  for  expenses,  §  2412. 

Eenuneiation  by  partner,  effect  of,  §  2417. 

Eenuneiation  by  partner,  effect  of  on  future  profits,  §  2418. 

Renunciation   of   future    profits   exonerate    partner  from   liability    to 

third  persons,  §  2417.  . 
Restraint  of  trade,  contracts  in,  on  dissolution  of,  §  1675. 
Revive  barred  debt,  liquidating  partner  cannot,  §  2462. 
Sale  of  all  firm  property,  power  of  partner  as  to,  §  2430. 
Separate  business,  partner  may  engage  in,  when,  §  2437. 
Separate  business,  partner  must  account  for  profits  of,  when,  §  2438. 
Separate  business,  partners  may  not  engage  in,  when,  §  2436. 
Services,  partner  not  entitled  to  compensation  for,  §  2413. 
Share  of  oartner  in  property  of,  how  determined,  §  2403. 
Ship,  joint  use  of,  does  not  create,  §  2396. 
ShiiJ-owners,  whether  partners,  §  2396. 

Special  partnership,  §§  2477-2510.     See  Special  Partnership. 
Termination  of,  how  long  partnership  continues,  generally,  §  2449. 
Trustees,  partners  are,  for  each  other,  §  2410. 
Trustees,  provisions  of  code  as  to,  apply,  §  2410. 

PART  PERFORMANCE. 

Effect  of,  on  oral  agreement  for  sale  of  realty,  §  1741. 
Of  obligations,  §§  1477,  1524. 

PARTY-WALL. 

Right  to  use  wall  as,  §  801. 

PASSENGER  CARRIERS. 

Accommodations  and  treatment  of  carriers,  §§  2100,  2103. 

Amount  of  baggage  that  must  be  carried  without  charge,  §  2180. 

Attention,  reasonable  degree  of  to  be  given  passengers,  §  2103. 

Badge,  employees  when  to  wear,  §  488. 

Baggage,  bicycle  as,  §  2181. 

Baggage,  bicycle  as,  but  one  need  be  carried,  §  2181. 

Baggage,  bicycle  need  not  be  crated,  §  2181. 

Baggage,  carried  and  delivered  immediately,  §  2183. 

Baggage,  checking,  §  2183. 

Baggage,  consists  of  what,  §  2181. 

Baggage,  defined,  §  2181. 

Baggage,  liability  for,  §  2182. 

Baggage,  lien  of  carrier  on,  §  2191. 

Baggage    limitation  of  liability  by  accepting  ticket  or  bill  of  lading 

with  conditions,  §  2176. 
Baggage,  obligation  to   carry,  §  2180. 
Baggage,  obligation  to  carry  on  stage,  §  2180. 
Baggage,  railway  checks  to  be  affixed  to,  §  479. 
Baggage,  refusal  of  check,  liability  for,  §  479. 
Baggage,  refusal  to  deliver,  damages,  §  479. 
Baggage,  samples,  wares,  etc.,  of  commercial  travelers,  §  2181. 
Baggage,  to  be  carried  on  same  train  with  passenger,  §  2183. 
Baggage  unchecked,  is  at  owner's  risk,  §  2183. 
Baggage,  what  includes,  §  2181. 

Baggage,  when  to  be  carried  and  delivered,  §  2183. 
Care  required  of  carrier  for  reward,  §  2100. 
Care  required   of   gratuitous   carrier,  §  2096. 
Damages  for  breach  of  obligation  to  receive  passengers,  §  3315. 
Delays,  carriage  to  be  without  unreasonable,  §  2104. 


1200  INDEX, 

PASSENGER  CARRIERS.      (Coutinued.) 

Deviation,  carriage  to  be  without  unreasonable,  §  2104. 

Duty  of  carriers  of  persons,  in  general,  §  21U0. 

Dutj'  of  railroad  to  accommodate  and  transport,  §  481. 

Ejection  of  passenger,  fare  after,  §  2190. 

Ejection  of  x'assenger,  iiow  and  where  made,  §  2188. 

Ejection  of  passenger,  right  of,  §§  4S7j  2188. 

Failure  to  start  on  schedule  time,  penalty,  §  2170. 

Fare,  additional,  when  passenger  without  ticket,  §  2189. 

Fare  after  ejection,  §  2190. 

Fare,  ejection  for  refusal  to  pay,  §§  487,  2188. 

Fare,  lien  for,  and  how  regulated,  §  2191. 

Fare,  penalty  for  overcharging  by  street-railroad,  §§  501,  504. 

Fare,  refusal  to  exhibit  or  surrender  ticket,  §  487. 

Fare,  refusing  to  pay,  §  487. 

Fare,  train  rates  where  passenger  has  no  ticket,  §  2189* 

Fares,  when  may  be  demanded,  §  2187. 

Freight  and  construction  trains,  care  required,  §§  483,  484. 

Gratuitous,  care  required  of,  §  2096. 

Inside  room,  duty  to  furnish,  §  483. 

Lien  for  fare  and  how  regulated,  §  2191. 

Limitation  on  liability,  assent  to,  on  accepting  ticket,  §§2174,  2176._ 

Limitations  on  liability,  §§  2174-2176.     See  Carriers. 

Mortgage  of  property  where  to  be  recorded,  §  2961. 

Not  liable  for  injury  to  passenger  violating  rules,  §  484. 

Overloading  not  permitted,  §§  2102,  2185. 

Passengers  on  baggage,  wood,  gravel  or  freight  car,  duties  towards, 
§§483,  484. 

Passengers,  damages  for  not  receiving,  §  3315. 

Passengers,  damages  for  refusal  to  carry,  §  482. 

Passengers,  duty  to,  in  general,  §§  2100-2104. 

Passengers,  ejection  of,   §§487,2188,2190. 

Passengers,  safe  and  fit  vehicles  for  to  be  provided,  §  2101. 

Passengers,  seats  for,  §§  483,  2185. 

Passengers,  ship-master  may  engage,  §  2376. 

Passengers,  treatment  of,  §  2103. 

Passengers,  vehicles  not  to  be  overcrowded,  §§  2102,  2185. 

Passenger  who  had  not  paid  for  before  entering  train,  may  be  made 
to  pay  train  rates,  §  2189. 

Penalty,  proof  of  agency  in  action  against  street  railway  for,  §  506. 

Rules  and  regulations,  §§  465,  subd.  li,  484,  2186. 

Rules,  ejection  for  refusal  to  obey,  §  2188. 

Rules,  injuries  to  passenger  while  violating,  §  484. 

Schedule  of  times  for  starting  to  be  published,  §  2170. 

Seats  for  passengers,  duty  to  provide,  §  2185. 

Ship,  passengers   on,  master's  power  over,  §  2038. 

Skill  required  of,  §  2100. 

Speed,  carriage  to  be  at  reasonable  rate  of,  §  2104. 

Speed,  rate  of,  delay's  and  deviations,  §  2104. 

Stage,  obligation  to  carry  baggage  on,  §  2180. 

Starting,  must  start  at  time  and  place  announced,  §  2172. 

Tickets,  conditions  in,  limiting  liability,  elfect  of,  §  2176. 

Tickets,  duty  to  furnish,  §  505. 

Tickets,  duty  to  issue,  §  490. 

Tickets,  penalty  for  failure  to  furnish,  §  505. 

Tickets,  refusal  of  j^assenger  to  exhibit  or  surrender,  ejection  of  pas- 
senger, §  487. 

Tickets,  refusal  to  exhibit  or  surrender,  §  487. 


INDEX. 


1201 


PASSENGER  CARRIERS.     (Continued.) 
Tickets,  refusal  to  issue,  penalty,  §  490. 
Tickets,  rights  of   holders,  S  490. 
Tickets  to  be  good  six  months,  §  490. 
Time,  failure  to  start  on,  penalty,  amount,  recovery,  and  disposition 

of,  §  2170. 
Treatment  of  passengers,  §  2103.     . 
Vehicles  not  ,to  be  overcrowded,  §§  2102,  2185. 
Vehicles,  obligation  to  provide,  §  2184. 
Vehicles,  sufficient  number  of,  to  be  provided,  §  2184. 
Vehicles  to  be  fit  and  safe,  §  2101. 

Vehicles,  want  of  fitness  not  excused  by  any  degree  of  care,  §  2101. 
Who  are,  §  2168. 

PASTURE. 

Eight  to,  §§  801,  802.- 
Lien    for,  §  3051. 

PATENT. 

May  be  recorded  without  acknowledgment,  §  1160. 

PAUPERS. 

Remedy  where  parent  dies  without  providing  for  support   of  child, 
§  205. 

PAWN.     See  Pledge. 

PAWNBROKER.     See  Pledge. 

PAYMENT.     See  Sales. 
Agent,  to,  §  2335. 
Application  of,  by  debtor,  §  1479. 
Application  of,  by  creditor,  §  1479. 
Application  of,  by  law,  §  1479. 

Application  of,  duty  to  see  to,  on  payment  to  trustee,  §  2244. 
Application  of,  order  of,  §  1479. 
Application  of,  rescission  of,  §  1479. 
Defined,  §  1478. 

Effect  of  offer  of,  on  accessory  of  obligation,  §  1504. 
Effect  of  off'er  of  and   deposit   in   bank,  §  1500. 
Honor,  for,  how  made,  §  3205. 
Honor,  for  made  when,  §  3203. 
Indemnity,  when  necessary  to  claim,  §  2778. 
Liquidated  debt,  of  less  than,  §  1524. 

Negotiable  instrument,  conditions  that  may  be  imposed  on,  §  3137. 
Negotiable  instrument,  of,  made  to  whom,  §  3164. 
Negotiable  instrument    payable    to    fictitious    person    is    payable    to 

bearer,  §  3103. 
Negotiable  instrument,  presentment  for  payment,  §  3131. 
Otter  of,  and  deposit,  extinguish  obligation,  §  1500. 
Payee's  option  as  to  manner  of,  §  3090. 
Receipt,  debtor  may  require,  §  1499. 
Surrender  of  instrument  as  condition  of,  §  3137. 
Tender  and  deposit  extinguish  obligation,  §  1500. 
Tender,  extinction  of  obligation  by,  §  1500. 
Tender  stops  interest,  §  1504. 
Time  of,  where  no  time  specified,  §  1657. 

PENAL  DAMAGES.     See  Penalty. 

Exemplary  damages.     See  Damages. 
Civ.  Code — 76 


1202  INDEX. 

PENAL  DAMAGES.      (Continued.) 

Failure  of  tenant  to  quit  after  notice,  §  3344. 
Fire,  negligently  setting,  §  3364a. 
Injuries  inflicted  in  a  duel,  §§  3347,  3348. 
Injuries  to  trees  or  underwood,  §  3346. 
Tenant  willfully  holding  over,  §  3345. 

PENAL  LAW. 

Specific  or  preventive  relief  not  granted  to  enforce,  §  3369. 

PENALTY. 

Bank  act,   penalties   under.     Appendix,   tit.   "Banking,"  II. 

Carrier  not  starting  on  time,  amount,  recovery  and  disposition  of, 
§2170. 

Carrier,  penalty  for  refusal  to  give  checks,  §  479. 

Contract  with,  may  be  specifically  enforced,  §  3389. 

Corporation,  failure  to  file  amended  copies  of  articles,  §  362. 

Corporation,  officer  of,  refusing  to  issue,  enter,  or  transfer  certificate 
of  stock,  for,  §  324. 

Damages,  penal,  §§  3344-3348.     See  Penal  Damages. 

Excessive  charges  by  street  railway,  for,  §  501. 

Failure  of  bridge,  chute,  etc.,  corporation  to  make  report,  §  530. 

Failure  of  building  and  loan  association  to  make  report,  §^45. 

Failure  of  railroad  to  ring  bell  or  sound  whistle,  §  486. 

Failure  of  mortgage  insurance  companies  to  file  report,  §  453gg. 

Foreign  building  and  loan  corporation,  failure  to  comply  with  stat- 
utes, §  646. 

Injunction  to  enforce,  §  3369. 

Liquidated  damages  or,  §§  1670,  1671. 

Mining  corporation,  failure  to  post  monthly  statements,  §  590. 

Mining  corporation,  refusal  or  neglect  of  president  to  issue  order  for 
inspection,  §  590. 

Mining  corporation,  where  superintendent  fails  to  obey  order  for 
examination,  §  589. 

Not  to  be  enforced  by  specific  or  preventive  relief,  §  3369. 

Overcharge  by  railroad,  for,  §  489. 

Overcharge  by  street  railway,  for,  §§  501,  504,  506. 

Penal  damages,  §§  3344-3348.     See  Penal  Damages. 

Preventive  relief  not  granted  to  enforce,  §  3369. 

Kailroad  rates,  penalty  for  raising,  duty  and  powers  of  attorney- 
general,  §  494. 

Railroad  rates,  penalty  for  raising  without  consent  of  authorities, 
§494. 

Raising  rates  after  sale  of  railroad  to  another  corporation,  §  494. 

Recovery  by  purchaser  of  franchise  under  execution,  §  390. 

Refusal  to  furnish  gas,  penalty  for,  §  629. 

Speciiic  enforcement  of  contract  with,  §  3389. 

Specific  relief  not  granted  to  enforce,  §  3369. 

Street-car  ticket,  for  not  furnishing,  §  505. 

Surety  not  liable  beyond,  §  2836. 

Telegraph  property,  for  injuring,  §  538. 

Telephone  property,  malicious  injury  to,  §  538. 

Toll,  collecting  unlawful  or  excessive,  §  518. 

Toll  gatherer  unreasonably  detaining  person,  §  518. 

Toll,  penalty  for  avoiding,  §  519. 

Tolls,  for  charging  unauthorized,  §§  514,  518. 

Treble  rent  against  tenant  holding  over,  §|  3344,  3345. 

Trespassing  on  property  of  wagon-road  corporation,  for,  §  520. 


INDEX.  1203 


PEOPLE.     See  Public. 


PERILS  OF  SEA. 

Marine  carrier  not  liable  for,  §  aU)7. 
What  are,  §  2199. 

PERISHABLE. 

Cargo,  power  of  master  to  sell,  §  2377. 

Deposit,  sale  of,  §  1837.  ' 

Property,  sale  for  freightage,  §  2204. 

PERJURY. 

False  statements  in  reports  of  building  and  loan  association,  §  645. 
False  sworn  statement  to  mutual  insurance  company,  §  453j. 
Land  and  building  corporation  may  commit,  in  false  report,  §  644. 

PERPETUAL  INTEREST. 

Defined,  §  691. 

PERPETUITIES.     See  Alienation. 

Limitation  of  power  of  suspension  in  estates  for  year,  §  770. 

PERSON. 

Defined,  §  14. 

Includes  corporation,  §  14. 

Third  person.     See  Third  Persons. 

PERSONAL  PROPERTY.     See   Good-will;   Property. 
Accession  to,  §§  1025-1033.     See  Accession. 
Acquisition,  modes  of,  §  1000. 
Action,  thing  in,  §§  953,  954. 
Chattel  interests  are  what,  §  765. 
Chose  in  action  defined,  §  953. 
Chose  in  action,  transfer  and  survivorship,  §  954. 
Conflict  of  law,  §  946. 
Confusion  of  goods,  §§ 1025-1033. 
Consists  of  what,  §  663. 
Conversion  of,  damages  for,  §§  3336-3338. 
Damages,  value  to  buyer,  how  estimated,  §  3354. 
Damages,  value  to  seller,  how  estimated,  §  3353. 
Damages,  where  property  has  peculiar  value,  §  3355. 
Definition,  §  663. 

Delivery  of  possession  to  person  entitled  to,  compelling,  §  3380. 
Estates  at  will  are  chattel  interests,  §  765. 
Estates  in,  what  interests  are,  §  701. 
Gift.     See  Gift. 
Good-will  defined,  §  992. 
Good-will  is  property,  §  655. 
Good-will,  transferable,  §  993. 
Hiring  of.     See  Hiring. 
Includes  what,  §  14. 
Interests  in.     See  Property. 
Inventions,,  property  in,  §§  980-985. 
Law  governing,  §  946. 
Letters,  property  in,  §§  980-985. 
Lien  for  repairs  or  services  on,  §  3051. 
Lien  on  for  services  performed  about.     See  Services. 
Minor's  contract,  respecting  personalty  not  in  his  possession,  §  33. 
Mortgage  of,  §  2955.     See  Chattel  Mortgages. 

Names  and  classifications  of  estates  in  realty,  when  only  apply  to, 
§  702. 


1204  INDEX. 

PERSONAL  PROPERTY.      (Continued.) 

•  Ownership  may  exist  in  what  property,  §  6.55. 
Possession  of,  how  recovered,  §  3379. 

Private  writings,  to  whom  belong,  §  985.  — 

Products  of  the  mind,  §§  980-985. 
Property  is  either  real  or  personal,  §  657. 
.    Recovery  of,  §§  3379,  3380. 

Shares  of  stock  in  corporation,  §  32-i. 

Tare,  allowance  of,  on  baled  hops,  §  995. 

Thing  in  action,  §§  953,  954. 

Title  deeds,  §  99i. 

Trade-mark,  §§  655,  991. 

Transfer  of.     See  Sales;  Transfers. 

Value,  how  estimated,  §§  3353-3355. 

What  is,  §  663. 

What  law  governs,  §  946. 

Writings,  property  in,  §§  980-985. 

PERSONAL  RIGHTS. 

All  citizens  to  have  equal  rights  in  public  places,  §  51. 
Denial  of  equal  rights  to  all  citizens,  punishment  for,  §  52. 
Enumeration  of,  §  43. 

Refusal  of  admission  to  place  of  amusement,  damages,  §  54. 
Refusal  of  admission  to  place  of  amusement  unlawful,  §  53. 

PERSONAL  SERVICES.     See  Services;  Specific  Performance. 

PEW. 

As  a  servitude,  §§  801,  802. 

PHRASE. 

How  construed,  §  13. 

Words  and  phrases.     See  Words  and  Phrases. 

PIER.     See  Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corporations. 

Statutes   governing  pier   corporations  govern  where   owned   by  indi- 
vidual, §  531. 

PILOT.     See  Shipping. 

PIONEER   SOCIETY.     See    Religious,    Social,   and   Benevolent    Corpora- 
tions. 
Limitation  on  amount  of  land  held  by,  §  596. 
Surplus  real  estate  to  be  sold  within  what  time,  §  596. 

PLACER  CLAIMS.     See  Mines  and  Mining.. 

PLEDGE. 

Apparent  owner,  by,  etfeet  of,  §  2991. 

Collection,  expenses  of,  may  be  deducted,  §  3008. 

Collection  of  proceeds  of  securities,  disposition  of  surplus,  §  3008. 

Collection  of  securities  when  due,  right  of,  §  3006. 

Contract  deemed  a,  when,  §  2987. 

Contracts,  what  are  deemed  to  be,  §  2987. 

Debtor's  misrepresentation  of  value,  effect  of,  §  2999. 

Defined,  §§  2986,  2987. 

Delivery  essential,  §  2988. 

Duties  and  liabilities  of  pledgee  for  reward,  §  2997. 

Factor  may  not,  §  2368. 

Foreclosure'  of  right  of  redemption  instead  of  sale,  right  of,  §  3011. 

Foreclosure  of  right  of  redemption,  manner  of,  §  3011. 


1 


INDEX.  1205 

PLEDGE.     (Continued.) 

Foreclosure  of  right  of  redemption,  pledgee  may  pureahse  at,  §  3011. 

Gratuitous  pledge-holder  can  exonerate  himself,  how,  §  2995. 

Gratuitous  pledge-holder's  liabilities,  §  2998. 

Increase  of  thing  covered  bj',  §  2980. 

Lien  dependent  on  possession,  §  2988. 

Lienor  may  pledge,  §  2990. 

Liens,  subject  to  jirovisions  of  chapter  on,  §  2877. 

Misrepresentation  of  value  of  pledge,  remedy  of  creditor,  §  2999. 

Negotiable  instrument  may   contain,  §  3092. 

Ostensible  owner,  pledge  by,  effect  of,  §  2991. 

Pledgee  assumes  obligations  of  depositary  for  reward,  §  2997. 

Pledge-holder  assumes  obligations  of  depositary  for  reward,  §  2997. 

Pledge-holder,  gratuitous,  assumes  obligations  of  gratuitous  depos- 
itary, §  2998. 

Pledge-holder,  gratuitous,  right  to  exonerate  himself  from  under- 
taking, §  2995. 

Pledge-holder  must  enforce  pledgee's  rights,  §  2996. 

Pledge-holder's  obligations,  §§  2995,  2996. 

Pledge-holder,  parties  may  agree  upon,  §  2993. 

Pledge-holder,  right  of  to  exonerate  himself  from  obligation,  §  2995. 

Pledge-holder,  who  is,  §  2993. 

Pledge  lender,  rights  of,  §  2992. 

Pledge  lender's  right  to  withdraw  property,  §  2994. 

Pledge  lender,  who  is,  §  2992. 

Possession,  delivery  of,  is  essential,  §  2988. 

Possession,  lien  is  dependent  on,  §  2988. 

Property  pledge  as  securitv  for  another,  rights  of  owner,  §§  2992, 
2994. 

Eeal  owner  cannot  defeat  pledge  by  apparent  owner,  §  2991. 

Sale,  auction,  must  be  by.  §  3005. 

Sale,  auction,  notice  of,  §  3005. 

Sale,  auction,  pledgee  or  pledge-holder  may  purchase  at,  §  3010. 

Sale  before  pledgee's  claim  is  due,  §  3009. 

Sale,  demand  not  necessary  on  refusal  to  perform,  §  3004. 

Sale,  demand  of  performance  a  prerequisite,  §  3001. 

Sale,  demand  of  performance,  waiver  of,  §  3004, 

Sale,  expenses  of,  may  be  deducted,  §  3008. 

Sale,  foreclosure  of  right  of  redemption  instead  of,  right  of,  §  3011. 

Sale,  how  made,  §  3005. 

Sale,  judicial,  foreclosure  of  right  of  redemption  by,  §  3011. 

Sale,  judicial,  pledgee  may  be  authorized  to  purchase,  §  3011. 

Sale,  notice  may  be  waived,  §  3003. 

Sale,  notice  of,  to  pledgor,  §  3002. 

Sale,  notice  of,  what  not  a  waiver  of.  §  3003. 

Sale  of  evidence  of  debt,  right  of,  §  3006. 

Sale  of  securities,  manner  of,  §  3005. 

Sale  of  securities,  right  of,  §  3006. 

Sale,  pledgor  may  demand  sale  of  securities,  when,  §  3007. 

Sale,  pledgee  may  retain  all  that  can  become  due,  §  3009. 

Sale,  pledgee,  or  pledge-holder,  may  purchase  at  auction  sale,  §  3010. 

Sale,  surplus  to  be  paid  pledgor,  §  3008. 

Sale,  waiver  of  demand  of  performance,  §  3004. 

Sale,  when  pledgee  may  make,  §  3000. 

Securities,  collection  and  sale  of,  §§  3006,  3007. 

Shares  of  stock  in  name  of  pledgee,  how  represente<l,  §  313. 

Transfer  of  personalty  as  security,*  deemed  to  be,  §  2924. 

Value  of  pledge,  misrepresentation  of,  remedy  of  creditor,  §  2999, 

What  contracts  are  deemed  to  be,  §  2987. 


1206  INDEX. 

PLURAL. 

Included  in  singular,  §  14. 
Includes  singular,  §  14. 

POLICE  JUDGE. 

Marriage,  may  perform,  §  70. 

POPULATION. 

Cities,  of,  how  ascertained  for  fixing  capital  of  bank.     Appendix,  tit. 

"Banking,"  §  290a,  subd.  e. 
Cities,   of,   how   ascertained   for   fixing   capital   stock   of   trust   com- 
panies.    See  Trust  Companies. 

POSSESSION. 

Action  for,  where  right  of  re-entry,  §  793. 

Adversely  held  property  may  be  mortgaged,  §  2921. 

Adverse,  owner  of  property  in,  may  transfer,  §  1047. 

Banker's  lien  dependent  on,  §  3054. 

Bona  fide  purchaser  of  one  in,  title  of,  §  1142. 

Bottomry  independent  of,  §  3027. 

Covenant  of,  implied  in  hiring,  §§  1927,  1955. 

Damages  for  unlawful,  §  3334. 

Delivery  to  party  entitled  to,  compelling,  §  3380. 

Devise,  possession  of,  §  1363. 

Factor's  lien  dependent  on,  §  3053. 

Gift,  §  1147. 

Lease,  when  renewed  by  continued,  §  1945. 

Legacies,  of,  how  obtained,  §  1363. 

Lien  for  services  dependent  on,  §  3051.  ' 

Lien  of  purchaser  independent  of,  §  3050. 

Lien  of  seller  dependent  on,  §  3049. 

Mortgagee,  not  entitled  to,  §  2927. 

Mortgagee,  when  may  take,  of  personal  property,  §  2966. 

Occupancy,  title  may  be  acquired  by,  §  1006. 

Occupancy,  when  only  warrants  action  to  quiet  title,  §  1006. 

Officer's  lien  dependent  on,  §  3057. 

One  fraudulently  dispossessing  himself  may  be  treated  as  in  posses- 
sion, §  3518. 

One  fraudulently  dispossessing  himself  of  thing,  regarded  as  still  in, 
§  3518. 

Personal  property,  of,  how  recovered,  §  3379. 

Personal  property  transferred  for  security  deemed  pledged,  §  2987. 

Pledge,  change  of,  necessary  in,  §  2988. 

Eeal  property,  of,  how  recovered,  §  3375. 

Eight  of,  may  be  transferred,  §  1046. 

Seaman's  lien  independent  of,  §  3056. 

Ship-master's  lien  independent  of,  §  3055. 

Summary  proceedings  for,  §  792. 

Vendor's  lien  independent  of,  §  3046. 

POSSIBLE. 

Object  of  contract  must  be,  §  1595. 
What  is  deemed,  §  1597. 

POSSIBILITY.  See  Impossibility. 
Cannot  be  transferred,  §  1045. 
Mere  possibility  is  not  an  interest,  §  700. 

POSTHUMOUS  CHILDREN. 

Birth  of,  defeats  certain  future  interests,  §  739, 


INDii.X.  1207 

POSTHUMOUS  CHILDREN.      (Continued.) 
Deemed  living  at  death  of  parent,  §  14UJ. 
Included  in  bequest  to  class,  §  1339. 
Property  rights  of,  §§  698,  739. 
Rights  of  in  future  interest,  §  698. 
Succession  by,  §§  698,   1306,   1339,   1403. 

POULTRY. 

Dogs  killing  or  injuring,  liability  of  owner,  §  3341. 

POWER.     See  Electricity. 

Limit  of  time  for  appropriation  of  water  for  development,  §  1410. 

POWER  OF  APPOINTMENT. 

Effect  of  on  future  interest,  where  not  executed,  §  781. 
Instruments  executed  under,  how  signed,  §  109.5. 

POWER  OF  ATTORNEY.     See  Powers. 

Gratuitous  employee,  to,  duties  under,  §  1977. 

How  only  revoked  where  recorded,  §  1216. 

Instrument  under,  how  executed,  §  1095. 

Married  woman  may  make,  execute,  and  revoke,  §  1094. 

Married  woman,  of,  acknowledged  how,  §  1094. 

Mortgage,  to  execute,  §  2933. 

Wages,  to  collect  revocable  at  any  time,  §  955. 

POWERS.     See  Powers  of  Attorney. 

Provisions  of  code  relating  to  power  repealed,  §§  878-940. 

Death  of  principal,  effect  of,  on  power  coupled  with  interest,  §  2356. 

Execution  of  powers  vested  in  several,  §  860. 

Execution  of  power  to  several,  where  some  dead,  §  860. 

Minor  cannot  give,  §  33. 

Of  sale  may  be  conferred  by  mortgage,  §  2932.     See  Mortgages. 

Person  of  unsound  mind  cannot  give,  §  40. 

Eevocation  of  trust,  power  of,  may  be  reserved,  §  2280. 

Revocation,  power  of,  when  deemed  executed,  §§  1229,   1230. 

Revoked,  how  only,  where  recorded,  §  1216. 

Sale,  power  of  in  mortgage,  §  2932. 

To  devise,  executed  by  devise  of  all  testator's  estate,  §  1330. 

To  devise,  how  executed  by  terms  of  will,  §  1330. 

To  executor,  to  appoint  executor,  void,  §  1372. 

To  sell   in  mortgage   a   part   of   security   and   passes   on  assignment, 

§  858. 
To  sell  in  mortgage  deemed  part  of  security,  §  858. 
To  sell  passes  to  assignee,  §  858. 

PREFERENCE. 

Assignment  for  creditors,  in,  §§  3451,  3452,  3457. 
Carriers  not  to  give,  §  2170. 

Carriers  to  give  to  state  and  United  States,  §  2171. 
Creditors,  of,  right  of,  §  3432. 
Debtor,  right  of,  to  make,  §  3451. 

Depositors   in   departmental  bank  in  assets   of  department.     Appen- 
dix,  tit.  "Banking,"  §  27. 
Depositors  over  stockholders.     Appendix,  tit.  "Banking,"  §  21. 
Employee,  duty  of,  to  give  to  employee's  business,  §  1988. 
Legacies  to  kindred,  preference  of,  §  1361. 
Messages,  §§2207,  2208. 
Special  partnership,  preference  by,  void, §  2496, 


1208  INDEX. 

PREFERRED  STOCK.     Sec  Corporations,  XIII. 

PRESCRIPTION. 

Nuisauce  is  not  legalized  by  lapse  of  time,  §  3490. 
Title  by,  §  1007. 

PRESENT. 

Includes   future,  §  14. 

PRESENT  INTERESTS. 

Defined,  §  GS9. 

PRESENTMENT. 

Of    negotiable    instrument,    manner,  §  .Slol.     See    Negotiable    Instru- 
ments, X. 

PRESIDING  ELDER. 

Religious  corporations,  §  602. 

"'RESUMPTION. 

Abandonment,  of  relinquishment  of  child  from,  §  211. 

Adequacy   of   damage   as   relief  for  breach   of  contract   to   transfer, 

§  3.387. 
Bill  of  exchange  is  presumed  to  be  dishonored  when,  §  3133. 
Boundary  upon  road  or  street,  presumption  in  case  of,  §  831. 
Certificate   of  ship-master,  presumptive  evidence  in  favor  of  sailor, 

§  20.59. 
Child,  relinquishment  of  control,  §  211. 

Children  born  after  marriage,  presumption  as  to  legitimacy,  §  194. 
Children  born  in  wedlock  presumed  legitimate,  §  193. 
Chose  in  action,  as  to  value,  §  33.56. 
Collision,  breach  of  rules,  §  972. 
Community  or  separate  property,  §  164. 

Compensation  of  employee,  presumption  as  to,  §§  1980,  2011. 
Consideration  for   negotiable  instrument,  §  3104. 
Consideration  for  written  instrument,  §  1614. 
Consignor  presumed  liable  for  freightage.  §  2137. 
Contract  presumed  to  be  joint  and  several,  when,  §§  1659,  1660. 
Contract,  in  case  of  uncertainty  in.  §§  1649,1654. 
Conversion,  damages,  §  3336. 
Creditor's   retention   of   part   performance,   not   presumed   voluntary, 

when,  §  1477. 
Damage,  adequacy  of  relief,  §  3387. 
Damages  by  conversion,  §§  3336,  3337. 
Date  of  delivery,  as  to,  §  1055. 
Deed,  time  of  delivery,  §  1055. 

Depositary  in   fault,  when  deposit  injured,  §  1838. 
Distinction    between    realty    and    personalty,    on    presumption    as    to 

adequacy  of  relief  in  damages,  §  3387. 
Divorce,  lapse  of  time,  presumptions  from,  §§  125,  126. 
Divorce,  residence,  §  129. 

Domicile,  presumption  as  to,  in  divorce,  §  129. 
Fee-simple  title  presumed  to  pass  by  grant,  §  1105. 
Fraud,  presumption   of,  on  want  of  change  of  possession,  §  3440. 
Gift  presumed  to  be  in  view  of  death,  when.  §  1150. 
Grant  presumed  to  include  whatever  essential  to  use,  §  3522. 
Grant,  time  of  delivery,  §  1055. 

Hiring  for  indefinite  term,  presumption  as  to  time  of,  §§  1943,  1944. 
Hiring  of  real  property,  presumed  renewed  when,  §§  1945,  1946. 
Hiring,  renewal  of,  §  2012. 


INDEX,  1209 

PRESUMPTION.     (Continued.) 

Hiring,  term  of,  presumption  as  to,  §§  2010,  2011. 

Husband  and  wife,  when  property  conveyed  to,  §  164. 

Husband  receiving   stepchildren   into   family,   on,  §  209. 

Insurance,  marine,  acceptance   of   abandonment   not  presumed   from 

silence,  §  2727. 
Insurance,  marine,   loss  of  profits   presumed   from   loss   of   property, 

§  2740. 
Insurance,  representations    refer    to    time    of    completing    contract, 

§  2577. 
Insured  has  knowledge  of  prior  loss,  §  2671. 
Intent  to  extinguish  contract  when  canceled,  §  1699. 
Joint  and  several,  promise  when  presumed  to  be,  §§  1659,  1660. 
Joint,  obligation   presumed  to  be,  when,  §  14.-5 1. 
Joint,  presumption  that  obligation  is,  how  only  overcome,  §  1431. 
Lease,  renewal  of,  §§  1945,  1946. 
Lease,  term  of,  §  1943. 

Legal  capacity,  presumption  of  restoration  to,  from  certificate,  §  40. 
Legitimacy,  of,  §§  193,  194,  195. 
Loan  presumed  to  be  on  interest,  §  1914. 
Loss  of  ship  from  continued  absence,  §  2705. 
Loss  or  injury  to  thing  deposited,  presumption  on,  §  1838. 
Managing  owner  of  ship,  presumed  to  have  no  compensation,  §  2072. 
Marine  insurance,  presumption  of  knowledge  of  loss,  §  2671. 
Obligation,  joint,  presumjation  as  to,  §  1431. 

Origin  of  uncertainty  in  contract,  presumption  as  to,  §§  1649,  1654. 
Partnership  property,  as  to, §  2406. 

Eeformation  of  contract,  presiimption  as  to  intent,  §  3400. 
Eesulting  trust,  when  presumed,  §  853. 
Sale  without  delivery  presumed  fraudulent,  §  3440. 
Separate  property,  as  to, §  164. 
Servant,  term  of  hiring,  §§  2010,  2011. 
Ship,  actual  loss  of,  from  absence,  §  2706. 

Ship,  managing  owner  presumed  to  have  no  compensation,  §  2072. 
Ship-master's  certificate,  presumptive  of  fact  stated,  §  2059. 
Term  for  which  real  property  hired,  §§  1943,  1944. 
.    Transfers,  without  possession,  fraudulent,  §  3440. 
Trustee,  presumption  against,  on   dealing  with  beneficiary,  §  2235. 
Uncertainty  in  contract  presumed  caused  by  whom,  §  1654. 
Undue  influence  of  trustee,  §  2235. 

Value  of  instrument  in  writing,  presumption  as  to  value  of,  §  3356. 
Where  property  conveyed  to  wife  and  a  third  person,  §  164. 
Wife,  property  conveyed  to,  §  164. 
Wife,  separate  property,  §  164. 
Will,  of  revocation    of,   from    marriage   and   birth    of   issue,  §§  1298, 

1299. 
Will,  of  revocation  of,  from  marriage   and  birth  of  issue,  evidence  * 

to  rebut,  §§  1298,  1299. 

PRETERMITTED  CHILDREN. 

Succe-ssion  by,  §§  1306,  1307. 

PREVENTION. 

Of  performance,  §§  1511-1514. 

Of  reduction  of  contract  to  writing,  §  1023. 

PREVENTIVE  RELIEF. 

By  injunction,  §S  3420-3423.     See  TiijunctioTis. 
Granted  by  injunction,  provisional  or  final,  §  3120. 
How  given,  §  3368. 


1210  INDEX. 

PREVENTIVE  RELIEF.     (Continued.) 

May  be  granted  as  provided  by  laws  of  state,  §  3366. 

Not  granted  to  enforce  forfeiture,  §  3369. 

Not  granted  to  enforce  penal  law,  §  3369. 

Not  granted  to  enforce  penalty,  §  3369. 

Nuisance,  in  case  of,  §  3369. 

Nuisance,  prevention  of,  §  3369. 

Only  granted  in  cases  specified  in  code,  §  3274. 

Only  in   special  cases,  §  3274. 

PRICE. 

In  sales,  §  1721. 

Of  personal  property,  lien,  §  3049. 

Of  real  property,  lien,  §  3046. 

Of  real  property,  priority  of  mortgage  for,  §  2898. 

On  failure  to  pay,  seller  may  resell  or  rescind,  §  1749. 

When  agent  may  receive,  §§2325,  2326. 

When  to  be  paid,  §  1784. 

PRIEST. 

May  solemnize  marriage,  §  70. 
Eeiigious  corporations,  §  602. 

PRINCIPAL. 

Attorney  in  fact  to  subscribe  name  of,  §  1095. 

Consent  necessary  to  release  factor  from  liability,  §  2030. 

Factor  must  follow  directions  of,  §  2027. 

Incident  passes  by  transfer  of,  §§  1084,  1656,  3540. 

Incident,  transfer  of  does  not  transfer  principal,  §  1084. 

In  guaranty.     See  Guaranty. 

PRINCIPAL  AND  AGENT.     See  Agency. 

PRINCIPAL  AND  SURETY.     See  Suretyship. 

PRINTING. 

Included  in  word  "writing,"  §  14. 

PRIORITY. 

Bottomry  or  respondentia  liens,  between,  §§  2897,  3029. 
Employee's  business,  preference  to  be  given  to,  §  1988. 
.  Liens  according  to  date,  §  2897. 

Lien  upon  single  fund  over  lien  upon  several,  §  2899. 
Marshaling  of  assets,  §  2899. 
Mortgage  for  price  of  land  has,  §  2898. 
Of  record,  priority  of  right,  §  1214. 
Surety's  priority  over  principal,  §  3525. 
Time,  priority  in,  makes  priority  right,  when,  §  3525. 

*  PRIVATE  NUISANCE.     See  Nuisance. 

PRIVIES. 

Grant  conclusive  as  to,  §  1107. 

PRIVILEGED    COMMUNICATION.     See    Libel;    Slander. 
Malice,  when  not  inferred  from,  §  48. 
What  communications  are  privileged,  §  47. 

PROBATE  PROCEEDINGS.     See  Estates  of  Decedents;   Executors  and 
Administrators. 

PROCESS.     See  Summons. 

Issuance,  service  and  filing  of  on  Saturday  afternoon,  §  7. 


INDEX.  1211 

PRODUCTS  OF  THE  MIND.     See  Literary  Property. 
Property  in,  §§  980-985. 

PROFITS. 

By  partner  belong  to  firm,  when,  §  2435. 

Corporations  formed  other  than  for  profit,  number  of  directors,  §  290. 

Corporations  formed  other  than  for  profit,  term  of  office  of  directors, 

§290. 
Insurable  interest  in,  §  2664. 

Loss  of,  under  insurance,  when  presumed,  §  2740. 
Measure  of  indemnity  for  loss  of,  under  insurance,  §  2738. 
Eenunciation    of   future   profits    of    partnership    exonerates    partner, 

§  2417. 
Special  partner  may  draw  share  of,  §  2494. 

PROHIBITION. 

When  may  be  granted,  §  3366. 

PROMISE  OF  MARRIAGE. 

Chastity,  want  of,  effect  of  on,  §  62. 
Damages  for  breach  of,  §  3319. 

PROMISSORY  NOTE.     See  Negotiable  Instruments,  VI. 

PROOF.     See  Evidence. 

Proof  of  instruments.     See  Acknowledgments. 

PROPAGATION. 

Lien  of  owners  of  animals  used  for,  §  3062. 

PROPERTY.     See  Personal  Property;  Eeal  Property. 
Absolute   ownership,  §  679. 
Accession  to.     See  Accession. 
Accumulations,  §§  722-733.     See  Accumulations. 
Acquisition,  modes  of,  §  1000. 

Alien  may  take,  hold,  and  dispose  of,  §  671.     See  Aliens. 
Alienation,  future  interest  which  suspends  power  of,  void,  §  716. 
Alienation  may  be  suspended  how  long,  §  715.  ' 

Alienation,  restrain  on,  void,  §  715. 
Alienation,  restraints  on.     See  Alienation. 
Alternative  future  interests,  §  696. 
Any  person  may  own,  §  671.       • 
Appurtenances  are  what,  §  662. 
Chattel  interests  are  what,  §  765. 
Classes  of,  §  657. 
Common,  interest  in,  §  682. 
Common,  interest  in  defined,  §  685. 
Common,  what  interests  are  in,  §  686. 
Community,  defined,  §§  164,  687. 
Community  interests,  §§  682,  686. 
Community,  resorting  to,  for  alimony,  §  141. 
Community.     See  Divorce;  Husband  and  Wife. 
Conditions  are  yjrecedent  and  subsequent,  §  708. 
Conditions  precedent,  when  void,  §  709. 

Condition,  time  of  enjoyment  when  on,  §  707.     See  Conditions. 
Confusion  of  goods,  §§  1025-1033. 
Contingent  interest  defined,  §  695. 

Corporation  may  acquire,  §  360.  . 

Defined,  §§  14,654. 

Divorce,  disposition  of,  on,  §§  146-148. 
Enjoyment,  fixing  time  of,  §  1707. 


1212  INDEX. 

PROPERTY.     (Continued.) 

Estates,  what  interests  are,  §  701. 

Fee,  owner  in,  surface  and  everything  above  and  below  belongs  to, 

§  829. 
Fixtures,  §  1013.     See  Fixtures. 

Found  property,  claimant  to  prove,  §  1866.     See  Finder. 
Future  estates,  qualities  of,  §  699. 
Future  interests  are  vested  or  contingent, §  693. 
Future  interests  defeated  how,  §§  739,  740. 
Future  interest  defined,  §  690. 
Future  interests  in  the  alternative,  §  696. 
Future  interest  uot  defeated  by  what,  §§  741,  742. 
Future  interests,  two   or  more   in   alternative,  §  696. 
Future  interest,  what  not  void,  §  697. 
Future  interests,  what  only  recognized,  §  703. 
Future  interests.     See  Future  Interests. 
Good-will,  defined,  §  992. 
Goodwill  is,  §§  655,  993. 
Good-will  transferable,  §  993. 

Husband  and  wife,    of.     See  Husband  and  Wife. 
Husband's  debts,  wife's,  not  liable  for,  §  171. 
Husband's  support,  wife's,  when  liable  for,  §  176. 
Husband's,  when  liable  for  alimony,  §  141. 
Husband's,  when  not  liable  for  wife's  debts,  §  170. 
Includes  real  and  personal  property,  §  14. 
Income,  accumulation   of,  §§  722-733. 
Income  defined,  §  748. 
Income  includes  what,  §  748. 
Income,  undisposed  of,  to  whom  belongs,  §  733. 
Increase  of,  ownership  of,  §  732. 
Interest,  time  of  creating,  §  749. 
Interests  as  to  time  of  enjoyment,  §  688. 
Inventions,  rights  in,  §§  980-985. 
Islands,   ownership   of,  §§  1016-1018. 
Joint  interest   defined,  §  683. 
Letters,  to  whom  belong,  §  985. 
Limited  interest  defined,  §  692. 
Limited  interest,  duration  of,  §  692. 
Literary  property-,  §§  980-985.     See  Literary  Property. 
Lost  property.     See   Lost  Property. 
May  exist  in  what  things,  §  655. 
Mere  possibility  is  not  an  interest,  §  700. 
Methods  b}^  which  acquired,  §  1000. 

Occupancy,  title  by,  §  1006.  i 

Owner,  all  property  has  an,  §  669.  J 

Ownership  by  several  persons,  classes  of,  §  682.  i 

Ownership  defined,  §  654.  , 

Ownership,  in  what  property  may  exist,  §§  655,  656.  ^ 

Ownership,  is  absolute  or  qualified.  §  678.  - 

Oownership,  is  absolute  when,  §  679. 
Ownership,  is  qualified  when,  §  680. 
Ownership  is  sole  or  several,  when,  §  681. 
Ownership  of  interests,  as  to  time,  §  688. 
Ownership,  sole,  defined,  §  681. 
Ownership,  termination  of,  §§  739-742. 
Ownei^hip,  time  of  creation,  §  749. 
Partnership   interest   defined, §  684. 
Perpetual  interest  defined,  §  691. 
Perpetual  interest,  duration  of,  §  691. 


1 


INDEX.  1213 

PROPERTY.     (Coutiuued.) 

Personalty.     See  Personal  Property. 

Posthumous  children,  rights  of,  §§  698,  739. 

Prescription,  ownership  by,  §  1U07. 

Present  interest  defined,  §  689. 

Private  writings,  to  whom  belong,  §  985. 

Products  of  the  mind,  §§  980-985. 

Property,  modes  in  which  acquired,  §  1000. 

Qualified  or  absolute,  ownership  is,  §  678. 

Qualified  ownership,  §  680. 

Real  or  personal,  property  is,  §  657. 

Realty.     See  Real  Property. 

Restoration  of  thing  wrongfully  acquired,  §§  1712,  1713. 

Restraint  upon  alienation  void,  §  711.     See  Alienation. 

Right  arising  out  of  obligation  is,  §  1458. 

Separate,  of  spouses,  §§  162,  163. 

Several  ownership,  §§  681,  682. 

Several  ownership,  classes  of,  §  682. 

Several  ownership  defined,  §  681. 

State  is  owner  of  property  which  has  no  other  owner,  §  670. 

State  may  hold,  as  private  proprietor,  §  669. 

State  owns  what,  §  670. 

Surface,  everything  above  and  below  belongs  to  owner  of,  §  829. 

Termination  of  ownership,  §§  739-742. 

Termination  of  tenancy  at  will,  notice,  §§  789,  790. 

Time  of  creating  ownership,  §  749. 

Time  of  enjoyment,  fixing,  §  707. 

Time  of  enjoyment,  interests  as  to   classified,  §  688. 

Title  deeds,  to  whom  belong,  §  994. 

Trade-mark,  in,  §§  655,  991. 

Transfer  of.     See  Conveyance;  Deed;  Grant;   Transfer. 

Vested  future  interest  defined,  §  694. 

What  may  exist  in,  §  655. 

Who  may  own,  §  671. 

Wife  may  dispose  of,  §  162. 

Writings,  property  in,  §§  980-985. 

PROPOSAL. 

Acceptance  must  be  unqualified,  §  1585. 
Qualified  acceptance,  §  1585. 
Revocation,  §§  1586,  1587. 
To  contract,  acceptance,  §§  1582,  1585. 
What  is  deemed  acceptance,  §  1584. 

PROTECTION. 

Against  restraint  and  injury,  §  43. 

To  personal  relations,  §  49. 

What  force  may  be  used  for  purpose  of,  §  50. 

PROTECTIVE  ASSOCIATIONS. 

Act   validating   acknowledgments  by.     Appendix,   tit.   "Acknowledg- 
ments." 

PROTEST. 

Of    bills    of    exchange,  §§  3225-3232.     See    Negotiable    Instruments, 
XIIT. 

PROVISIONS. 

Implied  warranty  on  sale  of,  §  1775. 

PROXY.     See  Corporations,  IX. 

Voting  by,  at  corporate   meetings,  §  312. 


1214  JNDEX. 

PUBLIC. 

Contracts  interi)reted  against  private  party,  §§  1069,  1654. 

Deceit  upon  with  intent  to  defraud,  etfeet  of,  §  1711. 

Grant  by,  interpreted  in  favor  of  grantor,  §  1069. 

Grant  interpreted  against  grantee, §  1069. 

Nuisance.     See  Nuisance. 

Title  to  or  use  of  water  is  in  people  of  state,  §  1410. 

PUBLIC  ADMINISTRATOR. 

Deposit   of   money  by,  withdrawal  of  and  discharge   of.     Appendix, 

tit.  "Banking,"  §§  92,  93. 
Fee  for  representing  insane  spouse  on  petition  to  sell  or  mortgage 

homestead,  §  1269b. 
To  represent  insane  spouse  on  petition  to  sell  or  mortgage  homestead, 

when,  §  1269b. 

PUBLICATION. 

Assessment,  notice  of,  §  336. 

Delinquent  assessment,  §  339. 

Letters,  right  to  publish,  §  985. 

Libel  by  unprivileged,  §  45. 

Partnership,  certificate  of  special,  §  2483. 

Partnership,  change  of  name  of,  §  2469. 

Partnership,  fictitious  name,  publishing  certificate,  §  2466. 

Partnership,  notice  of  dissolution,  §  2453. 

Partners,  of  names  of,  §  2466. 

Privileged,  defined,  §  47. 

Products  of  mind,  effect  of,  §  983. 

Special  partnership,  affidavit  of,  §  2484. 

Special  partnership,  notice  of  dissolution  of,  §  2509. 

PUBLIC  ENEMIES. 

Acts  of,  excuse  performance,  §  1511. 

Carrier  liable  for  acts  of,  if  negligent,  §  2195. 

Carrier  not  liable  for  acts  of,  §  2194. 

PUBLIC  LANDS. 

Letters  patent  may  be  recorded  without  acknowledgment,  §  1160. 
Lost  leiters  patent,  recording  certified  copy  and  effect  of,  §  1160. 

PUBLIC  MEETINGS. 

Eeports  of,  are  privileged  communications,  §§  47,  48. 

PUBLIC  PLACES. 

All   citizens  have  equal  rights  in,  §  51. 
Denial  of  equal  rights,  punishment  of,  §  52. 
Inciting  denial  of  equal  rights,  punishment,  §  52. 
Persons  may  be  excluded,  when,  §  53. 
Refusal  of  admission,  unlawful,  §  52. 

PUBLIC  POLICY. 

Contracts  against,  §§  1667,  1668. 

Contracts  in  restraint  of  trade,  §§  1673-1675. 

PURCHASE  MONEY. 

Lien  for,  §  3046. 

Priority  of  mortgage  for,  §  2898. 


INDEX.  1215 


Q 

QUALITY. 

Damages  for  breach   of  warranty   of,  §  3313. 

Damages  for  breach    of    warranty    of    quality    for    special    purpose, 

§  3314. 
Domestic  provisions,  §  1775. 
Goods  inaccessible  to  buyer,  §  1771. 
Sale  of  article  to  which  statement  as  to  quality  or  quantity  affixed, 

warranty  in  case  of,  §  1773. 
Warranty  by  manufacturer,  §§  1768,  1770. 
Warranty  of  goods   sold  by  sample,  §  1766. 
Warranty  on  executory  sale,  §  1767. 

QUANTITY. 

Implied  warranty  as  to,  §  1773. 

QUESTIONS  OF  LAW  AND  FACT. 

Fraud,  a  question  of  fact,  §  3442. 

QUIET   ENJOYMENT. 

Covenant  runs  with  land,  §  1463. 

Damages  for  breach  of  covenant  of,  §  3304. 

Executory  contract  of  sale  includes,  §  1733. 

Form  of  covenant  of,  §  1734. 

Implied  in  hiring  of  personalty,  §§  1927,  1955. 

Letter  of  thing  agrees  hirer  shall  have  quiet  possession,  §  1927. 

QUIETING  TITLE. 

Title  by  occupancy  when  only  warrants  action  to  quiet  title,  §  1006. 

QUORUM.     See  Corporations,  X. 

Board  of  directors,  quorum  of,  8  308. 

QUO  WARRANTO. 

Attorney-general  may  inquire  into  right  of  non-profit,  co-operative 
agricultural,  viticultural  and  horticultural  association  to  do  busi- 
ness, §  653s. 

Attorney-general  may  inquire  into  right  of  non-profit,  co-operative 
association  to  do  business,  §  653z. 

Inquiring  into  right  of  co-operative  business  association  to  do  busi- 
ness, §  653k. 

To  examine  into  affairs  of  corporations,  §  358. 


RAILROAD  COMMISSIONERS.     See  Kailroad   Corporations. 

Act  defining  powers  and  duties  of  commissioners  of  transportation. 

Appendix,  tit.  "Railroads." 
Act  providing  for  organization  of  and  defining  powers  and  duties  of. 

Appendix,  tit.  "Railroads." 
Crossings,  farm  and  private,  may  determine  necessity  and  place  and 

manner  of  construction  and  maintenance,  §  485a. 
Crossings.     See  Crossings;  Railroads. 
Operation  of  railroads,  power  in  relation  to,  §  468. 
Rates,  copy  of  upon  whom  may  be  served,  §  489. 
Rates    fixed    by,    publication    of,  §  489. 
Rates,  fixing  of,  serving  copy  of,  §  489. 
Rates,  when  take  effect,  §  489. 


1216  INDEX. 

RAILROAD  CORPORATIONS.  See  Carriers;  Street-railway  Corpora- 
tions. 

Accommodations  for  passengers,  duty  to  provide,  §  481. 

Act  providing  for  time  for  completion  of  roads.  Appendix,  tit. 
"Eailroads." 

Act  relating  to  non-profit,  co-operative  corporations  does  not  apply 
to,  §  653za. 

Affidavit  to  subscription  of  stock  and  payment  of  ten  per  cent,  §  295. 

Amount  of  capital  stock  to  be  subscribed,  §  293. 

Amounts  to  be  subscribed  and  paid  before  filing  articles,  §§  293,  294. 

Animals,  injuries  to,  liability  for,  §  485. 

Animals,  injuries  to  or  bv,  where  owner  paid  to  maintain  fence, 
§485. 

Annual  report   of,  to  state  what,  §  480. 

Annual  report  to  be  verified,  §  480. 

Articles,  amount  to  be  subscribed  and  paid  before  filing,  §§  293,  294. 

Articles  to  state  what  facts,  §  291. 

Assessment  of  stock,  §  455. 

Assessments  on  stock,  limitation  of,  §  322. 

Badge,  officers  to  wear,  §  488. 

Baggage,  checks  to  be  affixed  to,  §  479. 

Baggage  or  freight  train,  passenger  on,  §  483. 

Baggage.     See  Baggage;  Passenger  Carriers. 

Bell,  penalty  for  failure  to  ring,  §  486. 

Bell,  sounding,   duty  and   liability   as   to,  §  486. 

Bonds,  deed  of  trust  to  secure,  §  456. 

Bonds,  may  issue,  §  456. 

Bonds  of,  interest,  §  456. 

Bonds,  of,  limitation   of  amount,  §  456. 

Bonds,  power  of  holder  to  convert  into  stock,  §  457. 

Bonds,  sinking  fund  to  pay,  §  457. 

Bonds,  stocks  and  securities  of  other  corporations,  power  to  pur- 
chase, §  465. 

Borrow  money,  power  to,  §  456. 

Buildings,  may  erect  necessary,  §  465. 

Capital  stock,  certificate  of,  filing,  §  458. 

Capital  stock,  certificate  of  payment  of,  filed,  §  459. 

Capital  stock  to  be  fixed,  §  458. 

Cattle,  injuries  to,  liability  for,  §  485. 

Cattle,  injuries  to  or  by  where  owner  paid  to  maintain  fence,  §  485. 

Change  of  line  of  road,  power  and  duty  as  to,  §  467. 

Checks,  penalty  for  failure  to  give,  §  479. 

Checks  to  be  affixed  to  baggage,  §  479. 

Code  provisions  apply  to  all  companies,  §  493. 

Commissioners,  determining  whether  income  sufficient  to  operate, 
§468. 

Commissioners  of  transportation,  act  relating  to.  Appendix,  tit. 
"Railroads." 

Commissioners,  railroad,  act  organizing  and  defining  powers  of  broad. 
Appendix,   tit.   "Railroads." 

Completion  of  road,  act  authorizing.     Appendix,  tit.  "Railroads." 

Compressed  air,  right  of  steam  railroads  to  use,  §  46oa. 

Connections,  power  to  make  and  duties  as  to,  §  465. 

Consent  of  municipalities  to  use  of  streets  and  waters,  §  470. 

Consolidation,  action  and  suits  in  case  of,  §  473. 

Consolidation,  articles  of,  and  of  incorporation,  §  473. 

Consolidation,  effect  of,  on  corporations  consolidating,  §  473. 

Consolidation,  effect  of  on  prior  contracts,  §  473. 

Consolidation,  manner  of,  §  473. 


INDEX.  1217 

RAILROAD  CORPORATIONS.      (Continued.) 
Consolidation  of,  authorized,  §  473. 

Consolidation  of,  publication  of  notice,  and  filing  copy,  §  473. 
Consolidation,  railroads  may  consolidate,  §  473. 
Construction,  amount  of  road  to  be  constructed  each  year,  §  468. 
Construction  of  road,  forfeiture   of   franchise,  §  468. 
Construction  of  road,  powers  and  duties,  §  465. 
Construction  of  road,  time  to  begin,  §  468. 
Contracts  for  right  to  use  other  roads,  may  execute,  §  473a. 
Co-operative  business  associations,  provisions  relating  to  do  not  apply 

to,  §  6531. 
Crossings  and  intersections,  §§  465,  469,  472. 
Crossings,  condemning  land  for,  §  472. 
Crossings,  duty  as  to,  §  513. 

Crossings,  farm  or  private,  adjoining  owners  have  right  to,  §  485a. 
Crossings,  farm  or  private,  railroad  commission  may  determine  neces- 
sity  and    place    and    manner    of    construction    and    maintenance, 

§  485a. 
Crossings,  farm    or    private,    railroad    to    construct    and    maintain    in 

safe  condition,  §  485a. 
Crossing,  main  track  crossing  outside  city  limits,  when  only  at  grade, 

§  1240. 
Crossing  tracks   of   another  railroad,   compensation,  how   determined 

or  disagreement,  §§  465,  subd.  6,  469. 
Crossing  tracks   of  another  railroad  condemning  rights  of  way  for, 

§§469,  472. 
Crossing  tracks    of   other    railroads,   rights    and    duties    as   to,  §  465, 

subd.  6.  , 

Crossings,  mode  of  making,  §§  465,  469,  472. 
Crossings,  other  land  for,  how  acquired,  §  472. 

Crossings,  sounding  bell  or  steam  whistle  on  approaching,  §  486. 
Cross  roads,  power  to,  §  465. 
Damages  for  refusal  to  receive  or  transport  passengers  or  property, 

§482. 
Debt,  power  of  holder  to  convert  into  stock,  §  457. 
Deed  of  trust  by,  §  456. 
Deed  of  trust  by,  trustee  in,  §  456 
Directors,    election    of,  §  454. 

Electricity,  right  of  steam  railroads  to  use,  §  46oa. 
Electricity,  statute  authorizing  steam  roads  to  use,  §  465a. 
Elevated  railroad,  franchise  for,  power  to  grant,  §  493. 
Enumeration  of  powers,  §  465. 
Fellow-servants  on,  who  are  not,  §  1970. 
Fences,  duty  and  liability  respecting,  §  485. 
Force  of  trains,  may  regulate,  §  465. 
Foreign,  rights,  powers  and  liabilities,  §  407. 
Forfeiture  of   franchise   for   want   of   construction,  §  468. 
Forfeiture  of  franchise  for  want  of  operation,  §  468. 
Forfeiture  of   franchise   for   want   o'f   operation,   reversion   of   lands. 

§468. 
Franchise,  forfeiture  for  want  of  operation,  §  468. 
Franchise,  forfeiture  of  for  want  of  construction,  §  468. 
Franchise,  forfeiture  of,  grounds  of,  §  468. 
Franchise,  reversion    of   land    on    forfeiture    for    want    of    operation, 

§468. 
Franchise,  sale  of,  freights  and  fares  in  case  of,  §  494. 
Franchise,  sale  of,   penalties   for   violation   of   statute,   and   dutjy   of 

attorney-general,  §  494. 
Civ.  Code — 77 


1218  INDEX. 

RAILROAD  CORPORATIONS.      (Continued.) 

Franchise,  sale  of,  terms  and  conditions,  §  494. 
Franchise,  sale  of   to   another   corporation,-  right   of,  §  494. 
Franchises    and   property    of    other   corporations,   power   to    acquire, 

§465. 
Franchises   and  property  of  roads  in   competition,   cannot   purchase, 

§§465,  494. 
Franchises  and  property  of  roads  not  in  competition,  may  purchase, 

§§  465,  494. 
Franchises,  power  to  grant,  §  493. 

Franchise,  statute  limiting  time  within  which  may  be  granted.     Ap- 
pendix, tit.  "Eailroads." 
Franchise,  statutes   relating  to  sale  of  and   governing  conditions   of 

sale.     Appendix,  tit.  "Railroads." 
Franchise,  statute    validating    ordinances    granting.     Appendix,    tit. 

"Railroads." 
Freights,  power  to  regulate,  §  465. 
Gravel,  may  purchase,  §  465. 
Highways,  duty  as  to,  §  513. 

Injuries  to  animals  on  track,  liability  for,  §  485. 
Intersections,  mode  of  making,  §§  465,  469,  472. 
Lands  or  waters  of  cities,  right  to  use,  §§  465,  470. 
Lease  of  other  railroads  hj,  power  of,  §  473a. 
Line  of,  may  change,  §  467. 
Location  of  route,  power  to  change,  §  467. 

Mail  carriers  to  ride  free  on  street-cars.     Appendix,  tit.  "Railroads." 
Map  and  profile  to  be  filed,  §  466. 

Maps  ^^^  profiles,  what  to  show  and  certification  of,  §  466. 
May  borrow  money,  §  456. 
May  carry  freight  and  persons,  §  465. 
May  lay  out  road,  how  wide,  §  465. 
May  purchase  land,  timber,  gravel,  etc.,  §  465. 
May  regulate  force  and  speed  of  trains,  §  465. 
May  regulate  time  and  freights,  §  465. 

May  sell  property  and  franchise  to  another  corporation,  §  494. 
May  sell  to  another  corporation,  §  494. 
Money,  power  to  borrow,  §  456. 
Mortgage  by,  §  456. 

Motive  power,  right  of  steam  roads  to  change,  §  465a. 
OtEcers  to  wear  badge,  §  488. 
Officers     without  badge,  no  authority,  §  488. 
Operation,  act  compelling  by  railroads,  §  468,  Legislation. 
Operation,  forfeiture  for  want  of,  §  468. 
Operation,  full,  what  constitutes,  §  468. 
Operation,  power  of  railroad  commissioners  as  to,  §  468. 
Operation,  railroad    commissioners    may    determine    whether    income 

sufficient  for,  §  468. 
Operation,  reversion  of  land  on  forfeiture  for  want  of,  §  468. 
Operation,  road  to  be  kept  in,  §  46S. 
Operation,  what  excuses,  §  468. 

Operation  where  road  constructed  above  certain  elevation,  §  468. 
Operation,  where   road   constructed  above  certain   elevation,   act  re- 
lating to,  §  468,  Legislation. 
Passengers,  accommodations  for,  duty  to  provide,  §§  481,  483. 
Passengers,  duty  to  receive  and  transport,  §  481. 
Passengers  on  baggage  or  freight  cars,  duty  towards,  §§  483,  484. 
Passenger  refusing  to  pay  fare  or  exhibit  ticket,  §  487. 
Passengers,  refusal  to  receive  or  transport,  damages.  §  482. 
Passengers,  rules  and  regulations,  duty  to  post,  g  484. 


I 


INDEX.  1219 

RAILROAD  CORPORATIONS.      (Continued.) 

Passengers  violating  rules  and  regulations,  not  liable,  §  484. 

Passengers.     See  Passenger  Carriers. 

Powers,  enumeration  of,  §  465. 

Profiles,  filing  of,  §  466. 

Profiles,  what  to  show  and  certification  of,  §  466. 

Promissory  notes,  interest  on,  §  456. 

Promissory  notes,  limit  on  amount,  §  456. 

Promissory  notes,  may  issue,  §  456. 

Promissory  notes,  mortgage  or  deed  of  trust  to  secure,  §  456.. 

Property,  refusal  to  carry  or  deliver,  §  482. 

Eails,  character  of  to  be  used,  §  491. 

Rates  and  charges,  §  489. 

Rates  and  charges,  penalty  for  overcharge,  §  489. 

Rates  and  charges,  posting,  §  489. 

Rates,  fixed  by  railroad  commissioners,  copv  of,  upon  whom  served, 
§  489. 

Rates,  fixed  by  railroad   commissioners,  posting  of,  §  489. 

Rates,  fixed  by  railroad  commissioners,  publication  of,  §  489. 

Rates,  fixed  by  railroad  commissioners,  when  take  effect,  §  489. 

Rates  lowered  to  meet  competition  not  to  be  raised  without  consent, 
.  §  494. 

Rates  not  to  be  raised  without  consent  of  authorities,  §  494. 

Rates,  penalty  for  raising  without  consent,  power,  and  duty  of  at- 
torney-general, §  494. 

Rates,  railroad  commissioners  fixing,  to  serve  copy  of,  §  489. 

Rates,  raising  without  consent,  penalty  for,  §  494. 

Real  estate,  may  acquire,  §  465.  • 

Report,  annual,  verification  of,  §  480. 

Report,  annual,  what  to  state,  §  480. 

Right  of  way  over  state  lands,  grant  of,  §§  474,  475. 

Right  of  way,  selection  of,  how  proved  and  certified,  §  478. 

Rules  and  regulations  as  to  fares  and  passengers,  duty  to  post,  §  484. 

Rules  and  regulations,  passenger  violating,  not  liable,  §  484. 

Rules  and  regulations,  power  to  make  and  enforce,  §  465,  subd.  11. 

Running  of   ears,   duty   as   to,  §  481. 

Sale  of  property  and  franchise  to  another  corporation,  right  of,  §  494. 

Sale  of  property  to  another  railroad,  raising  rates,  penalty,  §  494. 

Sale  to  another  corporation,  competing  road  not  to  be  purchased, 
§  494. 

Sale  to  another  corporation,  effect  of,  §  494. 

Sale  to  another  corporation,  fares  and  freights  not  to  be  increased, 
§  494. 

Sale  to  another  corporation,  limitations  on,  §  494. 

Sale  to  another  corporation,  penalty  for  violating  statute,  and  duty 
of   attorne.y-gcueral,  §  494. 

Sale  to  another  corporation,  terms  and  conditions,  §  494. 

Selection  of  land  or  right  of  way,  how  proved  and  certified,  §  478. 

Sinking  fund   to   pay  bonds,  §  457. 

Speed,  may  regulate,  §  465. 

Starting  of  car,  duty  as  to,  §  481. 

State  lands  granted  for,  revert  when,  §  477. 

State  lands,  permit  to  use,  §  478. 

State  lands,  plat  of  land  selected  or  of  right  of  way,  §  478. 

State  lands,  right  of  way  over,  §§  474,  475,  478. 

State  lands,  rights  in,  not  to  embrace  lands  in  tow^n  or  within  three 
miles   thereof,  §  475. 

State  lands,  selection  of  or  right  of  way  over,  approving  and  certify- 
ing, §  478. 


1220  INDEX. 

EAILROAD  CORPORATIONS.      (Continued.) 

8tate  lands,  wood,  stone,  or  earth  may  take  from,  §  476. 

Steam  roads,  right  to  use  electricity  or  compressed  air,  §  465a. 

Steam  whistle,  penalty  for  failure  to  sound,  §  486. 

Steam  whistle,  sounding  on  approaching  crossings,  §  486. 

Stock  not  transferable  until  previous  calls  or  installments  paid,  §  455. 

Stock  right  to  convert  bonds  or  debts  into,  §  457. 

Stock,  transfer  before   twentv  per  cent  paid   and  certificate  issued, 
§  455. 

Stocks,  bonds,   and   securities   of   roads   in   competition,   cannot   pur- 
chase, §  465. 

Stocks,  bonds,  and  securities  of  roads  not  in  competition,  right  to 
purcliase,  §  465. 

Streets  and  alleys,  consent  of  municipalities  to  use  of,  §  470. 

Streets,  right  to  use,  §§  465,  470. 

Street.     See  Street  Railways. 

Subscription   to    stock,    amount    necessary,   as    prerequisite    to    filing 
articles,  §  293. 

Survey  of,  map  of,  to  be  filed  in  each  county,  §  513. 

Survey  of  road,  approval  of,  rights  on,  §  513. 

Survey  of  road,  supervisors  to  approve  or  reject,  §  513. 

Survey  road,  power  to,  §  465. 

Ten  per  cent  of  amount  subscribed  to  be  paid  in,  §  294. 

Tickets,  duty  to  issue,  §  490. 

Tickets,  refusal  to  issue,  penalty,  §  490. 

Tickets,  rights  of  holders,  §  490. 

Tickets,  to  be  good  six  months,  §  490. 
•       Timber,   may   purchase,  §  465. 

Time  for  running  trains,  §  481. 

Time  for  starting   cars,  §  481. 

Time  for  starting,  delay  in,  penalty  for,  §  2170. 

Time  for  starting,   schedule   establishing  and   publishing,  §  2170. 

Time  of  transportation,  power  to  regulate,  §  465. 

Transfer  of  stock,  §  455. 

Transportation,  power  to  regulate  time  and  manner  of,  §  465. 

Underground  road,  franchise  for,  power  to  grant,  §  493. 

Use  of  other  roads,  right  of,  §  473a. 

Use  of  streets  and  water  of  municipalitv,  couseut  of,  §  470. 

Width   of  road,  §§  465,   513. 

Where  may  construct  road,  §  465. 

Wood,  stone,  and  earth  may  be  taken  from  state  lands,  §  tt76. 

RAILROADS.     See  Railroad  Corporation?. 

RANSOM. 

Of  ship   and   cargo,  §  2380. 

RATE  OF  INTEREST.     See  Interest. 
Annual,  §  1916. 
Bottomrv,  §  3022. 
Judgment,  on,  §  1920. 
Legal,  §§  1917,  1918. 
Respondentia,  §  3039. 

RATIFICATION. 

Of  acts   of  agent,  §  2307.     See   Agency. 

Of  contract  voidable  for  want  of  consent,  §  1588. 

Of  voidable  contract,  §§  1588,  2310. 

Partial,  when  total,  §  2311. 

Prejudice  of  third  person  forbidden,  §  2313. 


INDEX.  1221 

RATIFICATION.     (Coutinued.) 
Eescission    of,  §  2314. 
When  void,  §  2312. 

REAL  PROPERTY.     See  Property. 

A"ccessions.     See  Accession. 

Accumulations,  §§  722-738.     See    Accumulations. 

Acquisition,  mode  of,  §  1000. 

Action  for  possession,  where  right  of  re-entry,  §  793.    i 

Adverse  possession,  §  1007. 

Agreement  to  convey,  statute  of  frauds,  §  1741. 

Agreement  to  sell,  binds  on  to  execute  suflficieut  conveyance,  §  1731. 

Alienation,  suspension  of.     See  Alienation. 

Appointment,  effect  of  power  of,  §  781. 

Appurtenances  are  what,  §§  G5S,  G62. 

Assignee  of  lessee,  liability  of,  §  822. 

Assignment  for  creditors,  §  3466. 

Benevolent  corporation,  right  to  own,  §§  595-598. 

Boundaries  by  road  or  street,  §  831. 

Boundaries  by  water,  §  830.      ^ 

Broker,  employing  to  buy  or  sell,  statute  of  frauds,  §  1624. 

Chattel  interests,  estates  at  will  are,  §  765. 

Chattels  real,  estates  for  years  are,  §  765. 

Chattels  real,  suspending  alienation   of,  §  770. 

Community  property.     See  Husband  and  Wife;  Property. 

Conditional  fees   abolished,  §  763. 

Conditional  limitation,  §  778. 

Conditions  precedent  and  subsequent,  §§  708-711. 

Conditions  precedent  and  subsequent,  grant  on,  §§  1109,  1110. 

Conflict  of  laws,  law  governing,  §  755. 

Consists  of  what,  §  658. 

Contingent   remainder.     See   Remainders. 

Conveyance,  how  only  can  be  transferred,  §  1091. 

Conveyance  of.     See  Conveyance. 

Corporation  may  acquire,  and  how  much,  §  360. 

Covenant.     See  Covenants. 

Damages  for  willful  holding  over  of,  §  3335. 

Damages  for  wrongful  occupation,  §  3334. 

Deeds.     See  Conveyance;   Deeds. 

Devisee's  right  to  recover  rents,  etc.,  §  821. 

Distribution  of.     See  Succession. 

Easements.     See    Easements. 

Ejectment,  notice   not  necessary  before,  §  793. 

Encumbrance  includes  what,  §  1114. 

Escrow,    delivery    in,  §  1057. 

Estates  at  will  are  chattel  interests,  §  765. 

Estates  enumerated,  §§  701,  761. 

Estates  for  life   are   freeholds,  §  765. 

Estates  for  life,  limitation  of  successive,  §  774. 

Estate  for  life  of  third  person  a  freehold,  §  766. 

Estates  for  life,  remainder  of,  §  777. 

Estates  for  years  are  chattels  real,  §  765. 

Estate  in  fee  defined,  §  762. 

Estates  in,  what  interests  are,  §  701. 

Estates  of  inheritance,-  are  fees,  §  762. 

Estates  of  inheritance  are  freeholds,  §  765. 

Estates-tail,  abolished,  §  763. 

Estate-tail,  interest   created,  by,   under   code,  §  763. 

Estate,  time   of   creating,  §  749. 


1222  INDEX. 

REAL  PROPERTY.      (Continued.) 
Fee,  defined,  §  762. 
Fee,  estate  of  inheritance  is,  §  762. 

Fee,  words  of  inheritance  not  necessary  to  transfer  of,  §  1072. 
Fence,  partition,  duty  to   maintain,  §  SH. 
Fixtures.     See  Fixtures. 
Freehold,  estate  for  life  is,  §  765. 
Freehold,  estate  for  life  of  third  person  is,  §  766. 
Freehold,  estate  of  inheritance  is,  §  765. 
Freehold  may  commence  at  future  day,  §  773. 
Future  estate,  limitations  of,  what  valid,  §  767. 
Future  estates  created  how,  §  773. 
Future  estates,  qualities,  §  699. 

Future  estate,  to  commence  in  futuro,  without  intervention  of  prece- 
dent estate,  §  767. 
Future  interests  defeated  when,  §§  739,  740. 
Future  interests    not    defeated    when,  §§  741,    742. 
Future  interests,  what  not  recognized,  §  703. 
Future  interests.     See  Future  Estate;  Future  Interests. 
Heirs  and  issue,  interpretation  of<§  1071. 
Heirs  of  tenant  for  life,  when  to  take  as  purchasers,  §  779. 
Highway  as  boundary,  §  831. 
Holding  over,  willful,  damages  for,  §  3335. 
Includes  what,  §§  14,  658. 
Income,  accumulation  of,  §§  722-733. 
Infant's  contracts  respecting,  §  33. 
Instrument  affecting  title,  where  recorded,  §  1218. 
Insurance  companies  may  purchase  and  hold,  §  415. 
Interests  in,  denominated  estates,  §  701. 
Interests  in,  generally,  §  701. 
Interests  in.     See  Property. 
Interest,  time  of  creating,  §  749. 
Islands,  to  whom  belong,  §§  lOlG-1018. 
Judgment  for  possession  or  title,  §  3375. 
Kinds  of,  §  658. 
Land    is   what,  §  659. 
Lateral  support,  excavations,  §  832. 
Laws  governing,  §  755. 

Leases  of.     See  Landlord  and  Tenant;  Leases. 
Lessees  and  their  assignees,  rights  of,  §  823. 
Lessee's  assignee,  liability  of,  §  822. 
Limitation  of  successive  estates  for  life,  §  774. 
Alinor's  contract  respecting,  §  33. 

Monuments,  duty  of  coterminous  owners  to  maintain,  §  840. 
Names   and   classifications    of   estates   in,   when    only   apply   to   per- 
sonalty, §  702. 
Obligations  of  coterminous  owners,  §  841. 
Occupancy',  title  by,  §  1006. 

Owner's  rights  above  or  beneath  surface,  §  829. 
Perpetuities,  §§  715,  716,  770. 
Possession  of,  how  recovered,  §  3375. 
Powers,  execution  of,  §  860.     See  Powers. 
Prescription,  §  1007. 

Profits  liable  to  creditors,  though  trust  to  receive  same,  §  859. 
Property  is  either  read  or  personal,  §  657. 
Purchasers,  heirs  of  life  tenant  to  take  as,  when,  §  779. 
Recording  instruments  affecting.     See  Recording. 
Re-entry,  transfer  of  right  to,  §  1046. 
Re-entry,  when   and  how  to  be  made,  §§  791,  793. 


INDEX.  1223 

REAL  PROPERTY.      (Contiuued.) 
Remainders.     See   Remainders. 

Rent  dependent  on  life  recoverable  after  death,  §  825. 
Rents,  grant  of,  §  1111. 

Rents  liable  to  creditors,  though  trust  to  receive  same,  §  859. 
Rents,  right  -of   grantee  to  recover,  §  821. 
Restrains  upon  alienation,  void,  §  711.     See  Alienation. 
Reversions.     See  Reversions. 
Right  of  way,  §  802. 
Rule  in  Shelley's  case,  §  779. 
Sale  of,  agreement  for,  §§  1731-1734. 
Servitudes.     See  Easements.     . 
Shelley's  case,  rule  in,  §  779. 
Social  corporation,  right  to  hold,  §§  595-598. 
Specific  performance   of   contract   to   convey,  §  1741. 
Specific  performance.     See  Specific  Performance. 
Statute  of  frauds,  agreement  to  convey,  §  1741. 
Street  as  boundary,  §  831. 

Successive  estates,  for  life,  limitation  of,  §  774. 
Suspension  of  alienation.     See  Alienation. 
Tenancy  at  will,  termination  of,  notice,  §§  789,  790.     ■ 
Tenant  at  will,  rights  of,  §§  819,  820. 
Tenant  for  life,  duty  as  to  buildings,  fences,  etc.,  §  840. 
Tenant  for  life,  rights  of,  §  818. 

Tenant  for  life,  taxes  and  charges,  duty  to  pay,  §  840. 
Tenant  for  years,   rights   of,  §§  819,   820. 
Termination  of  ownership,  in  general,  §§  739-742. 
Termination  of  tenancy   at   will,   notice,  §§  789,   790. 
Timber,  cutting,  or  injuring^  damages  for,  §  3346. 
Time  of  creating  interest,  §  749. 
Time  of  enjoyment,  fixing,  §  707. 
Title  deeds,  to  whom  belong,  §  994. 

Transfer  of.     See  Conveyance;  Deeds;  Grant;  Transfer. 
Trees  on   the   line,  §  834. 
Trees  wholly  on  land   of  one,  §  833. 
Trusts  and  uses  in  relation  to,  §§  847-871. 
Trust  to  be  written,  §  852. 
Trusts.     See  Trusts. 
Uses.     See  Trusts. 

Uses  and  trusts  in  relation  to,  §§  847-871. 
Warranties,  liability  for,  §  1115. 
"Warranties,  lineal  and  collateral,  abolished,  §  1115. 
Waste,  grantee''s  right  to  recover  for,  §  821. 
Waste.     See  Waste. 
Waters  as  boundary,  §  830. 
What  included  in,  §  14. 
What  law  governs,  §  755. 
What  property    is,    §  658. 
Willful  holding  over  of,  damages  for,  §  3335. 
Wrongful  occupation  of,  damages  for,  §  3334. 

REASON. 

Being  the  same,  rule  the  same,  §  3511. 
Ceasing,  rule  should  cease,  §  3510. 

RECEIPT. 

Insurance  premium,  of,  effect  of,  §  2598. 
May  be  demanded  before  payment,  §  3137. 
Right  to  demand,  §  1499. 
Warehouseman's.     See  Warehousemen. 


1224  INDEX. 

RECEIVER. 

Alimony,  to  enforce,  §  140. 

Appointing,  where   alimonv  or  maintenance  allowed,  §  140. 

Corporation  authorized  to  act  as,  minimum  capital  required  and  affi- 
davit as  to,  §  290a. 

Deposit  of  money  in  trust  company  and  discharge  from  liability. 
Appendix,  tit.  "Banking,"  §  91. 

Deposit  of  personal  assets  in  trust  company  and  reduction  of  bond. 
Appendix,   tit.   "Banking,"  §  93. 

Statute  authorizing  corporation  to  act  as.  Appendix,  tit.  "Corpora- 
tions." 

RECITALS. 

Eecourse  to,  in  interpreting  a  grant,  §  1067. 

RECOGNIZANCES.     See  Bail;  Bonds;   Suretyship. 
Sureties  on,  when  are  called  bail,  §  2780. 

RECONVEYANCE. 

By  grantee  on  non-performance  of  conditions  subsequent,  §  1109. 
Cancellation  or  redelivery  of  grant,  not,  §  1058. 

RECORDER.     See   Recording. 

Acknowledgments  may  take,  §  1181. 

Affidavit  of  performance  of  annual  "work  on  mine,  fee  for  recording, 
§ 1426n. 

Certificate  showing  name  and  residence  of  person,  firm,  or  corpora- 
tion, filing  of,  with,  §  1163. 

Citj',  may  solemnize  marriage,  §  70. 

Duties  of  recorder  prescribed  in  Political  Code,  §  1172. 

Fee  for  filing  certificate  of  name,  §  1163. 

Fee  for  filing  certificate  of  place  where  summons  may  be  filed,  §  1163. 

Fees  of  recorder  to  be  indorsed  on  instrument,  §  1165. 

RECORDING.     See  Recorder. 

Acknowledgment  of  instrument  executed  bv  corporation  before, 
§1161. 

Acknowledgment,  what  instruments  cannot  be  recorded  without, 
§1161. 

Acknowledgment,  what  instruments  may  be  recorded  without.  §§  1159, 
1160,  1163. 

Affidavit  of  annual  work  on  mining  claim,  recording  of,  and  fee  for, 
§ 1426n. 

Another  countv,  recording  copv  of  recorded  convevance  in,  and  its 
•  effect,  §  1213. 

Assignment  for  creditors,  to  be  recorded,  §§  1164,  3458,  3459. 

Bona  fide  purchaser  or  mortgagee,  rights  against  unrecorded  instru- 
ment, §§  1107,  1214. 

Books  of  record, §  1171. 

Certificate  of  place  where  summons  may  be  served,  acknowledgment 
not  necessary  §  1163. 

Certificate  of  place  where  summons  may  be  served,  change  of  resi- 
dence, filing  affidavit,  §  1163. 

Certificate  of  place  where  summons  mav  be  served,  fee  for  record- 
ing, §  1163. 

Certificates  of  places  where  summons  may  be  served,  indexing,  §  1163. 

Certificate  showing  name  and  residence  of  person,  firm,  or  corpora- 
tion, etc.,  verification  of,  §  1163. 

Certified   and   proven   instruments,    recording,  §§  1161,    1162. 

Certified  copies  of  record  as  evidence,  §  1207. 


INDEX.  1225 

EECORDING.      (Continued.) 

Certified    copies    of    instruments    defectively    executed    as    evidence, 

§  1207. 
Certified  copies  of  instruments  or  records  affecting  realty,  right  of 

and  effect  of,  §  1218.  * 

Certified  copy  of  recorded   conveyance  recorded  in   another   county, 

as  notice,  §§  1213,   1218. 
Certified  copy  of   recorded  instrument  may  be   recorded  in  another 

county,  §§  1213,  1218. 
Certified  copy,  recording  of,  where  original  recorded  in  wrong  county, 

§  1213. 
Chattel  mortgage,  of,  §§  2957,   2963. 

Code   does  not  atfect  instruments   made  before,  §§  1205,   1206. 
Code,  instruments  made  before,  recording  of,  §  1206. 
Complete  when,  §  1170. 

Conveyance,  copy   of,   in   another   county,  §  1213. 
Conveyance  defined,  §  1215. 

Conveyance  recorded  before    code,  §§  1205,   1206. 
Conveyance  void  unless  recorded,  when,  §  1214. 
Conveyance,  when  and  to  whom  notice,  §  1213. 
Conveyance  within  meaning  of  recording  act,  §  1215. 
Copy,  in  another  county,  §  1213. 

Corporation,  acknowledgment  of  instrument  recorded  by,  §  1161. 
County  in  which  instruments  to  be  recorded,  §§  1169,  2480. 
Curative  act,  act  curing  defectivel}-  executed  instruments,  §  1207. 
Declarations  of  marriage,  §§  77,  79a. 
Deed  absolute  intended  as  mortgage,  §  2950. 
Deeds  and  mortgages  separately,  §  1171. 
Defectively  executed  instruments,  act  validating  record  of  does  not 

affect  prior  rights,  §  1207. 
Discharge  of  mortgage,  §  2940. 
Evidence,   certified  copies  of  record  as,  §  1207. 
Fees  for.     See  Eecorder. 

Grants  and  mortgages  to  be  recorded  in  separate  books,  §  1171. 
Homstead  declaration,  where  recorded,  §§  1264,  1268. 
Homestead  selection,  §§  1262,  1269. 
Instruments  deemed  recorded,  when,  §  1170. 
Instruments  proven  and  certified,  §§  1161,  1162. 
Instruments  which  may  be  recorded,  §  1158. 

Inventory  of  wife's  property,  recording  of  and  its  effect,  §§  165,  166. 
Judgments  may   be   recorded,  §  1158. 

Judgments  may  be  recorded  without   acknowledgment,  when,  §  1159. 
Judgments  proving  instrument  entitles  instrument  to  record,  §  1204. 
Judgments,  unrecorded  conveyance  or  mortgage  is  not  good  against, 

§  1214. 
Lease  for  not  more  than  year  will  not  be  recorded,  §  1214. 
Letters  patent  lost,  recording  certified  copy  of,  and  effect  of,  §  1160. 
Letters  patent   may  be   recorded   without   acknowledgment,  §  1160. 
Liens,  duty  to  record,  §  1164. 
Marriage  certificate,  §  74. 
Marriage  declaration,  §  77. 
Marriage  settlement,  §§  179,  180. 
Marriage  settlement  and  its  effect,  §§  179,  180. 
Mill  site  claim  recording  of  and  fee  for,  §  1426k. 
Mining  claim,  notice  of  location,  recording  of  and  fee  for,  §§  1426b, 

1426d,    1426g. 
Mining  claims,  notices  of  location  may  be  recorded  without  acknowl- 
edgment, §  1159. 


1226  INDEX. 

RECORDING.      (Continued.) 

Mining  claims,  recording  affidavits  of  work  and  notices  respecting, 
§  1159. 

Mining  claims  record  of  notice  of  location,  effect  of,  §  1159. 

Mortgage,  assignment  of,  may  be  recorded,  §  2934. 

Mortgage,  assignment  of,  record  of,  as  notice,  §§  2934,  2935. 

Mortgage,  conveyance  includes,  §  1215. 

Mortgage,  dutv  to   record,  §  1164. 

Mortgage  of  ship,  §  2958. 

Mortgages  and  grants  to  be  recorded  in  separate  books,  §  1171. 

Mortgages,  recording  of,  §  2952. 

Notice;  certified  copy  of  recorded  eonvevance  recorded  in  another 
county,  §  1213. 

Notice,  copy  of  conveyances  recorded  in  another  county  is,  §  1213. 

Notice  of  appropriation  of  water,  recording  of,  §  1421. 

Notice  of  location  of  mining  claims,  record  of,  as  notice,  §  1159. 

Notice,  record  of  assignment  of  mortgage  as,  §§  2934,  2935. 

Notice,  record  of  conveyance  is,  §  1213. 

Notice,  record  of  instrument  as,  §§  12"07,  1213. 

Notice  to  delinquent  co-owner  of  mining  claim,  recording  of  and  fee 
for,  §  14260. 

Notice,  defectively  executed  instrument,  when  is,  §  1207. 

Notice,  instrument  executed  without  acknowledgment,  when  is,  §  1207. 

Office,  in  what  made,  §§  1169,  2480. 

Partnership,  of  certificate  of,  §.2480. 

Partnership,  special,  dissolution  of,  §  2509. 

Power  of  attorney  to  execute  mortgage,  §  2933. 

Power  of  attorney  which  is  recorded,  how  only  revoked,  §  1216. 

Priority  of,  §  1214. 

Proof  of  instrument,  action  for,  and  effect  of  the  judgment,  §§  1203, 
1204. 

Proved  and  certified  instruments,  recording,  §§  1161,  1162. 

Real  property,  any  instrument  or  judgment  affecting  may  be  re- 
corded, §  1158. 

Recorded,  instrument  when  deemed  to  be,  §  1170. 

Recording  instruments  affecting  title  in  different  counties,  §  1218. 

Saturday  afternoon,  instruments  may  be  recorded  on,  §  7. 

Trust,  transfer  in,  for  creditors,  to  be  recorded,  §§  1164,  3458,  3459. 

Unrecorded  instrument,  effect  of  against  bona  fide  purchasers  or 
mortgagees,  §§  1107,   1214. 

Unrecorded  instrument,  effect  of  as  against  judgments,  §  1214. 

Unrecorded  instrument  good  as  to  those  who  have  notice,  §  1217. 

Unrecorded  instrument  good  between  parties,  §  1217. 

Vessels,  transfer  of,  recording  governed  by  federal  laws,  §  1173. 

Want  of,  its  effect,  §  1217. 

"What  instruments  may  be  recorded,  §§  1158,  1162. 

What  law  governs,  §§  1205,  1206. 

When  instrument  deemed  recorded,  §  1170. 

Where  to  be  recorded,  §§  1169,  2480. 

Wine,  sale  of,  when  not  necessary,  §  3440. 

RECORDS.     See  Recording. 

As  evidence.     See  Evidence. 

RECRIMINATION.     See  Divorce. 
Defeats  divorce,  §  111. 

REDELIVERY. 

Of  grant  -'oes  not  retransfer  title.  §  1058. 


INDEX.  1227 

REDEMPTION".     See  Liens. 

Contract  in  restraint  of,  void,  §  2889. 

Foreclosure  of  right  of,  §  2931. 

Foreclosure  of  right  to  redeem  pledge,  §  3011. 

Franchise,  of,  §  392. 

Franchise,  of,  from  execution  sale,  §  392. 

Lien,  contract  in  restraint  of  right  of,  void,  §  2889. 

Lien,  from,  §§  2903-2905. 

Eeleasing  riglit  of,  in  assignment  for  creditors,  §  3468. 

RE-ENTRY. 

Transfer  of  right  to,  §  1046. 
When  and  how  to  be  made,  §  791. 

REFEREE. 

In  divorce  cases,  §  130. 

REFORMATION. 

Authority  of  court  in  suit  for,  §  3401. 
Contract  may  be  reformed  when,  §  3399. 
Fraud,  reformation  of  contract  for,  §  3399. 
Inquiry,  extent  of,  in  suit  for,  §  3401. 
Mistake,  reformation  of  contract  for,  §  3399. 
Presumption  as  to  intent  of  parties,  §  3400. 
Specific  performance  of  reformed  contract,  §  3402. 
What  incjuiry  made  by  ourt,  §  3401. 

REGISTRATION.     See  Eeeording. 

REGISTRY. 

Ships,  of,  §  966. 

REGULATIONS.  See  Passenger  Carriers;  Eailroad  Corporations;  Re- 
ligious, Social  and  Benevolent  Corporations;  Street  Eailway  Cor- 
porations. 

REINSURANCE. 

Defined,  §  2646. 

Original  insured  no  interest  in,  §  2649. 
Presumed  to  be  against  liability,  §  2648. 
What  must  be  communicated  on,  §  2647. 

RELATION. 

Rights   under   appropriation   of   water   relate   to   time  notice  posted, 
§  1418. 

RELATIONSHIP. 

Degrees,  how  computed,  §§  1389-1393. 
Half  blood,  right  to  succeed,  §  1394. 
Husband  and  wnfe  cannot  impair  legal,  §  159. 
Succession  tliough  illegitimate,  §  1388. 

RELATIVES. 

Abduction  or  seduction  of  certain  relatives  forbidden,  §  49. 

Alienage  of,  right  of  succession,  §  1404. 

Legacies  to,  chargeable  with  debt,  §  1361. 

Of  half  blood  succeed  alike  with  whole  blood,  §  1394. 

Protect  child  from  parental  abuse,  what,  may,  §  203. 

Eight  of  defense  of, §§  43,  50. 

RELEASE. 

Creditor,  by,  obligation  extinguished  hy,  §  1541, 


1228  INDEX. 

RELEASE.      (Continued.) 

Debtor,  of,  by  substitution,  §  1531. 

General,  effect  on  claims  creditor  did  not  know  of,  §  1542. 

General,  extent  of,  §  1542. 

Guardian,  release  to  by  ward,  §  256. 

Joint  debtor,  of,  §  1543. 

Liquidating  partner  may  release  claims,  §  2461. 

Obligation  extinguished  by,  §  1541. 

RELIEF.     See  Compensation;  Damages. 
In  general,  §  3274. 

Preventive  relief.     See  Preventive  Belief. 
Specific.     See  Specific  Belief. 

RELIGIOUS,  SOCIAL,  AND  BENEVOLENT  CORPORATIONS. 

Any  number  of  persons  may  incorporate,  §  593. 
Articles  to  set  forth  what,  §§  602,  604. 

Articles  of  incorporation,  provision  as  to  what  they  must  show  re- 
pealed, §  594. 
Bonds,  power  to  issue,  §  598. 
Bonds,  proceedings  on  issuance  of,  §  598. 
Burial  plots,  power  to  sell,  §  598. 

By-laws  to  provide  for  necessary  records  to  be  kept,  §  378. 
By-laws,  what  may  be  provided  for  in,  §  599. 
Cemeteries,  §  595.     See   Cemetery  Corporations. 
Directors,  election  and  number  of,  §  593. 
Consolidation,  debts  and  liabilities  not  affected,  §  605. 
Consolidation  of,  articles  of  incorporation,  resolution  of  consolidation 

to  be  attached  to,  §  605. 
Consolidation  of,  articles  of  incorporation,  what  to  contain,  §  605. 
Consolidation  of,   articles    of   new   corporation,    signing,    subscribing 

and  acknowledging,  §  605. 
Consolidation  of,  articles,  where  to  be  filed,  §  605. 
Consolidation  of,  authorized,  §  605. 

Consolidation  of,  certificate,  issuance  and  form  of,  §  605. 
Consolidation  of,  effect  on  old  corporations,  §  605. 
Consolidation,  manner  of,  §  605. 
Consolidation,  new  articles  of  incorporation,  §  605. 
Consolidation,  new  corporation,  rights,  duties,  powers  and  liabilities, 

§  605. 
Consolidation,  notice  of,  §  605. 
Consolidation,  proceedings  on,  §  605. 

Consolidation,  resolution  calling  for,  what  to  state,  §  605. 
Consolidation,  right  of,  §  605. 

Corporations  sole,  articles  of  incorporation,  §  602. 
Corporations  sole,  bishop,  priest,  etc.,  holds  in  trust,  §  602. 
Corporations  sole,  electing  to  continue  existence  under  code,  §  602. 
Corporations  sole,  limit  on  land  held  by,  §  602. 
Corporations  sole,  may  become  when,  §  602. 
Corporations  sole,  powers  and  liabilities,  §  602. 
Corporations  sole,  proof  of  appointment  or  election  of  bishop,  priest, 

etc.,  §  602. 
Corporations  sole,  superior  judge  to  have  access  to  books,  §  602. 
Corporations  sole,  vacancy  in  incumbency  des  not  affect  right  to  be 

beneficiary,  §  602a. 
Corporations  sole,  vacancy-  in  incumbency,  effect  on  agency,  §  602a. 
Corporations  sole,  vacancy  in  incumbency,  has  continuous  existence 

notwithstanding,  §  602, 


i 


INDEX. 


1229 


RELIGIOUS,  SOCIAL,  AND  BENEVOLENT  CORPORATIONS.  (Con- 
tinued.) 

Corporations  sole,  vacancy  in  incumbency,  may  take  gifts,  bequests, 
etc.,  pending,  §  602a. 

Cumulative  voting  in  meeting  of,  §  307. 

Directors'  annual  report,  §  597. 

Directors  control  powers,  business  and  property  of,  §  305. 

Directors,  election  and  number  of,  §§  290,  305,  593. 

Directors,  election  of,  §  290. 

Directors,  increase  or  decrease,  and  proceedings  on,  §  290. 

Directors,  increasing  or  diminishing  number  of-,  §  599. 

Directors,  organization  of  board,  §  599. 

Directors,  term  of  office  of,  §  290. 

Elections,  no  cumulative  voting  unless  by-laws  provide,  §  307. 

Fees  and  dues,  §  599. 

Formation  of,  authorized,  §  593. 

Formation  of,  manner  of,  §  593. 

Formed  how,  §  593. 

Indebtedness,  contracting,  securing,  paying,  and  limiting,  §  599. 

Insurance  laws,  fraternal  societies  exempt  from,  §  451. 

Isuranee.     See  Insurance;  Insurance  Corporations. 

Limitation  on  right  to  hold  land,  §§  595,  596. 

Lodges  and  halls  for,  number  of  directors  in  corporations  to  erect 
for,  §  290. 

Meetings,  quorum,  §  599. 

Member,  how  only  deprived  of  rights,  §  601. 

Members  admitted  after  incorporation,  rights  and  liabilities,  §"599. 

Members,  expulsion,  suspension,  and  restoration  of,  §  599. 

Members  may  be  admitted  after  incorporation,  §  600. 

Members,  qualification,  election,  appointment,  and  terms  of  admis- 
sion, §  599. 

Membership  in,  how  only  transferred,  §  601. 

Mortgage  of  property,  power  of,  §598. 

Mortgage  of  property,  proceedings  necessary,  §  598. 

Not  governed  by  laws  relating  to  insurance  companies,  §  451. 

Not  insurance  companies,  §  451. 

Officers,  election  and  appointment,  validity  of,  §  599. 

Orphan  asylum  may  hold  how  much  property,  §  595. 

Orphan  asylums,  §  595. 

Powers,  business,  and  property  of  by  whom  exercised,  §  305. 

Power  to  hold  property,  §  595. 

Property  held  before  incorporation,  §  595. 

Real  estate,  limit  upon  amount  that  can  be  held  by,  §§  595,  602. 

Eeal  estate  may  be  sold  or  mortgaged,  §  598. 

Real  estate,  may  hold,  §§  595,  596. 

Real  estate,  mortgage  or  sale  of,  proceedings  to  be  taken,  §  598. 

Real  estate,  surplus  to  be  sold  within  what  time,  §  596. 

Records  to  be  kept  by,  §  378. 

Records  to  be  open  to  inspection,  §  378. 

Religious,  annual  election,  where  held,  §  604. 

Religious,  annual  meetings,  where  held,  §  604. 

Religious,  articles  of  incorporation,  contents  of,  §  603. 

Religious,  articles  of  incorporation,  subscription  and  acknowledg- 
ment, §  603. 

Religious,  by-laws  of,  §  604a. 

Religious,  directors  of,   election  of,  §  604a. 

Religious,  head  office,  where  to  be  maintained,  §  604. 

Religious,  how  formed,  §  604a. 


1230  INDEX. 

RELIGIOUS,  SOCIAL,  AND  BENEVOLENT  CORPORATIONS.  (Con- 
tinued.) 

Eeligious,  may  ineoipoiate,  §§  603,  604a. 

Religious,  power  to  hold  aud  administer  property,  §  604. 

Religious,  real  estate,  right  to  hold,  and  limitation  upon,  §§  604,  604a. 

Eeligious,  rights,   powers,   duties    and   limitations,  §  604a. 

Religious,  what  bodies  may  form,  §  604a. 

Report,  annual,  of  directors,  §  597. 

Rules  and  regulations  of,  §  599. 

Rules  of  religious  denominations,  requiring  administration  of  tem- 
poralities, §  602. 

Rules,  regulations,  etc.,  what  may  be  adopted,  §  599. 

Rules,  regulations,  or  discipline  as  part  of  by-laws  or  articles,  etc., 
§599. 

Sale  or  mortgage  by,  proceedings  in  case  of,  §  598. 

Sale  of  property,  proceedings  to  be  taken,  §  598. 

Sale  of  property,  right  of,  §  598. 

Surplus  real  estate  to  be  sold,  §  596. 

RELIGIOUS  SOCIETIES.     See  Religious,  Social,  and  Benevolent  Corpora- 
tions. 
Incorporation    of,  §§  603,   604. 

REMAINDERS.     See  Future  Interests;  Reversion. 

Conditional  limitation,  remainder  when  deemed  to  be,  §  778. 

Construction  as  to  time  of  taking  effect,  §  780. 

Contingency  abridging  precedent  estate,  may  be  limited  on,  §  778. 

Contingent  estate,  created  how,  §  773. 

Contingent,  in  fee,  creating  on  prior  remainder  in  fee  dependent  on 

death  before  majority,  §  772. 
Contingent  remainder  on  term  of  years,  §  776. 
Contingent  remainder   on  term  for  years  must  vest   during  lives  in 

being,  §  776. 
Created,  how,  §  773. 

Death  of  devisee  before  testator,  effect  on,  §  1344. 
Defined,  §  769. 

Estate  for  life,  remainder  may  be  limited  thereon,  §  773. 
Estate  for  years,   contingent   remainder  on,  to   vest   during  lives   in 

being,  §  776. 
Estate  for  years,   remainder   of,  mav   be   created   on   term  of  years, 

§  773. 
Estate  for  years,  remainder  upon  estate  for  life  in,  to  be  for  whole 

residue  of  term,  §  775. 
Fee,  limiting  upon  fee,  §  773. 

Fee,  remainder  in,  limited  upon  fee-tail,  effect  of,  §  764. 
For  life  upon  term  of  years  must  be  to  one  in  esse,  §  777. 
Freehold,  remainder  of  maj-  be  created  on  term  of  years,  §  773. 
Future  and  contingent  estates,  how  created,  §  773. 
Grant  of,  eft'ectual  without  attornment  of  tenant,  §  1111. 
Grrant  of,  rights  of  tenant  paying  rent  before  notice,  §  1111. 
"Heirs"  and  "issue,"  meaning  of,  §  1071. 
Heirs  of  remainderman  who  is  life  tenant  take  under  remainder  and 

not  as  successors  when,  §  779. 
In  fee  upon  fee-tail,  §  764. 

Lapse  of  limited  interest,  effect  on  remaindermen,  §  1344. 
May  be  limited  on  termination  by  any  means  of  precedent  estate, 

§767. 
May  be  limited  without  intervention  of  preceut  estate,  §  767. 


INDEX,  1231 

REMAINDERS.      (Continued.) 

Of  estates  for  life,  on  term  of  years  to  be  to  one  in  esse,  §  777. 

Owner  may  sue  for  injury  to  inheritance,  §  826. 

Power  of  appointment,  effect  of,  on  future  interest  where  not  exe- 
cuted, §  781. 

Reversion.     See  Reversion. 

Shelley's  Case,  rule  in,  abolished,  §  779. 

Specific  legatee  for  life,  inventory  by,  and  what  to  contain,  §  1365. 

Successive  estates  for  life  cannot  be  limited  except  to  persons  in 
being,  §  774. 

Successive  estates  for  life  extending  over  lives  in  being,  remainder 
on,  taking  effect  of,  §  774. 

Successive  estates  for  life,  remainder  on,  to  be  in  fee,  §  775. 

Term  of  years,  contingent  remainder  on,  §  776. 

Term  of  years,  may  be  created  expectant  on,  §  773. 

Time  of  taking  effect  of,  §  780. 

Upon  contingency,  §  778. 

Upon  estate  for  life  created  in  a  term  of  years,  §  773. 

Upon  estate  for  life  in  a  term  of  years  must  be  for  residue,  §  775. 

Upon  estates  for  life  or  term  of  years,  §  775. 

Upon  successive  estates  for  life  some  of  which  are  void,  §  774. 

Vested  or  contingent,  may  be  created  on  term  of  years,  §  773. 

Waste,  remedies  of  remaindermen  for,  §  826. 

What  title  vests  under,  §  779. 

REMEDY. 

Exists  for  every  wrong,  §  3523. 
Preventive  relief.     See  Preventive  Relief. 
Specific  relief.     See  Specific  Relief. 

RENT.     See  Landlord  and  Tenant. 

Acceptance,  when  renewal  of  lease,  §  1945. 

Covenant  for  payment  runs  with  land,  §  1463. 

Dependent  on  life,  recoverable  after  death,  §  825. 

Forfeiture  by  letting  room  in  parts,  §  1950. 

Grantee's  remedy  for  non-performance  of  terms  of  lease,  §  821. 

Grantee's  remedy  for  waste,  forfeiture,  etc.,  §  821. 

Grantee's  remedy  to  recover,  §  821. 

Grant  of,  rights  of  tenant  paying  before  notice  of,  §  1111. 

Life,  rent  dependent  on,  recoverable  after  death,  §  825. 

Life,  under  lease  for,  remedy  for,  §  824. 

Payable,  when,  §  1947. 

Payment  to  grantor,  binding  on  grantee,  §  1111. 

Remedies  by  assignees,  §§  821,  822,  823. 

Servitude,  right  of  taking  as,  §  802. 

Term  of  hiring  indicated  by,  §  1944. 

Treble,  on  holding  over,  §§  3344,  3345. 

Trust,  express,  to  receive,  §  857. 

RENUNCIATION. 

By   partner,  §§2417,  2418. 

REPAIR. 

Borrower,  when  to,  §  1889. 

Coterminous  owners  to  repair  fence,  §  841. 

Hirer  of  personal  property,  at  expense  of  letter,  §  1956. 

Hirer,  when  to,  §  1929. 

Landlord,  when  to,  §  1941. 

Lettee's  obligations  as  to  repairs,  §  1955. 


1232  INDEX. 

REPAIR.     (Continued.) 

Letter  of  personal  property,  obligations  of,  §  19.!)5. 

Owner   of   estate  for  life   to,  §  840. 

Personalty,  lien  for  repairs  to,  §  3051. 

Ship-master,  authority  to,  §  2376. 

Ship,  owner  for  voyage  to,  §  965. 

Tenant  for  life  to  repair  fence,  §  840. 

Tenant  may  at  expense  of  landlord,  when,  §  1942. 

REPEAL. 

Laws  relating  to  corporations.     See  Corporations,  II. 
Of  former  statutes  by  code,  §  20. 

REPLEVIN. 

Possession  of  personal  property,  how  recovered,  §  3379.  , 

REPORT. 

Appraisers  of  homestead,  of,  §  1252. 
Official  proceedings,  privileged,  §  47. 

REPRESENTATION. 

Inheritance  by,  §  1403. 

Inheritance  by,  right  of,  takes  place,  when,  §  1403. 

RESCISSION. 

Alteration  of  obligation,  of,  does  not  restore  guaranty,  §  2821. 
Application  of  performance,  rescission  of,  §  1479. 
Buyer,  by  at  auction  for  by-bidding,  §  1797. 
Buj-er,  by,  if  seller  refuses  inspection,  §  1785. 
Buyer,  by,  on  breach  of  warranty,  §  1786. 
Compensation,  court  may  require  to  be  made,  §  3408. 
Conditions  of,  §  1691. 

Consent  not  free,  contract  subject  to, §  1566. 

Consent  obtained  by  mistake,  duress,  menace,  fraud,  or  undue  influ- 
ence, §  1689. 
Consent  of  all  parties  to,  §  1689. 
Contract,  of,  in  what  cases  allowed,  §  1689. 
Contracts,  of,  when  adjudged,  §  3406. 
Diligence  in,  §  1691. 
Equity,  party  required  to  do,  §  3408. 
Extinguishes  contract,  §  1688. 
Grounds  for,  §§  1689,  3406. 

How  accomplished  when  not  consented  to,  §  1691. 
Infant,  by,  §  35. 
Insane  persons,  by,  §  39. 

Insurance,  fire,  for  alteration  increasing  risk,  §  2753. 
Insurance,  for  fraudulent  valuation,  §  2736. 

Insurance,  marine,  eventual  falsity  of  representation,  effect  of,  §  2677. 
Insurance,  marine,  where  representation  intentionally  false,  §  2676. 
Insurance,  of,  at  what  time  may  be  exercised,  §  2853. 
Insurance,  of,  for  concealment,  §§  2562,  2569. 
Insurance,  of,  for  false  representation,  §  2580. 
Insurance,  of,  for  violation  of  material  provision.  §  2610. 
Insurance,  of,  violation  of  material  warranty,  §  2610. 
Laches,  party  rescinding  must  not  be  guilty  of,  §  1691. 
Lunatic,  bv,  §  39. 
Mistake,  for,  §§  1689,  1690,  3407. 
Novation,  of,  §  1533. 
Person  not  without  understanding,  by,  §  39. 


INDEX.  1233 

RESCISSION.      (Contiuued.) 
Ratification,  of,  §  2314. 
Requirements  on  adjudging,  §  3408. 
Restoration  of  benefits,  §  1691. 
Restoration  of  the  status  quo,  §  3407. 
Restoration  of  thing  wrongfully  received,  §§  1712,  1713. 
Risk,  for  alteration  increasing,  §  2753. 
Sale,  for  breach  of  warranty,  §  1786. 
Sale,  of,  for  non-payment  of  price,  §  1749. 
Stipulations  in  contract,  not  barred  by  what,  §  1690. 
Stoppage  in  transit  is  not,  §  3080. 
Third  person  may  enforce  contract  before,  §  1559. 
Valuation,  for  fraudulent,  §  2736. 
Warranty,  for  violation  of,  etc.,  §  2608. 

RESERVATIONS. 

Interpreted  in  favor  of  grantor,  §  1069. 

RESIDENCE.     See  Domicile;  Husband  and  Wife. 
Divorce  cases,  in.     See  Divorce. 
Guardian  may  fix,  of  ward,  §  248. 

RESIDUE. 

Of  testator's  estate,  bequest  of,  §  1333. 
Of  testator's  estate,  devise  of,  §  1332. 

RES  JUDICATA. 

Judgment  annulling  marriage,  §  86. 

RESPONDENTIA.     See  Bottomry. 

Bottomry,  code  provisions  relating  to,  what  apply  to,  §  3039. 

Bottomry,  provisions  of  law  of,  what  apply  to  respondentia,  §  3039. 

Change  of  possession  not  necessary,  §  3440. 

Defined,  §  3036. 

Interest,  rate  of,  §  3039. 

Liens,  subject  to  provisions  of  chapter  on,  §  2877. 

Loans  are  governed  by  provisions  relating  to  bottomry,  §  3U39. 

Master,  right  to  hypothecate  cargo  on,  §  3038. 

Not  affected  by  law  of  mortgages,  §  2942. 

Owner  of  cargo,  by,  §  3037. 

Owner  of  cargo,  right  to  hypothecate  on,  §  3037. 

Owner's  obligations  to  repay,  §  3040. 

Priority  of  lien,  §  2897, 

Value  in  marine  insurance  where  hypothecation  by,  §  2736. 

RESTAURANT. 

All  citizens  have  equal  rights  in,  §  51. 

Denial  of  equal  rights,  inciting,  punishment  of,  §§  50,  52. 

Denial  of  equal   rights,   punishment.  §  52. 

RESTORATION. 

Lien  extinguished  by,  §  2913. 

Necessary  on  rescission  of  contract,  §  1691. 

Of  deposit,  terminates  duties  of  depositary,  §  1847. 

Of  thing  found,  §  1871. 

Of  thing  wrongfully  obtained,  §§  1712,  1713. 

Rescission,    restoration    on,  §  1712. 

RESTRAINT. 

Alienation,  of,  when  void,  §§  711,  716.     See  xVlienatiou. 

Civ.  Code — 78  [ 


1234  INDEX. 

RESTRAINT.     (Continued.) 

Marriage,  of,  when  void,  §§  710,  1676. 
Protection  from  bodily,  §  43. 
Redemption  from  lien,  of  right  of,  §  2889. 

RESTRAINT  OF  TRADE. 

Contracts  in,  §§  1673-1675. 

On  dissolution  of  partnership,  §  1675.  ' 

On  sale  of  good-will,  §  1674. 

RESULTING  TRUSTS.     See  Trusts. 

RETALIATORY  CLAUSE. 

Foreign  insurance  corporation,  in  case  of,  §  453i. 

RETROACTIVE. 

Code  is  not,  §  3. 

Code  is  not,  as  to  wills,  §  1375. 

Corporations,  legislature  may  repeal  or  amend  laws  relating  to,  §  384. 

REVERSION.     See  Remainders. 
Estate  in,  defined,  §  768. 

Grant  of,  effectual  without  attornment  of  tenant,  §  1111. 
Grant  of,  right  of  tenant  paying  before  notice,  §  1111. 
Of  land  granted  to  corporations,  §  477. 
Owner  may  sue  for  injury  to  inheritance,  §  826. 

Remedies  of  reversioner  for  rent,  non-performance,  waste,  or  forfeit- 
ure, §  821. 
Reversioners,  remedies  of  for  waste,  §  826. 

REVISION  OF  CONTRACT.     See  Reformation. 

REVOCATION.     See  Contract,  III;   Wills,  XII. 
Condonation  of,  §  121. 
Consent  to  separation  subject  to, §  101. 
Gift  in  view  of  death,  of,  §§  1148,  1151. 
Gift,  not  revocable,  §  1148. 
Guaranty,  of  continuing,  §  2815. 
Power  of  attorney,  of,  §  1216. 
Power  of,  when  deemed  executed,  §§  1229,  1230. 
Proposal  to  contract,  of,  §  1586. 
Trust,  of,  §  2280. 

REWARD. 

Finder  of  lost  property  not  notifying  owner  not  entitled  to,  §  1865. 
Finder  of  property  entitled  to  what,  §  1867. 

RIGHT  OF  WAY. 

In  general,  §§  801,  802. 
Selection  by  railroad,  §  478. 
Street-railway,  of,  restrictions  on,  §  498. 
Telegraph  corporations,  of,  §  536. 

RIGHT  TO  CONVEY. 

Damages  for  breach  of  covenant  of,  §  3304. 

RIGHTS.     See  Civil  Rights;  Personal  Rights. 

RIOT. 

Deposit  in  case  of,  duty  of  depositary,  §§  1815,  1816. 

RIVER.     See  Waters. 


INDEX.  1235 

ROAD.     See  Highways;   Wagon-road   Corporation. 
Boundary,  road  as,  §  831. 
Assignment   of,   provision   relating  to,  §  955. 

BUIiES.  See  Passenger  Carriers;  Kailroad  Corporations;  Religious, 
Social  and  Benevolent  Corporations;  Street  Railway  Corpora- 
tions. 


SAFE  DEPOSIT. 

Right  of  bank  to  conduct.     Appendix,  tit.  "Banking,"  §  30. 

SAILOR.     See  Shipping. 

SALE.     See  Transfer. 

Agreement  for,  is  what,  §  1726. 

Agreement  for,  what  may  be  subject  to,  §  1730. 

Agreement  to  buy,  definition  of,  §  1728. 

Agreement  to  sell  and  buy,  defined,  §  1729. 

Agreement  to  sell,  definition  of,  §  1727. 

Auction,  auctioneer's  memorandum,  effect  and  sufiiciency  of,  §■§  1624, 

1798. 
Auction,  bid,  right  to  withdraw,  §  1794. 
Auction,  by-bidding,  effect  of,  §  1797. 
Auction,  complete  when,  §  1793. 
Auction,  defined,  §  1792. 
Auction,  memorandum  of  auctioneer,  effect  and  sufficiefccy  of,  §§  1624, 

1798. 
Auction,  withdrawal  of  bid,  §  1794. 

Auctions,  without  reserve,  bids  by  seller  or  agent  void,  §  1796. 
Auctions,  without  reserve,  rights  of  highest  bidder,  §  1796. 
Auction,  written  conditions  not  alterable  by  parol,  §  1795. 
Baggage,  of,  by  innkeeper  for  storage,  §  1862.     See  Innkeepers. 
Bill  of  sale,  grant  includes,  §  1053. 

Bona  fide  purchaser  from  one  in  possession,  title  of,  §  1142, 
Breach  of,  damages  for,  §§  3353-3355. 
Buyer  acquires  better  title  than  seller,  when,  §  1142. 
Buyer  must  take  away  thing  within  reasonable  time,  §  1784. 
Buyer's  direction  as  to  sending  thing  sold,  seller  must  obey,  §  1757. 
Buyer's  directions  as  to  sending  things  sold,  seller  following  is  not 

liable,  §  1757. 
Cargo,  master's  power  to  sell,  §  2379. 
Carrier's  sale  of  perishables  for  freightage,  §  2204. 
Complete,  when,  §  1140. 
Consignee  defined,  §  2110. 
Consignment.     See  Consignment;  Factor. 
Consignor  defined,  §  2110. 
Damages  for  breach  of  agreement  to  accept  and  pay  for  personalty 

sold,  §§  3310,  3311. 
Damages  for  breach   of  agreement  to  deliver,  §  3309. 
Damages  for  breach  of  agreement  to  sell,  §  3308. 
Damages  for  breach    of   contract   of,  value   estimated   how,  §§  3353- 

3355. 
Damages  for  breach   of   warranty   of  quality,  §  3313. 
Damages  for  breach    of    warranty    of    quality    for    special    purpose, 

§  3314. 
Damages  for  breach  of  warranty  of  title,  §  3312. 
Damages,  value  to  buyer,  how  estimated,  §  3354. 
Damages,  value  to  seller,  how  estimated,  §  3353. 


1236  INDEX. 

SALE.     (Continued.) 

Defined,  §  1721. 

Definition  of  agreement  to  buy,  §  1728. 

Delivery,  directions  of  buyer  as  to,  to  be  followed,  §  1757. 

Delivery,  expense  of  transportation,  §  1755. 

Delivery,  notice  of  election  as  to,  §  1756. 

Delivery  on  demand,  §  1753. 

Delivery,  option  as  to,  time  for  exercise  of,  and  waiver  of  right, 
§  1756. 

Delivery,  place  of,  §§  1754,  1755. 

Delivery,  property  to  be  put  in  condition  for,  §  1753. 

Delivery,  risk  of,  §  1757. 

Delivery,  seller  a  depositary  without  hire,  before,  §  1748. 

Delivery,  seller  must  put  in  condition  for,  in  reasonable  time,  §  1753. 

Delivery  to  be  made  within  reasonable  time,  §  1753. 

Delivery,  void  without,  §  3440. 

Delivery  within  reasonable  hours,  §  1758. 

Depositary  without  hire,  seller  is  after  sale  and  before  delivery, 
§  1748. 

Deposits,  of  perishable,  §  1837. 

Duties  of  seller  after  sale  and  before  delivery,  §  1748. 

Election  as  to  delivery,  notice  of,  §  1756. 

Exchange  in  general,  §§  1804-1807. 

Exchange,  loan  for,  §§  1902-1906. 

Exchange.     See  Exchange. 

Executory#contract   of,  title  passes  when,  §  1141. 

Existence,  property  not  in,  may  be  subject  of,  §  1730. 

Existence,  warranty  on  sale  of  property  not  in,  §  1768. 

Expenses  of  transportation,  who  to  bear,  §  1755. 

Factor  by,  for  reimbursement,  §  2027. 

Five  da^'s'  notice  of  sale  of  stock  in  trade,  §  3440. 

Form  of  contract,  §  1739. 

Found   thing,   of,  §§  1869,   1870. 

Frauds,  statute  of,  §§  1624,  1739,  1740. 

Fraudulent.     See   Fraudulent   Conveyance. 

Grant.     See  Grant. 

Inspect  goods,  right  to,  §  1785. 

Inspection,  rescission  for  refusing  right  of,  §  1785. 

Lien  extinguished  by,  §  2910. 

Lien  for  price,  enforcing  on  failure  to  pay,  §  1749. 

Lien  of  seller,  §  3049. 

Lien  of  seller,  how  enforced,  §  3049. 

Lien  of  seller  is  dependent  upon  possession,  §  3049. 

Manufacture,  contract  to,  need  not  be  written,  §  1740. 

Manufacture  for  particular  purpose,  warranty  on  contract  of,  §  1768. 

Misrepresentation  of  kind  of  labor  employed  in  producing  goods,  pun- 
ishment of,  §  349a. 

Notice  of  election  as  to  delivery,  §  1756. 

Notice  of  sale  of  stock  in  trade,  §  3440. 

Option  as  to  delivery,  time  for  exercise  of,  and  waiver  of  right. 
§  1756. 

Payment,  failure  of,  remedies  of  seller,  §  1749. 

Payment  on  delivery,  §  1784. 

Perishable  deposits,  sale  of,  §  1837. 

Place  of,  where  not  in  existence  at  sale,  §  1754. 

Price,  when  to  be  paid,  §  1784. 

Property  not  in  existence  maj^  be  subject  of,  §  1730. 

Property  not  in  existence,  warranty  on  sale  of,  §  1768. 


INDEX.  1237 

SALE.      (Continued.) 

Eesale,  when  may  be  had,  §  1749. 

Rescinding  for  non-payment  of  price,  §  lUSl. 

Rescission  for  breach  of  warranty,  §  1786. 

Risk  of  delivery,  §  1757. 

Sample,  warranty  on  sale  by,  §  1766. 

Sending  things  sold,  seller  must  obey  buyer's  directions,  §  1757. 

Sending  things  sold,  seller  obeying  buyer's  directions  not  liable,  §  1757. 

Sending  things   sold,  seller  using  reasonable  care,   goods   at  risk   of 

buyer,  §  1757. 
Separation  not  necessary  to  passing  of  title,  when,  §  1140. 
Ship,  master's  power  to  sell,  §  2378. 
Ship,  transfer  of,  how  made,  §  1135. 
Statute  of  frauds,  sales  within,  §§  1624,  1739,  1740.     See  Statute  of 

Frauds. 
Stock,  for  delinquent  assessments,  §  341. 
Stoppage  in  transit,  effected  how,  §  3079. 
Stoppage  in  transit,  effect  of,  §  3080. 

Stoppage  in  transit,  insolvency  of  consignee  is  what,  §  3077. 
Stoppage  in  transit,   transit   ends   when,  §  3078. 
Stoppage  in  transit,  when   proper,  §  3076. 
Storage  property,  of, §  1857. 
Subject  of,  what  may  be,  §  1730. 
Subject  of,  what  to  be,  §  1722. 

Title,  damages  for  breach  of  warranty  of,  §  3312. 
Title  of  bona  fide  purchaser  from  one  in  possession,  §  1142. 
Title  passes  when,  §  1140. 

Title  passes  when,  in  executory  contract,  §  1141. 
Title,  separation  not  necessary  to  passing  of,  when,  §  1140. 
Title,  when  buyer  acquires  better  than  seller  had,  §  1142. 
To  enforce  lien  on  property,  §  3052. 
Transfer  by,  code  provisions  governing,  §  1136. 
Transfer.     See  Transfer. 

Transportation,  expenses  of,  who  to  bear,  §  1755. 
Transportation,  risks  and  expenses  of,  §  1755. 
Transportation,  risks  of,  §  1757. 
Value  to  buyer,  how  estimated,  §  3354. 
Value  to  seller,  how  estimated,  §  3353. 
Void  if  no  delivery,  §  3440. 
Warranties  in.     See  Warranty. 

Warranty,  agreement  to  sell  does  not  imply,  §  1764. 
Warranty,  breach  of,  right  of  rescission,  §  1786. 
Warranty,  breach  of,  rights  on,  §  1786. 
Warranty  by  agent,  §§  2323,  2324. 

Warranty  by  manufacturer  against  latent  defects,  §  1769. 
Warranty,  defined,  §  1763. 

Warranty,  general,  what  defects  covered  by  and  what  not,  §  1778. 
Warranty,  implied,  code  prescribes  what  warranties  are,  §  1764. 
Warranty^  inspection,  right  of,  on  sale  with,  §  1785. 
Warranty,  not  implied  in  contract  of  sale  or  agreement  to  sell,  §  1764. 
Warranty  of  merchandise  not  existing,  §  1768. 
Warranty  of  money  on  exchange,  §  1804. 
Warranty  of  provisions  for  domestic  use,  §  1775. 
Warranty  of  quality,  damages  for  breach  of,  §  3313. 
Warranty  of  quality    for    special    purpose,    damages    for    breach    of, 

§3314. 
Warranty  of  thing   manufactured   for   special   purpose,  §  1770. 
Warranty  of  trade-mark  on  thing  sold,  §§  1772,  1773, 


]238  INDEX. 

SALE.     (Contiuued.) 

Warranty  on  judicial   sale,  §  1777. 

Warranty  on  sale  by  sample,  §  1766. 

Warranty  on  sale  of  good-will,  §  1776. 

Warranty  on  sale  of  thing  inaccessible  to  buyer,  §  1771. 

Warranty  on  sale  of  written  instrument,  §  1774. 

W^arranty,  title,  seller  warrants  that  he  has,  §  1765. 

Warranty   when   seller   knows   buyer   relies   on   his   statements,   etc., 

§  1767. 
What  to  be  subject  of,  §§  1722,  1730. 
Wines,  of,  delivery  not  necessary,  §  3440. 
Wines,  of,  recording,  when  not  necessary,  §  3440. 
Wines,  of,  to  be  in  writing,  §  3440. 
Writing,  contract,  when  to  be  in,  §§  1624,  1739,  1740. 

SALVAGE. 

Cost  of,  payable  through  general  average  contribution,  §  2079. 

In  general,  §  2079. 

Lien  for,  §  2079. 

Priority  of  lien  for,  §  3028. 

Seaman's  abandonment  of  right  to,  void,  §  2052. 

Seamen's  wages,  deduction  for  salvage  in  case  of  capture,  §  2060. 

Who  entitled  to,  §§  2079,  2725. 

Who  not  entitled  to,  §  2079. 

SAMPLE. 

Sales  by,  warranty  on,  §  1766. 

SAN  FRANCISCO. 

License  tax  on  street-cars  in,  §  508. 

SANITY.     See  Insane  Persons. 

SATISFACTION.     See  Accord  and  Satisfaction. 

Foreign  executor  or  guardian,  satisfaction  of  mortgage  by,  §  2939%. 

Judgment  against  corporations,  of,  §  388. 

Judgment  against  homestead  of,  §  1241. 

Legacies  and  gifts,  of,  §  1367. 

Penalty  for  refusing,  of  mortgage,  §  2941. 

Eecorded  mortgage,  of,  §§  2938,  2941. 

What  operates  as,  §§  1523,  1524. 

SATURDAY.     See  Holidays. 

SAVINGS  AND  LOAN  CORPORATIONS.     See  Banks  and  Banking,  II; 

Building  and  Loan  Corporations.  , 

Banking  act,  provisions  of  relating  to.     See  Banks  and  Banking,  II. 

Bonds,    investment   in,  §  574. 

Bonds,  what  only  may  purchase,  §  574. 

By-laws  providing  for    disposal  of  reserve  fund  on  dissolution,  §  577. 

By-laws,  providing  for  disposition   of  excess  in  reserve  fund,  §  577. 

By-laws  providing  for  equality  between  depositors  and  stockholders 
who  are  depositors,  §  572.     Appendix,  tit.  "Banking,"  §§  20,  21. 

By-laws  provision  as  to  time  and  condition  of  repayment  to  depos- 
itors, §  577. 

Capital,  amount  paid  up,  publication  of,  what  to  show,  §  583a. 

Capital,  amount  to  be  paid  up.  §  580. 

Capital  stock,  all  to  be  subscribed  before  certificate  issued,  §  580, 

Capital  stock,  amount  due  on,  when  to  be  paid  in,  §  580, 

Capital  stock,  amount  of  required,  §  580. 


INDEX.  1239 

SAVINGS  AND  LOAN  CORPORATIONS.      (Contiiuied.) 
Capital  stock,  amount  to  be  paid  on,  §  580. 
Capital  stock  and  assets,   security   for   depositors   and   stockholders, 

§573. 
Capital  stock,  and  rights  and  privileges  thereof,  defining,  §  572. 
Capital  stock,  certificates  of  ownership  of,  issuing,  §  572. 
Capital  stock,  obligations  to  be  imposed  on,  defining,  §  572. 
Capital  stock,  publication    of,    penalty    for    not    obeying    statute, 

§583a. 
Certificate,  what  to  appear  before  issuance  of  §  580. 
Certificates  of  deposit,  general,  §  576. 
Certificates  of  deposit,  pavable  to  transferee  or  legal  representative, 

§  576. 
Certificates  of  deposit,  special,  §  576. 
Certificates  of  dej^osit,  transferability,  §  576. 
"Create  debts"  defined,  §  579. 
"Create  debts,"  what  transactions  do  not,  §  579. 
Debts  against  directors,  cannot  create,  §  573. 
Depositors,  capital  stock  and  assets  are  security  for,  §  573. 
Depositors,  equality    between,    and    stockholder    who    is    depositor, 

§  573.     Appendix,  tit.  "Banking,"  §§  20,  21. 
Depositors,  excessive  calls  by,  new  loans  or  investments  not  to  be 

made,  §  577. 
Depositors    have    prioritv    over    stockholders,  §  573.     Appendix,    tit. 

"Banking,"  §§  20,  21." 
Depositors,  time  and  conditions  of  repayment,  §  577. 
Deposits,  unclaimed.     See   post,   this   subject. 
Director,  oflQce  becomes  vacant,  when,  §  578. 
Directors  cannot  create  debts  against,  §  578. 
Directors,  prohibitions  on,  §  578. 
Dissolution,-  disposal  of  reserve  fund  on,  §  577. 
Dividends,  §§  573,  583. 

Dividends  to  be  made  only  from  surplus  profits,  §  573. 
Enumeration  of  powers,  §  .571. 

Felony,  consenting  to  loan  on  mining  stock,  §  581. 
Felony,  officer  making  illegal  loans  or  investments,  guilty  of,  §  581. 
Funds,  in  what  property  may  be  invested,  §  574. 
Infants  may  deposit  and  draw  dividends,  §  575. 
Infants  may   own   stock,  §  575. 

Investments,  in   what   property   may   be   made,  §  574. 
Investments  not  to  be  made  when  call  by  depositors  excessive,  §  577. 
Investments,  advertisements   that   bonds   are   legal   investments   for, 

Appendix,   tit.   "Banking/'  §  61. 
Investments,  regulations   governing,   Appendix,   tit.   "Banking,"  §  61. 
Investments,  what  property  may  purchase,  hold  or  convey.     Appen- 
dix,   tit.    "Banking,"  §  61. 
Investments,  investigation    of    bonds    by    superintendent    of    banks. 

Appendix,  tit.  "Banking,"  §  61a. 
Loans  by.     See  Banks  and  Banking,  II. 
Liability,  none  to  be  contracted  except  for  deposits,  §  573. 
Limitation  on  powers  of  officers,  §  578. 
Loans,  how  and  to  whom  made,  §  571. 
Loans,  limitation  on  time  of,  §  571. 

Loans  not  to  be  made  on  mining  shares  or  stocks,  §  581. 
Loans  not  to  be  made  when  calls  by  depositors  excessive,  §  577. 
Loans  not  to  exceed  sixty  per  cent  of  market  value  of  realty,  §  581. 
Loans  on  mining  stock,  officer  consenting  to,  guilty  of  felony,  §  581, 
Loans,  on  what  property  may  be  made,  §  571. 
Loans^  sixty  per  cent  limit  does  not  apply  when,  §  581, 


1240  INDEX. 

SAVINGS  AND  LOAN  CORPORATIONS.      (Continued.) 

Lot  and  building,  may  purchase,  §  574. 

Manager  consenting  to  loan  on  mining  stocks,  guilty  of  felony,  §  581. 

Married  women  may  deposit   and   draw   dividends,  §  575. 

Married  women  may  hold  stock,  §  575. 

May  loan  money,  and  on  what  terms,  how,  to  whom,  and  how  long, 
§571. 

Mining  shares,  money  not  to  be  loaned  on,  §  581. 

Names  of  persons  in  unincorporated  bank,  §  582. 

Officers,  prohibitions  on,  §  578. 

Office,  when  acts  of  officer  vacate,  §  578. 

Powers,  enumeration  of,  §  571. 

President  consenting  to  loan  on  mining  stock,  guilty  of  felony,  §  581. 

Prioritv  of  depositors  over  stockholders,  §  573.  Appendix,  tit.  "Bank- 
ing," §§  20,  21. 

Property  of,  how  disposed  of,  §  5i4. 

Property,  personal,  what  may  purchase  or  sell,  §  574. 

Property,  real  estate  to  be  sold  within  ten  years,  §  574. 

Property,  restrictions  on  purchasing.  §  574. 

Property  which  may  not  be  owned  by,  §  574. 

Repayment  to  depositors,  time  and  condition  of,  §  577. 

Eeserve  fund,  creating  in  banks  without  capital  stock,  §  577. 

Reserve  fund,  disposal   of,   on   dissolution,  §  577. 

Reserve  fund,  excess  over  $100,000,  disposition  of,  §  577. 

Eeserve  fund  for  payment  of  losse's,  §  577. 

Stockholders,  capital  stock  and  assets  are  security  for,  §  573. 

Stockholders,  depositors  have  jirioritv  over,  §  573.  Appendix,  tit. 
'•Banking,"  §§  20.  21. 

Stockholders,  infants  or  married  women  may  be,  §  575. 

Stockholder  who  is  depositor,  equalitv  between  and  depositor,  §  573. 
Appendix,  tit.  "Banking."  §§  20,  21. 

Surplus  and  reserve  fund,  conversion  into  capital  stock,  §  583. 

Surplus  and  reserve  fund,  creation  of,  §  583. 

Surplus  and  reserve  fund,  restoration  of  after  conversion  into  cap- 
ital stock, §  583. 

Transferable  certificates  of  deposit,  issuing,  §  576. 

Unclaimed  deposits,  acts  relating  to,  §  5S3b,  Legislation. 

Unclaimed  deposits,  penalty   for   failure   to   publish,  §  5S3b. 

Unclaimed  deposits,  publishing  statement  of,  §  583b. 

Unclaimed  deposits,  statement  of,  bank  commissioners  to  incorporate 
in   reports,  §  583b. 

SCHOOLS.     See  Colleges  and  Seminaries  of  Learning. 

Holidays,  commemorative  exercises  on,  §  7. 

Holidays,  power  of  shool  trustees  or  boards  of  education  to  declare, 

§7. 

Holidays,  schools  to  be  closed  oh  what,  §  7. 

Holidays,  schools  to  hold  sessions  on  what,  §  7-. 

Holidays,  school  directors  may  declare,  §  7. 

SCIENTIFIC  CORPORATIONS. 

Xo  cumulative  votinii'  unless  by-laws  provide,  §  3(r7. 
Power  to  take  by  will,  §  1275. 

SEA. 

Carrier  not  liable  for  damages  caused  bv  perils  of.  §  2197. 
Perils  of,  defined,  §  2199. 

SEAL. 

Affixed,  how,  §  1628. 


Index.  1241 

SEAL.     (Continued.) 

Distinction  between  sealed  and  unsealed  contracts  abolished,  §  1629. 
When  officer  must  affix  to  acknowledgment,  §  1193. 

SEAMEN. 

Are  who,  §  2049. 
Cannot  ship  goods,  §  2064. 
•  Certificate  of  exertion  to  save  cargo,  etc.,  effect  of,  §  2059. 
Contract  to  abandon  rights,  void,  §  2053. 
Defined,  §  2049. 

Discharge  of,  right  of,  and  grounds  for,  §  2050. 
Driven  from  ship  by  cruelty,  rights  of,  §  2057. 
Engaged   and   discharged,   how,  §  2050. 
Laws  of  Congress  govern,  §  2066. 
Lien,  have,  §  3056. 

Lien  is  independent  of  possession,  §  3056. 
Lien  of,  priority  of,  §  3056. 
Maintenance  of,  during  sickness,  §  2061. 
Master,  power  of  to  confine  and  punish,  §  2037. 
Master's   power   over   seamen,  §  2037. 
Not  bound  to  go  in  unseaworthy  vessel,  §  2051. 
Nuncupative  will  of  seaman,  §  1289. 
Provisions,   right  to,  when  begins,  §  2055. 
Eights  where  voyage  broken  up,  §  2056. 
Salvage,   seamen's   waiver   to   right   in,   void,  §  2052. 
Seaworthiness.     See  Seaworthiness. 
Special  contract  with,  validity,  §  2053. 
Wages  begin  when,  §  2055. 
Wages  depend  on  freightage,  §  2054. 
Wages,  driven  from  ship  by  cruelty,  right  to,  §  2057. 
Wages,  dying  during  voyage,  §  2062. 
Wages,  forfeited  by  theft  or  tort,  §  2063. 
Wages  forfeited  on  justifiable  discharge,  §  2063. 
Wages     in  ease  of  capture,  §  2060. 
Wages  not  lost  by  agreement,  §  2052. 
Wages  of  disabled  seamen,  §  2060. 
Wages  on  wrongful  discharge,  §§  2057,  2060. 
Wages,  priority  of  lien  for,  §  3028. 

Wages,  remedies  and  lien  for  cannot  be   contracted  away,  §  2052. 
Wages,  right  to  when  begins,  §  2055. 
Wages,  where   lost   by   wreck,    and   seaman   exerts   himself   to    save 

cargo,  §§  2058,  2059. 
Wages,  where  vessed  wrecked,  certificate  by  master  of  effort  to  save 

cargo,  etc.,  presumptive  of  fact,  §  2059. 
Wages  where  voyage  broken  up,  §  2056. 

SEAECHER  OF  RECORD. 

What  property  of,  may  be  mortgaged,  §  2955. 

SEAWORTHINESS. 

At  what  time  must  exist,  under  insurance,  §  2683. 
Defined,  §  2682. 

Different   degrees  of,  at  different   stages   of   voyage,  §  2685. 
For  purpose   of  insuring  cargo,  §  2687. 
Implied   warranty   of,  in   insurance,  §  2681. 
Mate  need  not  ship  in  unseaworthy  vessel,  §  2051. 
Seaman  need  not  ship  in  unseaworthy  vessel,  §  2051. 
Seaman  not  bound  to  sail  when  reasonable  doubt  as  to,  §  2051. 
Unseaworthiness   during   voyage,   delay   in    repairing   exonerates   in- 
surer, when,  §  2686. 


1242  INDEX. 

SEAWORTHINESS.      (Continued.) 

Unseaworthy  as  to  insurance  on  cargo  where  seaworthy  as  to  insur- 
ance on  ship,  §  2687. 
What  required  to  constitute,  §  2684. 
Where  cargo  is  to  be  transhipped,  §  2683. 

SECRETARY  OF  STATE. 

Articles   of  incorporation,   duties  in   relation   to.     See   Corporati6ns, 

IV. 
Copy    of    decree    changing    name    of    corporation    to    be    filed    with, 

§  300a. 
Duty  where  foreign  corporation  fails  to  file  articles,  §  410. 
Prerequisites  before  issuing  certificate   of  incorporation,  §  295. 
Proceedings  for  continuance  of  corporations,  §  287. 
Summons  in  suit  against  foreign  corporation  may  be  served  on,  when 

§  405. 
When  must  issue  certificate  of  incorporation,  §  296. 

SECRET  SOCIETIES. 

Not  governed  by  laws  relating  to  insurance  corporations,  §  451. 
Not  governed  by  laws  relating  to    mutual    assessment    corporations, 

§  453p. 
Not   insurance    companies,  §  451. 

SECTION. 

Of  code,    meaning  of,  §  14. 

SECURITY.     See  Indemnity;  Suretyship. 

By  assignee,  for  benefit  of  creditors,  §  3467. 

By  way  of  bottomry,  §  3017.     See  Bottomry. 

By  way  of  lien,  §  2872.     See  Liens. 

By  way  of  pledge.     See  Pledge. 

By  way  of  respondentia,  §  3036.     See  Kespondentia. 

Contracts  of,  when  called  bail,  §  2780. 

For  alimony,  §  140. 

For  third  person,  pledge  as,  §  2992. 

Held  by  creditor,  or  cosurety,  surety  entitled  to  benefit  of,  §  2849. 

Held  by  surety,  creditor  entitled  to  benefit  of,  §  2854. 

Indorser  having,  not  entitled  to  notice  of  dishonor,  §  3157. 

Lien   as   security   for   performance    of   obligation   not   in    existence, 

§  2884. 
Of  mortgagee  not  to  be  impaired  by  person  bound,  §  2929. 
Power  to  sell  in  mortgage  deemed  part  of,  §  858. 

SEDUCTION. 

Damages  for.  §  3340. 

In  general,  §  49. 

Wife,  daughter,  sister,  or  servant  forbidden,  §  49. 

SEISIN. 

Damages  for  breach  of  covenant  of,  §  3304. 

Form  of  covenant  of,  §  1734. 

Included  in  agreement  to  give  usual  covenants,  §  1733. 

SELF-DEFENSE. 

Right  of,  §  43. 

SEMINARY.     See   Colleges  and  Seminaries   of  Learning. 

SEPARATE  PROPERTY.     See  Divorce;   Husband   and  Wife;   Property. 


INDEX.  1243 

SEPARATION. 

Absence,  proper  in  itself,  becomes  desertion,  when,  §  100. 

Agreement  for.     See  Husband  and  Wife. 

By  consent,  becomes  desertion,  when,  §  100. 

By  consent,  not  desertion,  §  99. 

Consent  to,   revocable,  §  101. 

Custody  of  child  in  case  of,  §  214. 

Domicile  in  case  of  separation  of  husband  and  wife,  §  129. 

Husband  and  wife  may  agree  to  immediate,  §  159. 

Mutual  consent  sufficient  consideration,  §  160. 

SERVANT.     See  Master  and  Servant. 

SERVICES.     See  Master  and  Servant;  Wages. 

Child's  parent  may  relinquish,  §  211. 

Child's,  who  entitled  to,  §  197. 

Contract  for,  cannot  be  specifically  enforced,  §  3390. 

Contract  for,  limited  to  two  years,  §  1980. 

Employee  in  gratuitous  duties,  ddties  of,  §  1975. 

Gratuitous  carriers,  duties  of,  §§  2089,  2090,  2096,  2114. 

Gratuitous,  when  relinquished,  §  1976. 

Lien  for  services  is  dependent  on  possession,  §  3051. 

Lieu  for  services,  sale  to  be  at  auction,  §  3052. 

Lien  for  services,  sale  at  auction,  notice  how  given,  §  3052. 

Lien  for  services,  sale  of  property,  distribution  of  proceeds,  §  3052. 

Lien  for  services,  sale,  property  may  be  sold  after  two  months, 
§  3052. 

Lien,  one  performing  services  about  personalty,  has,  §§  3051,  3052. 

Lien,  person  performing  service  may  retain  possession  until  pay- 
ment, §  3052. 

Limited  to  two  years,  contract  for  is,  §  1980. 

Loggers  have*lien,  §  3065. 

Loggers'  lien,  act  giving  lien  to  laborers  in  logging  camp,  §  3065, 
Legislation. 

Loggers'  lien,  action  on,  attachment  of  logs,  §  3065. 

Loggers'  lien,  action  to  be  brought  within  what  time,  §  3065. 

Loggers'  lien,  duration  of,  §  3065. 

Loggers'  lien,  priority  of,  §  3065. 

Of  carrier,  other  than  carriage,  law  governing,  §  2203. 

Of  depositary,  duties  and  liabilities,  where  prescribed,  §  1839. 

Of  illegitimate  unmarried  minor,  mother  entitled  to,  §  200. 

Of  legitimate  unmarried  minor,  father  entitled  to,  §  197. 

Partner  not  entitled  to  compensation  for  services,  §  2413. 

Thrashing-machines,  act  giving  lien  to  laborers,  on,  §  3061,  Legislation. 

Thrashing-machine,  laborer  on,  has  lien,  §  3061. 

Thrashing-machine,  lien  of  laborer  on,  duration  of,  §  3061. 

Thrashing-machines,  liens  of  laborers  on,  enforcement  of,  §  3061. 

Thrashing-machines,  proceedings  where  several  laborers  have  liens, 
§  3061. 

Veterinary  hospital  proprietor,  lien  of,  is  dependent  on  possession, 
§3051. 

Veterinary  hospital  proprietor,  lien,  sale  for,  manner  of,  and  dis- 
position of  proceeds,  §  3052. 

Veterinary  hospital  proprietors,  lien,  have,  §  3051. 

Veterinary  surgeon,  has  lien  for,  §  3051. 

Veterinary  surgeon,  lien  for,  sale  for,  manner  of,  and  disposition  of 
proceeds,  §  3052. 

Veterinary  surgeon,  lien  of,  is  dependent  on   possession,  §  3051. 

When  apprentice  may  recover  for,  §  276. 


1244  INDEX. 

SERVICES.      (Continued.) 

Without  emplo^-ment,  comi^ensation  and  expenses,  §  207S. 
Without  employment,  duties  in  case  of,  §  2078. 

SERVITUDE.     See  Easement. 

SETTLEMENT. 

Marriage.     See  Marriage. 

SEWER  FARMS. 

Owned  by  city,  limit  of  lease  of  or  of  sewage  deposited  on,  §  718. 

SHEEP.     See  Animals. 

Killing  by  dogs,  §  3341. 

SHELLEY'S  CASE. 

Eule  in,  abolished,  §  779. 

SHERIFF.     See  Assignment  for  Creditors. 
Lien  of,  for  levj'ing  writ,  §  3057. 

SHIP-MASTER.     See  Shipping. 

SHIPPING. 

Abandonment,  duties,  and  liabilities  of  master,  §  2041. 

Abandonment,  duty  of  master  to  save  money  and  valuables,  §  2041. 

Abandonment,  liability  of  master  for  articles  lost,  §  2041. 

Abandonment,  master,  authority  of,  to  abandon,  §  2040. 

Abandonment  terminates  master's  authority,  §  2381. 

Apportionment  of  damages  from  collision,  §  973. 

Appurtenances  of,  §  961. 

Averages,  manager's  powers  to  adjust,  §  2388. 

Bottomry,  insurable  interest  reduced  by,  §  2660.       , 

Bottomry.     See  Bottomrj^ 

Capture  of  ship,  power  of  master  to  ransom,  §§  2380,  2381. 

Capture  of  ship,  wages,  §  2060. 

Cargo,  hypothecation  of,  on  respondentia.     See  Respondentia. 

Cargo,  master  agent  of  owners,  §  2375. 

Cargo,  master,  authority  of,  over,  §  2375. 

Cargo,  master  may  engage,  §  2376. 

Cargo,  master's  authority  over,  ceases  on  abandonment,  §  2381. 

Cargo,  master's  power  to  hypothecate,  §§  2375,  2377,  3038. 

Cargo,  master's  power  to  sell,  §§  2375,  2377,  2379. 

Cargo,  sacrifice  for  safety,  §  2148. 

Cargo,  sale  of  by  master,  liability  of  ship  owner,  §  2385. 

Cargo,  sale  of  by  master,  owner's  rights,  §  2385. 

Cargo,  sale  of  perishable  or  damaged,  §  2377. 

Cargo,  ship  manager's  power  as  to,  §§  2388,  2389. 

Cargo,  ship's  manager  may  purchase,  §  2389. 

Charterer,  insurable  interest  of,  §  2665. 

Charterer,  who  may  be,  §  1959. 

Charter-party,  defined,  §  1959. 

Charter-party,  manager  may  enter  into,  §  2388. 

Charter-party,  master  may  enter  into  in  foreign  port,  §  2376. 

Charter-party,  what  may  be  provided  in,  §  1959. 

Charter-party,  what  rights  in  ship  may  be  provided  in,  §  1959. 

Collision,  breach  of  rules  implies  willful  default,  §  972. 

Collision  from  breach  of  rules,  liability,-§  971. 

Collision,  liability  for  loss  from,  §§  971,  973. 

Collision,  loss  apportioned  how,  §  973. 

Collisions,  rules  for  avoiding,  §  970. 


INDEX.  1245 

SHIPPING.     (Continued.) 

Compensation  of  manager,  §  2072. 

Congress,  laws  of  govern  oliicers  and  seamen,  §  2066. 

Co-owners,  disagreement  between,  court  to  determine,  §  964. 

Damages,  breach  of  rules  of  navigation, §  971. 

Damages  from  collision,  apportionment,  §  973. 

Damages  from  collision,  who  liable,  §  973. 

Debts,  when  are  liens  against,  §  3060. 

Defined,  §  960.  \ 

Definition  of  ship,  §  960. 

Delivery  not  necessary  to  validity  of  sale  of  ship,  §  3440. 

Deviation  from  voyage,  §  2117.     See  Insurance,  XV. 

Domestic  navigation  defined,  §  962. 

Domestic   or  foreign   navigation   or   fisheries,   ships   are   engaged   in, 

§962. 
Domestic  ship  is  what,  §  963. 
Enrollment  regulated  by  federal  laws,  §  966. 
Equipments  of,  §  961. 
Fisheries,  or  domestic  or  foreign  navigation,  ships  are  engaged  in, 

§  962. 
Foreign  navigation  defined,  §  962. 
Foreign  ship  is  what,  §  963. 
Freightage,  insurable  interest  in, §§  2661-2663. 
Freightage,  power  of  master  to  hypothecate,  §  2377. 
Freight  and  freightage.     See  Freight  and  Freightage. 
General  average,  §§  2148-2155.     See  General  Average. 
General  average,  contribution  on  property  saved,  §  2079. 
General  average,  insurance  covers  loss  by,  §  2744. 
Hiring  ship,  contract  by  which  done  and  rights  under,  §  1959. 
Hypothecate,  power  of  master  to,  §§  2375,  2377. 
Hypothecation.     See  Bottomry;  Respondentia. 
Impressing  private  stores,  where  ship's  supplies  fail,  §  2039. 
Includes  what,  §  960. 
Insurance,  manager,  power  as  to,  §  2389. 
Insurance.     See  Insurance. 
Interest  on  bottomry  contract,  §  3022. 
Jettison,  §§  2148-2155.     See  Jettison. 
Jurisdiction  where  several  owners  disagree,  §  964. 
Liability  where  owner  commits  possession  and  navigation  to  another, 

§964. 
License  governed  by  federal  statutes,  §  966. 
Liens  against,  priority  of,  §  3028. 
Lien  of  master,  §  3055. 
Liens  against,  debts,  when  are,  §  3060. 
Manager  defined,  §  2070. 
Manager,  duties  of,  §  2071. 
Manager,  general  powers  of  §§  2388,  2389. 
Manager  has  not  what  powers,  §  2389. 
Manager  is  general  agent  of  owners,  §  2070. 
Manager,  limitation  on  powers  of,  §  2389. 
Manager,  powers  as  to  insurance,  §  2389. 

Manager  presumed  to  have  no  compensation,  §  2072.  > 

Manager,  who  is,  §  2070. 
Managing  owner  of  ship  defined,  §  2070. 

Managing  owner  presumed  to  have  no  compensation,  §  2072. 
Master,   abandonment   of   ship,   duty   to   save    money   and   valuables, 

§  2041. 
Master,  abandonment  of  ship,  liability  for  articles  lost,  §  2041. 
Master,  abandonment  of  ship,  power  as  to,  §  2040. 


1246  INDEX. 

SHIPPING.     (Continued.) 

Master,  accounting  by,  where  he  trades  on  his  own  account,  §  2042. 

Master  a  general  agent  for  owner,  §§  2373,  2375. 

Master,  appointed  by  owner,  §  2034. 

Master,  authority  as  agent,  law  governing,  §  2044. 

Master,  authority,  general  agent  of  owner  for  all  matters,  §  2373. 

Master,  authority  terminated  by  abandonment,  §  2381. 

Master,  authority  to  borrow  money,  §  2374. 

Master,  authority  to  contract,  in  general,  §  2376. 

Master,  authority  to  impress  private  stores  where  ship's  supply  fails, 

§  2039. 
Master,  authority  to  make  repairs,  §  2376. 
Master,  authority  to  ransom  ship,  §  2380. 
Master,  care  required  of,  §  2043. 

Master,  cargo,  a  general  agent  for  owners  of,  §  2375. 
Master,  cargo,  authority  as  regards  generally,  §  2375. 
Master,  cargo,  perishable  or  damaged,  sale  of,  §  2377. 
Master,  cargo,  power  to  sell  or  hypothecate,  §§  2375,  2377,  2379. 
Master,  cargo,  sale  of,  by,  liability  of  owner,  §  2385. 
Master,  disability  of,  mate  takes  his  place,  §  2048. 
Master,  duty  of  where  voyage  broken  up,  §  2707. 
Master,  duty  to  reship  where  voyage  broken  up,  §2707. 
Master  has  a  lien,  §  3055. 

Master  holds  during  owner's  pleasure,  §  2034. 
Master's  liability  for  acts  of  persons  employed  on  ship,  §  2383. 
Master,  liability  for  negligence  of  pilot,  §  2384. 
Master,  lien  of  is  not  dependent  on  possession,  §  3055. 
Master  may  be  charterer,  §  1959. 
Master  may  engage  cargo,  §  2376. 
Master  may  engage  passengers,  §  2376. 

Master  may  enter  into  charter-party  in  foreign  port,  §  2376. 
Master  may  impress  private  stores,  when,  §  2039. 
Master  may  hypothecate  freight-money,  when,  §  3021. 
Master  may  hypothecate  ship,  when,  §'§3019,  3020. 
Master  may  procure  supjilies,  §  2376. 
Master  not  to  trade  on  own  account,  §  2042. 
Master,  personal  liability  on  contracts,  §  2382. 
Master,  power  over  passengers,  §  2038. 
Master,  power  over  seamen,  §  2037. 
Master,  power  to  confine  and  punish  seamen,  §  2037. 
Master,  power  to  confine  passengers,  §  2038. 
Master,  power  to  hypothecate  freightage,  §  2377. 
Master,  power  to  sell  ship,  §  2378. 
Master,  respondentia  by,  §  3038. 
Master  to  be  on  board,  when,  §  2035. 
Master  to  take  pilot,  when,  §  2035. 
Mate  cannot  ship  goods,  §  2064. 
Mate  defined,  §  2048. 
Mate,  disabled,  right  to  wages,  §  2060. 
Mate,  discharge,  right  of  and  grounds  for,  §  2050. 
Mate  engaged  and  discharged  how,  §  2050. 
Mate  has  lien  for  wages,  §  3056. 
Mate,  laws  of  Congress  govern,  §  2066. 

Mate,  lien  of,  for  wages,  is  not  dependent  on  possession,  §  3056. 
Mate,  lien  of.  for  wages,  superiority  of.  §  3056. 
Mate,  maintenance  of,  during  sickness,  §  2061. 
Mate  not  bound  to  ship  in  unseaworthy  vessel,  §  2051. 
Mate,  office  of.  on  disability  of  master,  §  2048. 
Mate,  provisions,  right  to  when  commences,  §  2055. 


INDEX.  1247 

SHIPPING.      (Continued.) 

Mate  taking  master's  place  loses  no  rights  as  mate,  §  2048. 

Mate,  wages  begin  when.  §  2055. 

Mate,  wages  forfeited  by  theft  or  tort,  §  2063. 

Mate,  wages  forfeited  on  justifiable   discharge,  §  2063. 

Mate,  wages  where  mate  dies,  §  2062. 

Mate,  wages  where  vessel  captured,  §  2060. 

Mate,  wrongfully  discharged  or  driven  from  ship,  rights  of,  §§  2057, 

2060. 
Meeting  of  sailing  vessels,  rules  for  passing,  §  970. 
Meeting  of  ships,  breach  of  rules  for,  implies  willful  default,  §  972. 
Meeting  of  ships,  rules  for  passing,  §  970. 

Meeting  of  steamers  in  narrow  channels,  rules  for  passing,  §  970. 
Meeting  of  steamers  on  different  courses,  rules  for  crossing,  §  970. 
Meeting  of  steamers,  rules  for  passing,  §  970. 
Mortgage  of,  code  sections  not  applicable  to,  §  2971. 
Mortgage  of  ship,  where  to  be  recorded,  §  2958. 
Narrow  channels,  rules  for  steamers  in,  §  970. 
Navigation,  foreign  and  domestic  defined,  §  962. 
Navigation,  rules  of,  §  970. 

Negligence,  breach  of  rules  implies  willful  default,  §  971. 
Negligence,  breach  of  rules  of  navigation,  liability,  §  971. 
Negligence,  master's  liability  for,  §  2043. 
Negligence  of  employee,  master's  liability  for,  §  2383. 
Neutral  papers,  duty  to  carry,  §  2688. 
Officers,  laws  of  Congress  govern,  §  2066. 
Owner  for  voyage,  and  his  liability,  §  965. 
Owner,  respondentia  by,  §  3037. 
Partners,  whether  ship-owners  are,  §  2396. 
Part  owners,  jurisdiction  of  controversy  between,  §  964. 
Part  owner  may  be  a  charterer,  §  1959. 
Part  owners,  whether  partners,  §  2396. 
Passengers,  master  may  engage,  §  2376. 
Passengers,  master's  power  over,  §  2038. 
Passengers.     See  Passenger  Carriers. 
Perils  of  sea  are  what,  §  2199. 
Perils  of  sea,  liability  for  loss  by,  §  2197. 
Pilotage,  §  2036. 

Pilot,  navigation  of  ship  devolves  upon,  §  2036. 
Pilot's  negligence,  liability  of  owner  for,  §  2384. 
Pilot,  when  master  must  take,  §  2036. 
Hansom  of  ship,  master's  power,  §  2380. 

Eecording  transfer  of  vessels,  governed  by  feudal  laws,  §  1173. 
Eegistry  governed  by  federal  statutes,  §  966. 
Repairs,  master  may  procure,  §  2376. 
Respondentia.     See  Respondentia. 
Rules  for  passing  of  ships  meeting,  §  970. 
Rules  for  passing,  breach  of  implies  willful  default,  §  972. 
Rules  ior  passing,  breach  of,  liability,  §  971. 
Rules  of  navigation,  §  970. 
Sale  of  ship,  delivery  not  necessary,  §  3440. 
Sale  of  ship,  when  master  may  order,  §  2378. 
Salvage,  in  general,  §  2079. 
Salvage.     See  Salvage. 
Seamen.     See  Seamen. 
Seaworthiness  defined,  §  2682. 

Seaworthiness.  See  Insurance,  XV;  Seaworthiness. 
Several  owners,  jurisdiction  on  disagreement,  §  964. 
Ship  defined,  §  960. 


1248  INDEX. 

SHIPPING.      (Continued.) 
Shipping  defined,  §  96U. 

Ships,  foreign  and  domestic,  distinguished,  §  963. 
"Ships"  or  "shipping,"  what  included  in  terms,  §  960. 
Shipwreck,  deposit,  involuntary,  in  case  of,  §  1815. 
Stowage,  §  2117. 

Telegraph  cable,  liability  for  dragging,  §  537. 
Transfer  of  interest  in  ship,  how  made,  §  1135. 
Transfer  of  interest  in  ship,  statute  of  frauds,  §  1135. 
Transfer  of  ships,  recording  of,  governed  by  federal  laws,  §  1173. 
Transfers,  mode  of,  §§  1135,  1176. 

Unseaworthy  ship,  seamen  not  bound  to  go  on,  §  2051. 
Voyage  and  deviation,  insurance,  §§  2692-2697. 
Wharfinger.     See  Warehousemen. 
Wrecks.     See  Wrecks  and  Wrecked  Property. 

SIGNATURE. 

Attorney  in  fact,  by,  how  made,  §  1095. 

Includes  mark,  §  14. 

In  indorsement,  §§  3109,  3110. 

Mark  by,  two  witnesses  necessary,  §  14. 

Of  oflflcer  taking  acknowledgment,  §  1193. 

Subscribing  of  testator's  name  by  another,  manner  of,  §  1278. 

To  will.     See  Wills,  I. 

SIGNS. 

There  may  be  ownership  in.  §  655. 

SINGULAR. 

Includes  plural,  §  14. 

SINKING  FUND. 

To  pay  railroad  bonds,  §  457. 

SKILL.     See  Care. 

Borrower  must  exercise  what,  §  1888. 
Carrier  of  persons  must  use,  §  2100. 
Employee  must  use  all  he  possesses,  §  1984. 
Employee  must  use  reasonable,  §  1983. 
Injury  arising  from  want  of  ordinary,  §  1714. 
Voluntary  depositary  must  use,  §  2078. 

SLANDER. 

Defamation  is  effected  by,  §  44. 

Defined,  §  46. 

Motive  not  inferred  in   certain   privileged  communications,  §  4S. 

Privileged  communications,  what  are,  §  47. 

Eight  to  protection  from,  §  43. 

SOCIAL  ASSOCIATIONS.     See   Religious,   Social,   and  Benevolent   Cor- 
porations. 
And  incorporation  thereof,   §§  593-604. 

SOCIAL  CORPORATIONS.     See  Religious,  Social,  and  Benevolent  Cor- 
porations. 
Articles  of  incorporation,  what  to  set  out,  §  594. 
No  cumulative  voting  unless  by-laws  provide,  §  307. 

SOCIETIES  FOR  PREVENTION  OF  CRUELTY  TO  CHILDREN  AND 

ANIMALS, 
.^id  to  be  given  to  by  magistrates,  police,  sheriffs,  etc.,  §  607c. 
Allowances  to  by  city,  amount  of  and  how  paid,  §  607f. 


INDEX.  '  1249 

SOCIETIES  FOR  PREVENTION  OF  CRUELTY  TO  CHILDREN  AND 

AinMALS.      (Continued.) 
Association  already  formed,  code  applies  to,  §  607d. 
Association  with  name  similar  to  pre-existing  society,  code  does  not 

apply  to,  §  607d. 
Children  may  be  arrested  and  brought  before  court  for  examination, 

.when,  §  607g. 
Children  may  be  taken  from  person  having  custody,  when,  §  607g. 
Children,  proceedings  for  protection  of,  who  may  institute,  §  607g. 
Children  taken  from  custody  of  another,  how  disposed  of,  §  607g. 
Compensation,  monthly  allowance  to,  by  supervisors,  §  607e. 
Complaints  for  cruelty  to  children  or  animals,  §  607b. 
Fines,  penalties  and  forfeitures,  what  inure  to  benefit  of,  §  607e. 
Formation,  majority  of  corporators  to  be  citizens  and  residents  of 

state,  §  607. 
Formation  of,  authorized,  §  607. 
Formation  of,  number  of  corporators,  §  607. 

Humane  officer,  acting  as  without  authority  a  misdemeanor,  §  607f. 
Humane  officers,  appointment,  filing  certified  copy  of  approval  with 

county  clerk,  §  607f. 
Humane  officers,  appointments,  how  made,  §  607f . 
Humane  oflScers,  appointment^  report  of  to  judge  and  duty  of  judge, 

§  607f. 
Humane  officers,  arresting  offender,  showing  badge,  §  607f. 
Humane  officers,  issuing  false  statements  as  to  a  misdemeanor,  §  607f . 
Humane  officers,  number  that  may  be  appointed,  §607f. 
Humane  officers,  oath  of,  §  607f. 
Humane  officers,  powers  of,  §  607f. 
Humane  officers,  qualifications  of,  §  607f. 
Humane  officers,  record  of  bv  county  clerk,  duty  as  to  and  fee  for, 

§  607f. 
Humane  officers,  revocation  of  appointment,  right  of  and  proceedings 

on,  §  607f. 
Humane  officer,  resisting  a  misdemeanor,  §  607f. 
Humane  officer.s,  right  to  carry  weapons,  §  607f. 
Magistrates   and  police   officers   to   aid   corporation   and   its   officers, 

§  607c. 
Pre-existing  corporations,  provisions  of  code  extend  to,  §  607d. 
Proceedings  for  welfare  of  child,  institution  of,  §  607g. 
Property,  limit  upon  amount  that  can  be  held  by,  §  607a. 
Property,  power  to  receive  and  dispose  of,  §  607a. 
Prosecution  of  persons  guilty  of  cruelty,  §  607b. 

SOLDIER. 

Nuncupative  will,  §  1289. 

SOLE  CORPORATIONS.     See  Religious,  Social,  and  Benevolent  Corpora- 
tions. 
Religious  society  may  become,  when,  §  602. 

SPECIAL  PARTNERSHIP. 

Affidavit  as  to  sums  contributed,  §  2481. 
Banking,  cannot  be  formed  for,  §  2-477. 
Business  of,  general-  partners  only  can  do,  §  2489. 
Certificate,  acknowledgment  and  record  of  to  be  filed,  §  2480. 
Certificate,  affidavit  of  publication,  filing  of,  §  2484. 
Certificate,  affidavit  of  jiublication  of,  as  evidence,  §  2484. 
Certificate,  effect  of  not  publishing,  §  2483. 
Civ.  Code — 79 


1250  INDEX. 

SPECIAL  PARTNERSHIP.      (Continued.) 

Certificate,  failure   to   file   and   publish   on   change   in  firm,  becomes 

general,  §  2507. 
Certificates,  false  statements  in,  liability  for,  §  2480. 
Certificate,  manner  of  publication,  §  2483. 
Certificate  of,  to  state  what,  §  2479. 
Certificate  on  renewal  or  continuance  of,  §  2485. 
Certificate,  partners  severally  to  sign,  §  2479. 
Certificate,   recording   where   partHership   does   business   in   different 

counties,  §  2480. 
Certificate,  to  be  published,  §  2483. 

Certificate,  where  new  partner  or  change  in  firm,  §§  2507,  2508. 
Compliance  with  code  necessary  to  formation  of,  §  2482. 
Dissolution,  is  subject  of,  §  2509. 
Dissolution,  manner  of,  §  2509. 
Effect  of  false  statement  in  certificate  of,  §  2480. 
Effect  of  special  partner  withdrawing  capital,  §  2495. 
Estopped  to  question  existence  of,  who  is,  §  2509. 
Formation  of,  §  2477. 

Formation  of,  compliance  with  code  essential,  §  2482. 
Fraudulent  conveyances  by  special,  §  2496. 
General  and  special  partners,  may  consist  of,  §  2478. 
General  partner  may  sue  and  be  sued  alone,  §  2492. 
General  partners  only  can  do  business  of,  §  2489. 
General  partner,  special  partner  when  liable  as,  §  2501. 
General,  special  to  what  extent  is,  §  2424  . 
General,  when  becomes,  §§  2483,  2495,  2507. 
Insolvency,  creditors  preferred  to  special  partner,  §  2491. 
Insolvency,  preferential  assignments  void,  §  2496. 
Insurance,  cannot  be  formed  for  business  of,  §  2477. 
Interest  and  profits  of  special  partner,  §  2494. 

•Judgment  confessed  by  special  partner  void  as  to  creditors,  §  2496. 
Liability  of  one  held  out  as  special  partner,  §  2444. 
Liability  of  ostensible  partner,  §  2444. 
Liability  of  the  special  partners,  §§  2500-2502. 
Lien  by  special  partner,  void  as  against  creditors,  §  2496. 
Losses,  special  partner  need  not  refund  profits  to  meet,  §  2494. 
Name  of  special  partner  not  to  be  used  unless  with  word  "limited," 

§  2510. 
New  partner,  certificate,  filing  and  publishing  in  case  of,  §  2507. 
New  partner,  how  admitted,  §  2508. 
None  without  compliance  with  code,  §  2482. 
Of  what  may  consist,  §  2478. 
Only  the  general  partners  may  act,  §  2489. 
Preference  given  by,  void,  §  2496. 
Preference  to  creditors  over  special  partner,  §  2491. 
Preferential  transfer  by  special,  void  as  to  creditors,  §  2496. 
Profits  and  interest  of  special  partner,  §  2494. 
Purposes  for  which  may  be  formed,  §  2477. 
Renewal  of  certificate  in  case  of,  §  2485. 
Special  and  general  partners,  may  consist  of,  §  2478. 
Special  partner  becomes  general  on  withdrawing  capital,  §  2495. 
Special  partner,  liable  as  general  partner,  when,  §§  2501,  2502. 
Special  partner,  liability  of,  §§  2501,  2502.' 
Special  partner,  loan  by,  to  firm,  §  2491. 

Special  partner  may  advance  money  for  and  take  security,  §  2491. 
Special  partner  may  investigate  affairs  and  advise,  §  2490. 
Special  partner  may  not  withdraw  capital,  §  2493. 
Special  partner,  name  of  not  used,  unless  with  "limited,'"  §  2510. 


INDEX.  1251 

SPECIAL  PARTNERSHIP.      (Continued.) 

Special  partner,  postponed  to  creditor  on  insolvency,  §  2491. 

Special  partner,  power  of,  §§  2490,  2491. 

To  what  extent  a  general  partnership,  §2424. 

What  transfers  void,  §  2496. 

Who  cannot  charge  persons  as  general  partners,  §  2503. 

Who  may  form,  §  2477. 

Who  may  not  question  existence  of,  §  2503. 

Withdrawal  of  capital  by  special  partner,  §§  2493,  2495. 

SPECIFIC  PERFORMANCE. 

Act  or  consent  of  third  person  not  enforceable,  §  3390. 

Act  or  consent  of  wife,  agreement  to  procure  not  enforceable,  §  3390. 

Acts  which  one  cannot  lawfully  perform,  not  enforced,  §  3390. 

Agreement  to  sell  by  one  without  title,  not  enforceable,  §  3394. 

Arbitration,  agreement  to  submit  to,  not  enforced,  §  3390. 

Censent  obtained  by  fraud,  or  concealment,  not  enforced,  §  3391: 

Consent  obtained,  by  mistake  or  surprise,  not  enforced,  §  3391. 

Consent  obtained  by  mistake,  when  enforced,  §  3391. 

Consideration,  inadequate,  contract  not  enforced,  §  3390. 

Contract  signed  by  one  party  only,  of,  §  3388. 

Contracts  that  cannot  be  enforced  specifically,  §§  3390-3392. 

Devisee  or  legatee,  against,  §  1301. 

Distinction  between  real  and  personal  property,  §  3387. 

Enumeration  of  cases,  where  will  be  denied,  §§  3390-3392. 

Forfeiture,  not  granted  to  enforce,  §  3369. 

Liquidation  of  damages  not  a  bar  to,  §  3389. 

Mutuality  of  remedj^  a  prerequisite,  §  3386. 

One  must  be  able  to  give  free  title,  §  3394. 

Parties  against  whom  contract  not  enforced,  §  3390. 

Parties  who  cannot  have,  §  3392. 

Part  performance,  specific  performance  in  case  of,  §  1741. 

Pecuniary  compensation,  when  adequate,  §  3387. 

Penalty,  imposition  of,  not  a  bar,  §  3389. 

Penalty,  not  enforceable  by,  §  3369. 

Performance,  full  and  fair,  necessary,  §  3392. 

Performance,  partial,  when  granted,  §  3392. 

Personal  service,  obligation  to  employ  one  in,  not  enforced,  §  3390. 

Personal  service,  obligation  to  render,  not  enforced,  §  3390. 

Presumption  as  to,  when  breach  can  be  relieved  by  pecuniary  com- 
pensation, §  3387. 

Realty,  of  oral  ■  agreement  for  transfer  of,  on  part  performance, 
§  1741. 

Reformed  contract,  of,  §  3402. 

Relief  against  parties  claiming  under  person  bound  to  perform, 
§  3395. 

Relief  in  damages,  distinction  between  presumptions  in  case  of 
realty  and  personalty,  §  3387. 

Right  to,  generally,  §  3384. 

Specific  real  property,  how  recovered,  §  3375. 

Specific  relief  granted  only  in  cases  specified  in  code,  §  3274. 

Specific   relief.     See  Specific  Relief. 

Title  free  from  reasonable  doubt  necessary,  §  3394. 

Uncertain  agreement  not  enforced,  §  3390. 

When  denied,  §§  3390-3392. 

When  may  be  had,  §§  3366,  3384. 

SPECIFIC  RELIEF.     See  Specific  Performance. 
■     Delivery  of  personalty   to    owner,    compelling,  §  3380. 
Forfeiture,   not   enforceable   by,  §  3369. 


1252  INDEX. 

SPECIFIC  RELIEF.     (Continued.) 

Given  in  no  other  cases  than  specified  in  code  §  3274. 

How  given,  §  3367. 

Judgment  for  possession  or  title  of  realty,  §  3375. 

Ma}-  be  granted  as  provided  by  laws  of  state,  §  3366. 

Nuisance,  in  case  of,  §  3369. 

Penal  statute  not  enforceable  by,  §  3369. 

Penalty  not  enforceable  by,  §  3369. 

Possession  of  realty,  how  recovered,  §  3375. 

Preventive  relief,  §  3368. 

Kecovery  of  personal  property,  §§  3379,  3380. 

Specific  real  property,  how  recovered,  §  3375. 

SPORT. 

Eight  of  conducting  as  easement,  §  801. 

STAGE.     See  Passenger  Carriers. 

Obligation  to  carry  baggage  on,  §  2180. 

STALLION. 

Lien  of  owner  of  stallion  used  for  propagation,  and  how  enforced, 
§§3062-3064. 

STAMP. 

None  required  on  accident  insurance  contract,  §  448. 

STATE. 

Islands  belong  to,  when,  §  1016. 

Preference  by  carrier  to,  §  2171. 

Property,  may  hold  as  private  proprietor,  §  669. 

Property  of,  what  lands  are,  §  670. 

Water,  title  to  or  use  of  is  in  people  of,  §  1410. 

STATE  LAND. 

Letters  patent  lost,  recording  certified  copy  and  effect  of,  §  1160. 
Letters  patent  may  be   recorded   without   acknowledgment,  §  1160. 
Eailroad  may  take  wood  and  earth  from,  §  476. 
Eight  of  railroads  in  or  over,  §§  474-478. 

STATUTE  OF  FRAUDS. 

Acceptance  of  bill  of  exchange  must  be  in  writing,  §  3193. 

Agency,   contract  of,  §  2309. 

Agent,  agreement  employing  to  bu}'  or  sell  realty,  §  1624. 

Assignment  for  creditors,  §§  3458,  3459. 

Assignment  for  creditors,  transfers  by  sheriff  to  assignee  on,  to  be 

written,  §  3458. 
Auctioneer's  memorandum,  §§  1624,   1798. 
Bequeath,  agreement   to,  §  1624. 

Broker,  agreement  employing  to  buy  or  sell  realty,  §  1624. 
Contract  not  in  writing  through  fraud  enforceable,  §  1623. 
Conveyance,  writing  necessary  to  transfer  of  real  property,  §  1091. 
Debt,  default,  or  miscarriage  of  another,  agreement  to  answer  for, 

§  1624. 
Devise,  agreement  to,  §  1624. 

Exchange,  contract  of  to  be  written,  when,  §  1805. 
Guaranty,  §§  1624,  2793,  2794. 
Guaranty  by  factor  need  not  be  written,  §  2794. 
In   general,  §  1624. 

Lease,  agreement  for,  longer  than  year,  §  1624. 
Lease  by  agents,  authority  of  agent  to  be  written,  §  1624. 
Lifetime  of  promisor,  agreement  not  to  be  performed  in,  §  1624. 


INDEX.  1253 

STATUTE  OF  FRAUDS.     (Coutinued.)  , 

Manufacture,  agreeineut  for,  not  within,  §  1740. 

Manufacture,  contract  to,  §  174U. 

Marriage,  agreement  upon    consideration  of,  §  1624. 

Marriage,  promise  of,  §  1624. 

Memorandum  of  auctioneer,  §  1624. 

Memorandum  to  be  written  and  signed  by  party  to  be  charged,  §  1624. 

Memorandum,  what  to  contain,  §§  1624,  1739,  1741. 

Mortgage,  creation  of,  §  2922. 

Mortgage,  power  of  attorney  to  execute,  §  2933. 

Mortgage,  renewal  or  extension  of,  §  2922. 

Oral  contract  may  be  enforced  unless  writing  required,  §  1622. 

Oral,  enforcing  against  fraudulent  party,  §  1623. 

Oral,  transfer  may  be   enforced,   when,  §  1052. 

Oral,  what  contracts  may   be  enforced,  §  1622. 

Part  performance  of  oral  contract  for  sale  of  realty,  effect  of,  §  1741. 

Real  estate  broker,  contract  employing,  §  1624. 

Realty  agreement  relating  to,  §  1624. 

Realty,  contract  for  sale,  §§  1091,  1741. 

Realty,  grant  of,  §  1091. 

Realty,  part  performance  of  agreement  for  sale-  of,  effect  of,  §  1741. 

Sale  of  choses  in   action,  when  within,  §  1739. 

Sale  of  personalty  over  $200  is  within,  §§  1624,  1739. 

Sale  of  personalty  over  $200,  where  purchaser  receives  part  or  pays 

part,  §  1739. 
Sales  at  auction,  memorandum  of  auctioneer,  §  1624. 
Sales  of  things  in  action,  §  1624. 
Sales  over  $200,  §§  1624,   1739. 
Ship,  transfer  of  interest  in, §  1135. 

Specific  performance,  contract  signed  by  one  party,  §  3388. 
Suretyship,  effect  of,  on  agreement  for,  §  1624. 
Trust,  transfer  of  interest  in, §  1135. 
What  agreements  to  be  in  writing,  §§  1624,  1739-1741. 
Will,  agreement  to  provide  for  one  in,  §  1624. 
Wine  sale,  when  need  not  be  in  writing,  §  3440. 
Writing  necessary  to  transfer  of  interest  in  realty,  §  1091. 
Writing  supersedes  oral  stipulations,  etc.,  §  1625. 
Year,  contract  not  to  be  performed  within,  §  1624. 

STATUTE  OF  LIMITATIONS.     See  Limitation  of  Actions. 

STATUTES. 

Act  done  under  authority  of,  not  a  nuisance,  §  3482. 

Code,  provisions  similar  to  existing  laws,  or  the  common  law,  how 

construed,  §  5. 
Code,  repeal  by,  does  not  revive  former  law,  §  20. 
Code,  statute  on  subjects  covered  by  repealed,  §  20. 
Code,  statutes  not  continued  in   force  because  consistent  with,  §  20. 
Construction  of  code  to  be  liberal,  §  4. 
Contemporaneous   construction  is  the  best,  §  3535. 
Infant  cannot  affirm  contract  made  under  authority  of  statute,  §  37. 
Injunction  not  granted  to  prevent  enforcement  of,  §  3423. 
Interpretation  giving    effect    preferred,  §  3541. 
Interpretation  must  be  reasonable,  §  3542. 
Particular   expressions   qualify   general,  §  3534. 
Repeal  of,  by  code,  §  20. 
Retroactive,   code   is   not,  §  3. 

Revivor  of,  not  worked  by  code  repealing  other  statutes,  §  20. 
Rights  created  by,  there  may  be  ownership  in,  §  655. 
Section,  meaning  of  as  used  in  code,  §  14. 


1254  INDEX. 

STEPFATHER. 

Eights  aucl  liabilities  respecting  stepchildren,  §  209. 

STOCK  AND  STOCKBROKER.     See  Corporations,  XIII.  ~ 

STOCK  IN  TRADE. 

Five  daj's'  notice  to  be  given  on  assignment  of,.§  3J:40. 

STOPPAGE  IN  TRANSIT.     See  Sales. 
In   general,  §§  3076-30S0. 

STORAGE.     See  Deposit;  Warehouseman. 
Carrier  may,  place  freight  on,  §  2121. 
Compensation  for  fraction  of  week  or  month,  §  1853. 
Compensation  on  storage  of  animals  for  fractions  of  week  or  month, 

§1853. 
Defined,  §  1851. 
.    Degree  of  care  required  of  depositary,  §  1852. 
Depositary  in,  is  depositary  for  hire,  §  1851. 
Finder  may  put  thing  on,  §§  186S. 
How  terminated,  §§  1854,  1855. 

Lien  for  charges,  code   provisions   governing,  §  1856. 
Lien  for  charges,  depositary  has,  §  1856.    ' 
Lien  for  charges,  sale  of  property  for,  right  of,  §  1857. 
Sale  of  luggage  for,  right  of,  §  1857. 
Sale  of  perishables  for,  right  of,  §  1857. 
Sale  of  unclaimed  baggage  for,  §  1862. 

STRANGER.     See  Third  "Person. 
Attornment  to,  §  1948. 
Grant  may  inure  to  benefit  of,  §  1085. 

STRATAGEM. 

Desertion  induced  by,  §  97. 

STREAM.     See  TV'aters. 

STREET. 

Boundary,  street  as,  §  831. 

Consent   of  municipalities   to  use  of  by  railroads,  §  470. 

Owner  presumed  to  own  to  center,  §  831. 

STREET-RAILWAY.     See  Street-railway  Corporation. 
Owned  by  natural  person.  la\t  governing,  §  511. 

STREET-RAILWAY  CORPORATION.     See  Carriers;   Eailroad  Corpora- 
tion. 
Authority  to  lay  tracks,  how  obtained,  §  497. 
Brakes  on  cars,  §  501. 
Cars  to  be  modern,  etc.,  §  501. 
City  reserves  right  to  improve  streets,  etc.,  §  507. 

City  owning  roads,  right  of  to  use  tracks  of  another  company,  §  499. 
Code  sections,  in  general,  which  apply  to,  §  510. 
Completion  of  road,  act  authorizing.     Appendix,  tit,  "Eailoads." 
Conditions  required   on   granting  right   of  way,  §  498. 
Crossings,   obstructions   in    making,  §  500. 

Crossing  track  of  another  railroad,  right  of  and  manner  of,  §  500. 
Electricity,  restrictions  imposed  in  granting  right  to  use,  §  497. 
Electricity,  steam  roads  permitted  to  use,  §  465a. 
Elevated,  conditions,  §  498. 

Fare  in  cities  over  100,000,  act  limiting  rate  of,  §  501.     Appendix,  tit. 
"Eailroads." 


INDEX.  1255 

STREET-RAILWAY  CORPORATION.      (Continued.) 

Franchise,  acts  relating  to  sale  of  and  governing  conditions  of  sale. 
Appendix,   tit.   "Eailroads." 

Franchise,  conditions  and  limitations,  §  497. 

Franchise,  how  obtained,  §  497. 

Franchise,  limitation  of  time  within  which  may  be  granted.  Ap- 
pendix, tit.  "Eailroads." 

Franchise,  proceedings  prior  to  the  granting  or  sale  of,  §  497a. 

Franchise,  statute  validating  ordinance  granting.  Appendix,  tit. 
''Railroads." 

Franchise,  term  of,  §  497. 

License  tax  on,  §  508. 

Limitations  and  restrictions,  §§  497,  498. 

Mail  carriers  to  ride  free  on.     Appendix,  tit.  "Railroads." 

Motive  power,  powers  ajid  duties  in  relation  to,  §  497. 

Municipal   regulations  respecting,   in   general,  §  503. 

Owned  by  natural  person,  laws  apply  to,  §  511. 

Passengers.     See  Passenger  Carriers. 

Penalty,  action  for,  proof  of   agency,  §  506. 

Penalty  for  non-compliance   with   statute,  §  501. 

Penalty  for  overcharging.  §§  501,  504. 

Permitting  two  or  more  companies  to  use  same  track,  authority  as  to, 
§499. 

Permitting  two  or  more  companies  to  use  same  tracks  where  tracks 
are  of  different  gauge,  §  499. 

Rates  of  fare,  §  501.     Appendix,  tit.  "Railroads." 

Rates  of  fare,  penalty  for  overcharging,  §§  504,  506. 

Regulations  ancl  rules  as  to,  power  of  city,  §  503. 

Restrictions  and  limitations,  §§  497,  498. 

Right  of  way,  restrictions   on,  §  498. 

Streets,  reservation  of  right  to  improve,  alter,  or  repair,  §  507. 

Tickets,  penalty  for  not  furnishing,  §  505. 

Tickets,  penalty  for  not  furnishing,  action  to  recover,  evidence, 
§  506. 

Tickets  to  be  furnished,  §  505. 

Time  allowed  for  completion  of  line,  §  502. 

Time,  failure  to  commence  or  complete  road  in  time,  effect  of,  §  502. 

Time  for  commencement  and  completion  of  line,  extension  of,  §  502. 

Time  for  commencement  of  road,  §  502. 

Track,  authority  to  lay  obtained  how,  §  497. 

Track,  for  grading  purposes,  authority  to  grant,  §  509. 

Track  for  grading  purposes,  limit  of  time,  §  509. 

Track  for  grading  purposes,  motive  power,  §  509. 

Track,  imposing  restrictions  in  grant  to  lay,  §  497. 

Tracks  to  be  laid  how,  §  498. 

Track,  two  lines,  right  of  to  use  same,  §  499. 

STREETS. 

Grading  track,  granting  right  for,  §  509. 
Railroads,  right  of,  to  use,  §§  465,  470. 

SUBAGENT.     See  A  gene  v. 
Factor,  of,  §  2368. 
Liability  of,  §  2022. 
Represents  principal,  §  2351. 

Unauthorized  apjiointment  of,  effect   of,  §  2350. 
When  may  he  ajipointed,  §  2349. 

SUBJACENT   SUPPORT.     See  Lateral   Support. 


1256  INDEX. 

SUBPOENA. 

Officer  takiug  ackuowledgnient  may  issue,  §  1201. 

SUBROGATION. 

Creditor,  by,  to  securities  lield  by  surety,  §  2S54. 

Insurer,   of,   in   marine   insurance,  §  2745. 

Lienor,  inferior,  right  to,  §  2904. 

Person  redeeming  property  subject   to  lien   of,  §  2903. 

Eedemptioner,  of,  §§  2903, '2904. 

Surety,  of,  §§  284S,  2849. 

SUBSCRIBING  WITNESS. 

Proof  of  writing  by,  §§  1195-1197. 

SUBSCRIPTION. 

Includes  mark,  §  14. 

Mark,  by,  two  witnesses  necessary,  §  14. 

To  will.     See  Wills,  I. 

SUBSEQUENTLY  ACQUIRED  TITLE. 

Passes  by  operation  of  law,  §  11U6. 
Passes  by  will,  §  1312. 

SUBSTITUTE. 

Liability  of  employee  for,  §  1989. 

SUCCESSION. 

Advancement  constitutes  part  of  distributiye  share,  §  1395. 

Adyancement,  death  of  heir  before  decedent,  §  1399. 

Advancement,  effect   of,  §  1309. 

Advancements,  value  of,  determined  how,  §  1398. 

Advancements,  what  are,  §  1397. 

Advancement,  when  too   much   or   too  little,  §  1396. 

After-born  child  not  provided  for  in   will,  §  1306. 

Alien,  non-resident,  failure  to  claim,  proceedings  in  case  of,  §§  1405, 

1406. 
Alien,  non-resident,  interest  escheats  when,  §  1406. 
Alien,  non-resident,  property  escheats  subject  to  charges,  §  1407. 
Alien,  non-resident,  taking  by,  time  to  assert  claim,  §§  672,  1404. 
Aliens   may   inherit   how   and   when,  §  1404. 
A  mode  of  acquiring  property,  §  1000. 
Annulled    marriage,    of    children    of,  §  84. 
Bastards,  by,  §  1387. 
Bastards,   to,  §  1388. 

Bona  fide  purchaser  from  one  claiming  by,  effect  of  will,  §  1364. 
Child,  after-born,   to  be  paid  out  of  what  part  of  estate,  §  1308. 
■    Child  born  after  death  of  testator,  §§  698,  1298,  1306,  1339,  1403. 
Child  born  after  execution  of  wiU,  §  1306. 
Children  ventre  sa  mere,  §  1339. 
Children  unprovided   for   in   will,  §§  1306,    1307. 
Collateral  consanguinity,  §§  1390-1393. 
Community  property,  on  death  of  husband,  §  1402. 
Community  property,  on  death  -of  wife,  §  1401. 
Consanguinity  computed  how,  §§  1389-1394. 
Consanguinity,  direct  and  collateral,  §§  1390-1393. 
'Consanguinity,  half  blood,  §  1394. 
(Jonveyance   by   heir  good   unless   will   proved   within    four  j-ears,   or 

notice  of  devise  filed,  §  1364. 
Death   of  beneficiary,  before  testator,  right   of  heirs,  §  1310. 
Defined, S  1383. 


INDEX.  1257 

SUCCESSION.      (Contiuued.) 

Degrees  of  kindred,  computation  of,  §§  1389-1393. 

Descent,  rules  of,  §  1386. 

Direct   or   lineal   consanguinity,  §§  1390-1393. 

lijgcheated    property    subject    to   charges,  §§  14U6,    1407. 

Escheats,  §§  1386,  140o,  1406. 

Escheat,  when  occurs,  §§  1405,  1406. 

Fee,  words  of  succession  unnecessary  to  pass,  §  1072. 

Future  interests  pass  by,  §  699. 

General  rules  of,  §  13S6. 

Half  blood,  kindred  of,  inheritance  by,  §  1394. 

Heirs,   property    of   intestate    passes   to,    subject    to    administration, 

§  1384. 
Homestead,  succession  to,  on  death  of  spouse,  §  1265. 
Husband  and  wife,  from  each  other,  §§  1400,  1402. 
Illegitimate  child,  succession  by  or  to.     See  Legitimacy. 
Intestate,    property    of,    passes    to    heirs    subject    to    administration, 

§  1384. 
Intestate's  estate,  rules  of  descent   of,  §  1386. 
Intestate,  to  estate  of,  §  1384. 

Kindred,  degrees  of,  hojv  computed,  §§  1389-1393. 
Liability  of  successor  for  decedent's  obligations,  §  1408. 
Liability  of  successors  on  covenants  of  decedent,  §  1115. • 
Life  insurance  may  pass  by,  §  2764. 
Murderer  of  decedent  not  to  succeed,  §  1409. 
Not   claimed,   sale   of   property   and   disposition  of   proceeds,  §§  1405, 

1406. 
Personal  and  real  property  pass  by,  §  1384. 
Posthumous  child,  rights  of  §§  698,  1306,  1339,  1403. 
Pretermitted  child,  by,  §  1307. 

Pretermitted  child,  effect   of   advancement    to,  §  1309. 
Pretermitted  child,  out  of  what  part  of  estate  to  be  paid,  §  1308. 
Proceedings    by    attorney-general    where    succession    to    estate    not 

claimed,  §§  1405,  1406. 
Property  of  intestate  passes  to  heirs,  §  1384. 
Eepresentation,  by,  when  takes  place,  §  1403. 
Rules  of,  in  general,  §  1386. 
Rules  of  where  one  dies  intestate,  §  1386. 
Sale    under    will    not    affected    by    succession    of    omitted    children, 

§§  1306,  1307. 
Successor  liable  for  decedent's  obligations,  §  1408. 
Will,  children  unprovided  for  by,  to  succeed,  §§  1306,  1307. 
Words   of,  not   necessary   to   pass   fee,  §  1072. 

SUGGESTIONS. 

False,  when  fraudulent,  §§  1572,  1710. 

SUMMONS. 

Certificate  of  place  where  maj-  be  served,  §  1163. 

Certificate  of  place  where  may  be  served,  affidavit  on  change  of  resi- 
dence, §  1163. 

Foreign  corporations,  on.     See  Corporations,  XVIII. 

Partnership,  designation  by,  of  person  upon  whom  summons  may  be 
served.     See  Partnership. 

Time  of  issuance  in  action  to  recover  stock  sold  for  delinquent  assess- 
ment, §  347. 

SUNDAY.     See   Holidays. 
A  holiday,  §  7. 
Holiday  falling  on,  §  8. 


1258  INDEX. 

SUPERFLUITY. 

Does  uot  vitiate,  §  3537. 

SUPERHUMAN  CAUSE. 

Carrier  uot  responsible  for  injury  from,  §  2194:. 

Excuses  performance,  §  1511.  • 

Xo  one  responsible  for  what  no  one  can  control,  §  3526. 

SUPERIOR  JUDGE. 

May  consent  to  apprenticeship  when,  §  265. 
May  take  acknowledgment,  §  1180. 

SUPERVISORS. 

Action  for  parental  abuse,  §  203. 

Apprenticeship,  consent   to,  §  265. 

Apprenticeship,  presiding  otficer,  power  to  bind  to,  §  269. 

Apprentices,  may  bind  out,  §  268. 

Elevated  or  underground  railways,  may  grant  franchise  for,  §  492. 

Franchise,  act  limiting  time  within  whiciT  may  be  granted.  Appen- 
dix, tit.  "Eailroads." 

Franchise,  acts  relating  to  sale  of  and  governing  conditions  of  sale. 
Appendix,  tit.  "Eailroads," 

Franchise,  act  validating  ordinance  grating.  Appendix,  tit.  "Fran- 
chises." 

Franchise  for  elevated  or  underground  road,  majority  of  frontage  to 
sign  petition,  §  492. 

Franchise  for  underground  or  elevated  road,  conditions  and  terms  of, 
§  492. 

Franchises   for   roads   for   horseless   vehicles,  §  524. 

Provision  for  support  of  orphan  out  of  property  of  intestate  parent, 
§  205. 

Eemedy  when  parent  dies  without  providing  for  child's  support,  §  205. 

Street  railways,  permitting  two  or  more  to  use  same  tracks,  §  499. 

SUPPORT. 

Mutual    obligations  between   husband   and   wife.     See   Husband   and 

Wife. 
Mutual  obligations  between  parent  and  child.     See  Parent  and  Child. 

SUPPORT  TO  LAND. 

Eight  of  more  than  natural,   as   easement,  §  801. 
Eight  to  lateral  and  subjacent  support,  §  832. 

SUPREME  COURT. 

Clerk  of,  may  take  acknowledgment,  §  1180. 
Justice   of,   may  take  acknowledgment,  §  1180. 

SUPREME  JUDGE. 

May  take  acknowledgment,  §  1180. 

SURETYSHIP.     See  Guaranty;   Indemnity. 

Apparent  principal  may  show  himself  surety,  §  2832. 

Bail,  sureties  when  are  called,  §  2780. 

Contribution  from  co-surety,  right  of,  §  2848. 

Contribution^  rele/ise  as  affecting,  §  1543. 

Creditor  entitled  to  securities  held  by  surety,  §  2854. 

Deiinition   of  surety,  §  2831. 

Exoneration  of  surety,  what  acts  effect,  §§  2839,  2840,2845. 

Guarantor,  surety  has  rights  of,  §  2S44. 

Interpretation,  general  rules  of,  §  2837. 

Interpretation,  strict,  §  2836. 


INDEX.  1259 

SXTRETYSHIP.      (Continued.) 

Judgment  against  surety  does  not  alter  relation,  §  2838. 

Letters  of  credit,  §§  2860-2865.     See  Letters  of  Credit. 

Liability  of  surety,  limit  of,  §  2836. 

Not  liable  beyond  express  terms  of  contract,  §  2836. 

Penalty,  liability  where  contract  imposes,  §  2836. 

Performance  or  offer  to  perform  exonerates  surety,  §  2839. 

Principal  bound  to  reimburse,  §  2847. 

Principal's  property  to  be  taken  first,  §  2850. 

Principal,  surety  may  compel  performance  by,  §  2846. 

Release  of  surety  by  performance  or  offer  of,  §  2839. 

Eelease  of  surety,  in  general,  §  2840. 

Eeimbursement   of  surety,  §  2847. 

Securities  held  by  creditor  or  co-surety,  surety  entitled  to,  §  2849. 

Statute  of  frauds,  effect  on  contract,  §  1624. 

Subrogation  of  creditor,  §  2854. 

Subrogation  of  surety,  to  rights  of  principal  or  co-surety,  §§  2848, 
2849. 

Surety,  apparent  principal  may  show  himself  to  be,  §  2832. 

Surety  cannot  claim  reimbursement  from  third  person,  §  2847. 

Surety  defined,  §  2831. 

Surety,  discharge  of,  what  acts  effect,  §§  2839,  2840,  2845. 

Surety  entitled  to  securities  held  by  creditor,  §  2849. 

Surety  exonerated  by  performance  or  offer  to  perform,  §  2839. 

Surety,  failure  to  proceed  against  principal  or  pursue  remedies,  effect 
of,  §  2845. 

Surety  has  rights  of  guarantor,  §  2844. 

Surety,  judgment  against  does  not  alter  relationship,  §  2838. 

Surety,  liability,  limit   of,  §  2836. 

Surety,  liability  where  contract  imposes  penalty,  §  2836. 

Surety  may  compel  principal  to  perform,  §  2846. 

Surety  may  compel  principal  to  pursue  remedies  he  has,  §  2845. 

Surety  may  require  creditor  to  proceed  against  principal,  §  2845. 

Surety  may  require  principal's  property   to   be   taken   first,  §  2850. 

Surety  not  liable  beyond  express  terms  of  contract,  §  2836. 

Surety,  person  indemnifying  is  a,  when,  §  2779. 

Surety,  principal  is  bound  to  reimburse,  §  2847. 

Surety,  right   of   to    contribution,  §  2848. 

Surety,  subrogation  of,  on  payment,  to  rights  of  principal  or  co- 
surety, §§  2848,  2849. 

SURGEON.     See  Veterinary  Surgeons. 

SURPRISE. 

Contract  made  by,  not  specifically  enforced,  §  3391. 

SURVEY. 

Of  wagon-road  to  be  filed,  etc.,  §  513. 

SURVEYOR-GENERAL. 

Permit   to   railroads   to   use    state   land,  §  478. 

Selection   of   right   of   way  by   corporations  sent   to,  §  478. 

SURVIVORSHIP. 

Between  co-trustees,  §§  860,  2288. 
Cbose  in  action^  survival  of,  §  954, 


1260  INDEA. 

T 

TAIL. 

Estates-tail  abolished,  §  76^. 
Interest  created  by  estate-tail,  §  763. 

TARE. 

Allowance  of,  on  baled  hops,  §  995. 

TAX. 

Covenant  for  payment  of  taxes  runs  with  land,  §  1463. 
Encumbrance  includes,  §  1114. 
License,  on  street-railways,  §  508. 
Life  tenant's  duty  to  pay,  §  840. 

TECHNICAL  WORDS. 

How  construed,  §§  13,  1327, 1645. 
Not  necessary  in  will,  §  1328. 

TELEGRAPH  CORPORATIONS. 

Act  relating  to  non-profit  co-operative  corporations  does  not  apply 
to,  §  653za. 

Amounts  to  be  subscribed  and  paid  in,  §§  293,294. 

Articles   of,  to  set   forth  what,  §  291. 

Articles,   prerequisites    to   filing,  §§  293,  294. 

Care  required  in  transmission  of  messages,  §  2162. 

Common  carrier,  telegraph  company  is  not,  §  216S. 

Co-operative  business  associations,  provisions  relating  to,  do  not  apply 
to,  §  6531. 

Delivery,  duty  as  to,  §  2161. 

Delivery,  within  what  distance  to  be  made  without  compensation, 
§2161. 

Franchise,  property,  etc.,  sale  or  lease  of,  §  540. 

Injury -to,  liability,  §§  537,  538. 

Letters  of  credit,  license  for  issuing,  fee  for.  Appendix,  tit.  "Bank- 
ing" §  13.  .' 

Letters  of  credit,  license  from  superintendent  of  banks  necessary 
before  issuing.     Appendix,  tit.  "Banking,"'  §  13. 

Liability  for  delay  in  or  refusal  of  message,  §  2209. 

May  dispose  of  what  rights,  §  540. 

Message,  compensation  for   delivery  of,  §  2161. 

Messages,  compensation  for  delivery  over  one  mile,  §  2161. 

Letters   of   credit,   right  to  issue.     Appendix,  tit.   "Banking,"  §  13. 

Messages,  damages  for  not  accepting,  §  3315. 

Messages,  delivery  of,  obligations  as  to,  §  2161. 

Messages,  liability   for   delay   or   refusal   of,  §  2209. 

Messages,  order  of  transmission,  §  2207. 

Messages,  postponement  or  refusal  of,  damages  for,  §  2209. 

Messages,  telegraph,  carriers  of,  liability  of,  §§  2161,  2168. 

Oath  as  to  amount  subscribed  and  paid  in,  §  295. 

Penalty  or  malicious  injury  to,  §  538. 

Poles,  etc.,  manner  of  erection,  §  537. 

Poles,  etc.,  right  to  erect,  §  536. 

Bight  of  way  along  waters,  roads,  and  highways,  §  536. 

Subaqueous  cable,  damages  for  injury  to,  §§  537,  539. 

Subaqueous  cable,  monument  to  show  location,  §  539. 

Subaqueous  cable,  notice  of  location,  §  539. 

Subscription,  amount  of,  as  prerequisite  to  filing  articles,  §§  293,  294. 

Ten  per  cent  of  amount  subscribed  to  be  paid  in,  §  294. 


INDEX.  1261 

TELEGRAPH  CORPORATIONS.      (Continued.) 
Transfer  or  lease  of  property,  §  540. 
Vessel  injuring  cable,  liability,  §§  537,  539. 

TELEPHONE  CORPORATIONS. 

Act  relating  to  non-profit  co-operative  corporations  does  not  apply  to, 

§  653za. 
Care  required  in  transmission  of  message,  §  2162. 
Common  carrier,  carriers  of  messages  are,  §  2168. 
Cdnstruction  of  lines  authorized,  §  536. 
Co-operative  business  associations,  provisions  relating  to  do  not  apply 

to,  §  653  1. 
Damages  for  breach  of  obligation  to  receive  messages,  §  3315. 
Delivery  of  messages,  compensation  for  delivery  over  one  mile,  §  2161. 
Delivery  of  messages,  obligations  as  to,  §  2161. 

Franchises,  property,  or  rights  of,  sale,  lease,  or  assignment  of,  §  540. 
Highway,  right  to  erect  poles  on,  granted  to,  §  53d. 
Injury  to  property  of,  liability  for,  §§  537,  538. 
Lease,  sale,  or  assignment  of  property,  rights,  and  franchise,  §  540. 
Liability  for  delay  in  or  refusal  of  messages,  §  2209. 
Malicious  injury  to  property,  liability  or,  §  538. 
Messages,  fixing  times  for  transmission  of,  §  2209. 
Messages,  order   of   transmission   of,  §  2209.  ^ 

Messages,  postponement  or  refusal  of,  damages  for,  §  2209. 
Poles,  etc.,  manner  of  erection,  §  537. 
Poles,  right  to  erect,  granted  to,  §  536. 
Property  of,  injury  to,  liability  for,  §§  537,588. 
Bights  of  way  granted  to,  §  536. 

Subaqueous  cable,  liability  of  vessel  for  injury  to,  §§  537,  539. 
Subaqueous  cable,  monument  or  notice  to  show  location,  §  539. 
Vessel,  injury  by,  to  subaqueous  cable  of,  liability  for,  §§  537,  539. 

TENANT.     See  Landlord  and  Tenant;  Leases. 

TENANT  AT  WILL.     See  Estates  at  AMll. 

TENANT  FOR  LIFE.     See  Estates  for  Life. 

TENANT  FOR  YEARS.     See  Estates  for  Years. 

Eights  in  occupancy  and  use  of  property,  §§  819,  820. 

TENANTS  IN  COMMON.     See  Co-tenancy. 

Insurance  not  avoided  by  transfer  between,  §  2557. 

Interest  in  common,  what,  §  685. 

Interests  created  are  tenancies  in  common,  when,  §  686. 

Mine,  delinquent  co-owner,  notice  to  and  proceedings  on,  §  1426o. 

Notice,  re-entry   after   termination   of   tenancy  by,  §  79U. 

Rights  in  occuxjancy  and  use   of  property,  §§  819,  S20. 

Ship-owners,    disagreement    between,    court    to    determine,  §  964, 

Spouses   as,  §  161. 

Tenancy,  how  terminated,  §  789. 

Where  thing  made  from  materials  of  several  owners,  §  1030. 

Wife,  when  a  tenant  in  common,  §§  161, 164. 

Will,  devisees  or  legatees  take  as  owners  in  common  when,  §  1350. 

TENDER. 

And  deposit  extinguish  obligation,  §  1500. 

Interest  stopped  by,  §  1504. 

Of  performance  of  an  obligation,  §§  1485-1505. 

TENSE. 

Of  words  in  code,  §  14.  •  .         , 


1262  -■  INDEX. 

TESTIFY. 

Defined,  §  14. 
Includes  what,  §  14. 

THEATERS.     See  Amusements. 

All  citizens  to  have  equal  rights,  §  51. 

Denial  of  equal  rights,  punishment,  §  52. 

Inciting  denial  of  equal  rights,  punishment  of,  §  52. 

Persons  maj-  be  excluded  from,  when,  §  53. 

Eefusal  of  admission  to  places  of  amusement,  damages,  §  54. 

Refusal  of  admission  to,  unlawful,  §  53. 

THING  IN  ACTION.     See  Chose  in  Action. 

THIRD  PERSON. 

Act  of,  not  to  prejudice,  §  3520. 

Agent  must  deliver  to,  when,  §  2344. 

Agent's  responsibility  to,  §  2343. 

Consideration,  trust  where  paid  by,  §  853. 

Contracts  for  benefit   of,  enforcing,  §  1559. 

Delivery    in    escrow    to,  §  1057. 

Estates  for  life  of,  §  766. 

Grant  may  inure  to  benefit  of ,  §  1085. 

]VIarine  insurance,  information  of  belief  of,  §  2670. 

May  enforce  contract,  §  1559. 

Necessaries  furnished  child  by,  §§  208,  209. 

Necessaries  furnished  wife  by,  §  174. 

Partner's  liability  to,  §  2442. 

Pledge  may  be  for  security  of  obligation  of,  §  2992. 

Eatification  of  agent's  act  not  to  prejudice,  §  2313. 

Reformation  of  contract  not  to  prejudice,  §  3399. 

Remainder  on  estates  for  life  of,  §§  775,  776. 

Specific  performance  of  contract  to  procure  act  of,  §  3390. 

Trustee,  involuntary,  when   is,  §  2243. 

Trust  property,  when  must  see  to  application  of,  §  2244. 

Trusts  for  benefit  of,  §  2250. 

Who  liable  as  partners  to,  §  2444. 

Who  must  suffer  by  act  of,  §  3543. 

THRASHING-MACHINE.  • 

Liens  of  laborers  on.     See-  Services. 

THREAT. 

Contract   obtained   through,   voidable,  §§  1567, 1689 

Desertion  caused  by,  divorce,  §  9S. 

Menace,  defined,  §  1570. 

Partner,  by,  to  obtain  advantage,  §  2411. 

Trustee,  by,  to  obtain  advantage,  §  2228. 

"\^'ill  procured  by,  void,  §  1272. 

TICKET.     See  Passenger  Carriers. 

TIDE  LANDS. 

State  is  owner  of,  §  670. 

TIDE-WATER. 

Owner   of   land   bounded   by,  §  830. 

TIMBER. 

Injuries  to,  treble  damages  for,  §  3346. 

Lien  of  logger  for  services  about.     See  Services. 


INDEX.  1263 

TIME. 

Abandonment  in   marine  insurance,   tini«   of   making,  §  2719. 

Adoption  of  bj'-laws,  of,  §  301. 

Alien,  claim  to  take  by  succession,  §§  672,  1404. 

Alien  must  appear  and  claim  property  within  five  years,  §§  672,  1404. 

Appraisers   of   homestead,   time   to   file   report,  §  1252. 

Appraisement  of  homestead,  notice  of  time  and  place  of  hearing,  time 
to  serve,  §  1248. 

Appraisement  of  homestead,  time  to  apply  for  on  execution  against, 
§  1245. 

Appropriation  of  water,  time  to  commence  works,  §§  1416,  1420. 

Articles   of  incorporation,   time  to   file,  §  299. 

Avulsion,  time  to  reclaim  laud,  §  10157 

Bonds  of  assignee  for  creditors,  time  to  file,  §  3467. 

Code   takes   effect  when,  §  2. 

Computation  of,  §  10.  * 

Contract,  when  takes  effect,  §  1626. 

Corporations  to  organize  and  commence  business  within  what  time, 
§358. 

Creation  of  interest,  of,  §  749. 

Delinquent  stock  sale,  extension  of  time  of,  §  345. 

Development  of  works  on  appropriation  of  water  for  power,  §  1416. 

Divorce,  commencing  actions  for,  §  127. 

Does  not  confirm  void  act,  §  3539. 

Entire,   of  servant  belongs  to   master,  §  2013. 

Essence,  not  of,  unless  expressly  declared,  §  1492. 

Financial  statement  of  affairs  of  corporation,  request  for  by  stock- 
holders,  time   to   file,  §  302a. 

Grant,  of  delivery,  presumption,  §  1055. 

Homestead,   appraisement   of,   proceedings  for,  §§  1245,  1248. 

Inventory  on  assignment  for  creditors,  time  to  file,  §  3461. 

Lapse  of,  defeats  divorce,  §  111. 

Lapse  of.     See  Lajjse  of  Time. 

Marriage,  of  commencing  action  for  nullity  of,  §  83. 

Meeting,  proxy,  length  of  time  for  which  valid,  §  32lb. 

Mining  claim,  affidavit  of  performance  of  annual  work,  §  1426m. 

Minority,  computing  period  of,  §  26. 

Notice  of  termination  of  lease,  §  789. 

Notice  to  delinquent  co-owner  of   mine,  §  1426o. 

Notice  to  insurance  company  of  accident  or  injury,  giving  of,  §  2633a. 

Nuisance   is   not   legalized   by   lapse   of,  §  3490. 

Nuncupative  will,  limitation   on   time   for   proving,  §  1290. 

Nuncupative  will,  to  be  reduced  to  writing  in  thirty  days,  §  1290. 

Obligation,   time   of   performance,  §§  1490,  1491. 

Of  enjoyment  of  property,  classification  of  interests  as  to,  §  688. 

Of  enjoyment  of  property,  fixing,  §  707. 

Notice  of  dishonor,  §§  3147,  3148. 

Notice  of  dishonor  by  indorser,  §  3150. 

Notice  to  creditors  on  assignment  by  insolvent,  §§  3449,  3468. 

Performance  of  contract,  §  1657. 

Performance  of  obligation,  offer  of,  §§  1490,  1491. 

Presumptions  arising  from  lapse  of,  how  rebutted,  §  126. 

Priority  in  time  makes  priority  in  right,  when,  §  3525. 

Probate    of    nuncupative    will,    of,  §  1291. 

j-'ublication  of  sale  for  delinquent  assessment,  §  339. 

Railroad  may  regulate  time  of  trains,  §  465. 

Recording  of  notice  of  location  of  mill  site  claim,  §  1426k. 

Recording  of  notice  of  location  of  mining  claim,  §§  1426b,  1426d, 
1426g. 


1264  INDEX. 

TIME.      (L'outiuued.) 

Eedemption   from   sale   of   franchise   under   execution,  §  392. 
Eepreseutatiou  in  insurance  refers  to  what,  §  2577. 
Eight  lo  rescind  polity,  time   to  exercise,  §  2583. 
ytreet-railway,  time  to  commence  and  complete  road,  §  502. 
Unreasonable  lapse  of,  defined,  §  125. 
Void  act  is  not  confirmed  by,  §  3539. 
Will,  words  in,  relate  to   what,  §  1336. 

TITLE.     See  Title  Insurance  Corporations. 
Accession,  by,  §  1013.     See  Accession. 
Acquired   subsequently   to   conveyance   passes   by   operation   of   law, 

§  1106. 
Bona   fide   purchaser   from   one   in   possession,   title   of,  §  1142. 
Buyer  acquires  better  than  seller  had,  when,  §  1142. 
Damages  lor  breach  of  warranty  of  title  of  personalty,  §  3312. 
Deeds,   title   deeds    to   whom   belong,  §  S/93. 
Devise,   by,  §  1311. 

Exchange,   executing  contract  for,   title  when   only  passes,  §  1141. 
Exchange,  title  passes  by,  when,  §  1140. 
Executory  agreement  of  sale,  when  only  passes,  §  1141. 
Fee-simple,  when  presumed  to  pass,  §  1105. 

Freight,  to,  trauster  of,  by  transfer  of  bill  of  lading,  §§  2127,  2128. 
Highway,  to  passes  by  transfer,  §  1112. 
Instruments  evidencing,  declared  by  judgment,  recording  of,  §§  1159, 

1204. 
Instruments  affecting,  recording  in  different  counties,  §  1218. 
Inventory  of  wife's  property  as  notice   of,  §  166. 
Judgment  for  possession  or,  §  3375. 
Lien  does  not  transfer,  §  2888. 
Loaned  property,  of,  §§  1885,  1904. 
Modes  by  which  property  acquired,  §  1000. 
Occupancy,  title   conferred  by,  §  1006. 

Occupancy,  by,  when  only  warrants  action  to  quiet  title,  §  lOOG. 
Personal  property,  to,  what  passes  by  transfer,  §  1140. 
Prescription,   by,  §  1007. 

Eedelivery  or  cancellation  of  grant   does  not  revest,  §  1058. 
Specific  devise  or  legacy,  by,  §  1363. 
Subsequently,  acquired  inures   to   mortgage,  §  2930. 
Subsequent!}-  acquired,  passes  by  operation  of  law,  §  1106. 
Subsequently  acquired,  passes  by  will,  §  1312. 

Thing  ottered  in  performance,  title  to,  when  passes  to  creditor,  §  1502. 
Transfer  of.     See  Transfer. 
Transfer,  what  passes  by,  §§  1083,  1105. 
Trust  property,  title  of  grantor  of,  §  865. 

Warranty  of,  damages  for  breach  of,  on  sale  of  personalty,  §  3312. 
Warranty  of,  on  sale  of  personal  property',  §  1765. 
Warranty  of,  to  personal  property,  by  agent,  §  2323. 
Water,  to,  is  in  people  of  state,  §  1410. 
What  title  passes  by  transfer,  §§  1083,  1105. 

TITLE  DEED. 

Ownership  of,  §  994. 

TITLE  INSURANCE  CORPORATIONS. 

Certificate  of  insurance  commissioner  necessary  before  issuing  poli- 
cies, §  453y. 
Definition  of  policy  of  title  insurance,  §  453v. 


INDEX.  1265 

TITLE  INSURANCE  CORPORATIONS.     (Contiuued.) 

Departmental  business  as  title  insurance  and  trust  company,  com- 
pany doing,  provisions  of  law  governing.  Appendix,  tit.  "Bank- 
ing," §  107. 

Departmental  business  as  title  insurance  and  trust  company,  com- 
pany doing,  subject  to  inspection  by  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  107. 

Departmental  business,  title  insurance  company  doing,  compliance 
with  provisions  of  statute.     Appendix,  tit.  "Banking,"  §  106. 

Dividends  to  be  made  from  profits  only,  §  453u. 

Guarantee,  fund,  amount  of,  §  453t. 

Guarantee  fund,  approval  of  securities  by  insurance  commissioner, 
§  453t. 

Guarantee  fund,  of  what  may   consist,  §  453t. 

Guarantee  fund,  bonds  secured  by  mortgages  or  deeds  of  trust,  ap- 
praisement of  property,  §  453t. 

Guarantee  fund,  bonds  secured  by  mortgages  or  deeds  of  trust,  ab- 
stracts of  title  in  case  of,  §  453t. 

Guarantee  fund,  bonds  secured  by  mortgages  or  deeds  of  trust,  exami- 
nation of  titles,  §  453t. 

Guarantee  fund,  exchange  of  securities  for  other  securities,  §  453t. 

Guarantee,  fund,  interest  and  dividends  on  securities,  §  453t. 

Guarantee  fund,  state  responsible  for  custody  and  safe  return  of, 
§  453t. 

Guarantee  fund,  treasurer  to  give  receipt  for  securities  deposited, 
§  453t. 

Guarantee  fund,  treasurer  to  hold  money  and  securities  for  benefit 
of  policy-holders,  §  453t. 

Guarantee  fund,  power  of  state  treasurer  to  transfer  and  dispose  of, 
§  453t. 

Guarantee  fund,  securities  in  which  may  be  invested  and  approval , 
of  insurance  commissioner,  §  453t. 

Guarantee  fund,  to  be  deposited  with  state  treasurer,  §  453t. 

Insurance  commissioner,  power  and  authority  over,  §  453s. 

Investments,  capital  and  accumulations  in  what  securities  may  be  in- 
vested, §  453x,  subd.  2. 

Loans  to  officers,  employees  or  members  of  family  of,  forbidden, 
§  453z. 

Loans  to  officers,  employees  or  members  of  family  of,  penalty  for 
violation  of  provision  against,  §  453z. 

May  act  as  registrar  or  transfer  agents  of  bonds  or  stocks,  §  453w. 

May  guarantee  identity,  due  execution  and  validity  of  notes,  bonds 
and  evidences  of  indebtedness,  §  453w. 

Plant,  investment  of  portion  of  capital  stock  in,  §  453t. 

Plant  regarded  as  an  asset,  §  453t. 

Plant,  valuation  of,  §  453t. 

Subject  to  requirements  of  insurance  laws,  §§  453s,  453x,  subd.  2. 

Subject  to  rules  and  regulations  of  insurance  department,  §§  453s, 
453x,  subd.  2. 

Surplus  fund,  amount,  maintenance,  impairment  and  restoration  of, 
§  453u. 

Surplus  fund,  setting  aside  of,  §  453u, 

Trust  business,  title  insurance  company  doing,  capital,  amount  re- 
quired and  increase  of.     Appendix,  tit.  "Bankin'g,"  §  lOG. 

Trust  business,  title  insurance  company  doing,  requirements.     Appen- 
dix, tit.  "Banking,"  §  106.  ' 
Civ.  Code — 80 


1266  INDEX. 

TITLE  INSURANCE  CORPORATIONS.      (Contiuued.) 

Trust   company,   acting  as,  surplus  and  accumulations,  how  may  be 

invested,  §  453x,  subd.  3. 
Trust  company,  conditions  preliminary  to  acting  as,  §  453x. 
Trust  company,  may  act  as,  §  453x. 
Trust  company,  subject  to  banking  laws,  rules  and  regulations  when 

acting  as,  §  453x,  subd.  3. 
Trust  compauit'S.     See  Trust  Companies. 
Trust  department  of,  inspection  and  examination  of.     Appendix,  tit. 

"Banking,"  §  124. 

TOLLS.     See  Wagon-road  Corporations. 

Franchise,  levy  on  and  sale  under  execution,  §  388. 

Gatherer  may  detain  person  until  paid,  §  517. 

Gatherer  not  to  detain  person  unnecessarily,  §  518. 

Natural  person  may  own  toll-road,  §  523. 

Natural  person  owning  toll-road,  rights  and  liabilities,  §  523. 

Not  to  be  charged  on  public  highway,  §  515. 

Penalty  for  avoiding,  §  519. 

Penalty  for  taking  unlawful  or  excessive,  §§  514,  518. 

Eates  to  be  posted  over  gate,  §  516. 

Eight  of  taking  as  servitude,  §  802. 

Wagon-road  corporations,  by,  §  514. 

Wagon-road  corporations,  tolls  by.     See  Wagon-road  Corporations. 

TORT,     See  Wrongs. 

Agent's,  principal's  liability  for,  §§  2338,  2339. 
Carrier  cannot  exempt  himself  from  liability -for,  §  2175. 
Damages,  exemplary,  in  case  of  oppression,  fraud,  or  malice,  §  3294. 
Damages  for,  measure  of,  general  rule,  §  3333. 
Damages  for  wrongs,  §§  3333-3341. 
Damages  recoverable  for  tortious  acts,  §  3281. 
Deceit,  §§  1709-1711.     See  Deceit. 

Duty  to  abstain  from  injury  to  person  or  property,  §  1708. 
Indemnity  against,  §§  2773,  2774. 
Infant,  liability  for,  §  41. 

Infringements  upon  rights  of  others,  duty  to  refrain  from,  §  1708. 
In  general,  §  1708. 

Injuries  to  another,  duty  to  refrain  from  inflicting,  §  1708. 
Insane  persons,  liability  for,  §  41. 

Interest  as  damages  in  case  of  oppression,  fraud,  or  malice,  §  3288. 
Liability  for  willful  acts,  §  1714. 
Libel.     See  Libel. 

Married  women,  by.     See  Married  Women. 
Eestoration  of  thing  wrongfully  acquired,  §§  1712,  1713. 
Slander.     See  Slander. 

Unlawful  acts  or  omissions,  damages  recoverable,  §  3281. 
Willful  acts,  negligence,  etc.,  liability  for,  §  1714. 
Willful  holding  over   of  real  property,  damages  for,  §  3335. 
Wrongfullv  using  materials  of  another,  wrongdoer  liable  in  damages, 
§  1033". 

TOWN  LOT. 

Not  embraced  in  state  lands  granted  to  railroads,  §  475. 
TRADE. 

Contracts  in  restraint  of,  §§  1673-1675. 

TRADE-MARK. 

May  be  appropriated  to  exclusive  use,  §  991. 
Ownership,  subject  of,  §  655. 


INDEX.  1267 

TRADE-MARK.     (Continued.) 
Property,  is,  §  655. 

Sale  of  property  to  which  attached,  warranty,  §§  1772,  1773. 
What  may  be  appropriated,  §  991. 

TRANSFER.     See  Assignment;  Conveyance;  Deeds;  Grants;  Sale. 

Adverse    possession    of    another,    property    in,    may    be    transferred, 

§  1047. 
Bill  of  lading,  §  2128. 
Bona  fide  purchaser,  title  of,  §  1142. 
Called  what,  §  1053. 

Cancellation  of,  does  not  revest  title,  §  1058. 
Complete  when,  §  1140. 
Conditions  in.     See  Conditions. 
Covenants,  of,  §§  1460-1467. 
Covenants.     See  Covenants. 
Defined,  §§  1039,  1053. 

Delivery,  conditional,  cannot  be  to  grantees,  §  1056. 
Delivery,  constructive,  §  1059. 
Delivery,  date  of,  presumption  as  to,  §  1055. 
Delivery  in  escrow,  §  1057. 
Delivery  necessary,  §  1054. 
Delivery  to  grantee  must  be  absolute,  §  1056. 
Delivery  to  stranger,  effect  of,  §  1059. 
Denominated  what,  §  1053. 
Effect  of,  §§  1083-1085. 

Executory  agreement  for,  title  passes  when,  §  1141. 
Form  of  grant,  §  1092. 

Fraudulent,  respecting  realty,  §§  1227-1231. 
Fraudulent.     See  Fraudulent  Conveyance. 
Future  interests  pass  by,  §  699. 
Gift.     See  Gift. 
Good-will,  of,  §  993. 
Grant  defined,  §  1053. 

Grant  includes  whatever  is  essential  to  use,  §  3522. 
Incidents  follow  thing  transferred,  §  1084. 
Incident,  transfer  of,  does  not  carry  principal,  §  1084. 
Insured  thing,  of,  effect  of,  §§  2553-2557. 
Interpretation  of  grant.     See  Conveyances. 
Life  insurance  policy,  of,  §  2764,  2765. 
Married  woman,  by,  effect  of,  §  1187. 
Married  woman's,  how  made  and  acknowledged,  §  1093. 
Mode  of,  §  1091. 

Mortgage,  when  transfer  deemed  a,  §  2924. 
Name,  change  of,  transfer  of  realty  in  case  of,  §  1096. 
Non-negotiable  instrument,  of,  §  1459. 
Obligation,  of  rights  arising  out  of,  §  1458. 
Obligations,  burden,  transfer  of,  §  1457. 
Oral,  when  may  be,  §  1052. 
Personal  property.     See  Sales. 
Possibility,  of,  §  1045. 
Property  may  be  acquired  by,  §  1000. 
Property  of  any  kind  may  be  transferred,  §  1044. 
Property  susceptible  of, §  1044. 
Realty,  of.     See  Conveyance;  Deeds. 
Recording.     See  Recording. 
Redelivery  does  not  revest  title,  §  1058. 
Re-entry,  right  of,  may  be  transferred,  §  1046. 


1268  INDEX. 

TRANSFER.     (Continued.) 

Eents,  remainders,  and  reversions,  of,  §  1111. 

Ship,  of  interest  in,  statute  of  frauds,  §  1135. 

Statute  of  frauds,  §§  1135,  1624.     See  Statute  of  Frauds. 

Stranger,  grant  may  inure  to,  §  1085. 

Third  person,  grant  may  inure  to  benefit  of,  §  1085. 

Title  passes,  when,  §  1140. 

Title  passes  when  ifl  executory  contract  for  sale,  §  1141. 

Title,  what  passes,  §  1083. 

Title,  when  buyer  acquires  better  than  seller  had,  §  1142. 

Unlawful,  §§  1227-1231. 

Voluntary,  consideration  not  necessary,  §  1040. 

Voluntary,  defined,  §  1040. 

Voluntary,  rules  governing  contracts  apply  to,  §  1040. 

Warranty  of  written  instrument  sold,  §  1774. 

What  called,  §  1053. 

What  may  be  transferred,  §  1044. 

When  complete,  §  1140. 

Will,  effect  onj,§  1302. 

Written,  is  called  a  grant  or  conveyance  or  bill  of  sale,  §  1053. 

TRANSIT. 

Mortgaged  property  in,  where  located,  §  2960. 

Stoppage  in,  §§  3076-3080. 

TRANSPORTATION. 

Commissioners  of,  act  relating  to.     Appendix,  tit.  "Eailroads." 

TREASURE-TROVE.     See  Finder. 

TREE. 

Injuries  to,  treble  damages  for,  §  3346. 

Xegligeutly  setting  fire  to  woods,  penal  damages,  §  3346a. 

Standing  on  line,  §  834. 

Wholly  on  land  of  one,  §  833. 

TRESPASS. 

Accession  to  property  by  willful  trespasser,  §  1031. 
Damages  for  wrongfully  using  property  of  another,  §  1033. 
Product  of  materials  acquired  by  trespass,  to  whom  belongs,  §  1031. 
Timber,  cutting  or  injuring,  damages,  §  3346. 
Wagon-road  corporation,  on,  penalty  for,  §  520. 

TRIFLES. 

Law  disregards,  §  3533. 

TROVER. 

Conversion,  damages  for,  §§  3336,  3337,  3338. 

TRUST  COMPANIES.     See  Banks  and  Banking,  II. 

Acts  arid  proceedings  not  affected  by  failure  of  company  to  comply 

with  statute.     Appendix,  tit.  "Banking,"   §  97. 
Affidavits,  what  officers  may  make.     Appendix,  tit.  "Banking,"  §  90. 
Bond  or  security  not  required  of.     Appendix,  tit.  "Banking,"  §  94. 
Capital  stock  required  in  cities  of  less  than  one  hundred  thousand, 

§  290a. 
Capital  stock  required  in  cities  of  more  than  one  hundred  thousand, 

§  290a. 
Capital   stock,    amount    of,    required    to   be   subscribed   and    paid   in 

various  cities,  §  290a. 


INDEX.  1269 

TRUST  COMPANIES.      (Continued.) 

Capital  stock,  population  of  cities,  how  determined  for  fixing  of 
amount  of,  §  290a. 

Certificate  of  incorporation,  approval  of  superintendent  of  banks  be- 
fore issuance  of,  §  290a. 

Commercial  business,  capital  required  where  trust  company  does. 
Appendix,  tit.  "Banking,"  §  106. 

Corporations  doing  banking  and  trust  business  combined.  See  Banks 
and  Banking,  II. 

Definition  of.     Appendix,  tit.  "Banking,"  §  6. 

Definition  of  court  and  private  trusts.  Appendix,  tit.  "Banking," 
§101. 

Departmental  business  as  title  insurance  and  trust  company,  com- 
pany doing,  provisions  of  law  applicable.  Appendix,  tit.  "Bank- 
ing," §  107. 

Departmental  business  as  title  insurance  and  trust  company,  com- 
pany doing  subject  to  inspection  by  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  107. 

Departmental  business,  trust  company  doing,  compliance  with  pro- 
visions of  statute.     Appendix,  tit.  "Banking,"  §  106. 

Deposit  of  trust  funds  with,  under  order  of  court  and  discharge  from 
liability.     Appendix,  tit.  "Banking,"  §  91. 

Deposit  of  funds  with,  by  public  administrator  under  order  of  court 
and  withdrawal  of.     Appendix,  tit.  "Banking,"  §  92. 

Depost  with  state  treasurer  of  mortgages  or  deeds  of  trust,  of  ab- 
stracts of  title  or  insurance  policies  to  accompany.  Appendix, 
tit.  "Banking,"  §  99. 

Deposit  with  state  treasurer  of  mortgages  or  deeds  of  trusts,  fees  for 
examining  title.     Appendix,  tit.  "Banking,"  §  99. 

Deposits  with  state  treasurer  to  secure  performance  of  trusts.  Ap- 
pendix, tit.  "Banking,"  §  96. 

Deposit  with  state  treasurer  to  secure  performance  of  trust,  addi- 
tional where  trust  funds  over  $1,000,000.  Appendix,  tit.  "Bank- 
ing," §  98. 

Deposit  with  state  treasury  to  secure  performance  of  trusts,  with- 
drawal permitted  when.     Appendix,  tit.  "Banking,"  §  98. 

Discontinuance  of  business,  proceedings.  Appendix,  tit.  "Banking," 
§  103. 

Extension  or  shortening  of  corporate  existence,  approval  of  super- 
intendent of  banks  necessary,  §  290a. 

Foreign,  conditions  on  doing  business.     Appendix,  tit.  "Banking,"  §  7. 

Foreign  corporations,  power  to  act  as  trustees.  Appendix,  tit.  "Bank- 
ing," §  90. 

Guardian,  appointment  of  trust  company  as  applies  only  to  estate 
and  not  to  person.     Appendix,  tit.  "Banking,"  §  90. 

Increase  or  decrease  of  capital  stock,  approval  of  superintendent  of 
banks  necessary,  §  290a. 

Increase  or  decrease  of  number  of  directors,  approval  of  superintend- 
ent of  banks  necessary,  §  290a. 

Interest  on  deposits  with.     Appendix,  tit.  "Banking,"  §  95. 

Investment  of  capital  and  surplus,  how  made.  Appendix,  tit.  "Bank- 
ing," §  105. 

Investments,  liability  for.     Appendix,  tit.  "Banking,"  §  94. 

Mortgage  of  building  witli  state  treasurer  to  secure  performance  of 
trusts.     A])pendix,  tit.  "Banking,"  §  97. 

Oaths,  liow  made.     Ap]iendix,  tit.  "Banking,"  §  90. 

Officers  or  employees  of,  liability  of  on  failure  of  trust  companies  to 
perform.     Appendix,  tit.  "Banking,"  §  90. 


1270  INDEX. 

TRUST  COMPANIES.      (Continued.) 

Ordering  deposit  of  funds  with  trust  company  by  court  and  reduction 
of  bonds.     Appendix,  tit.  "Banli^ing,"  §  93. 

Paid-up  capital  required,  provision  as  to  repealed.  Appendix,  tit. 
"Banking,"  §  100. 

Powers  of.     Appendix,  tit.  "Banking,"  §  90. 

Report  by  to  superintendent  of  banks,  what  to  show.  Appendix,  tit. 
"Banking,  §  101. 

Secrecy  of  communications  concerning  private  trusts.  Appendix,  tit. 
"Banking,"  §  103. 

Setting  aside  of  capital  as  security  for  performance  of  trusts.  Ap- 
pendix, tit.  "Banking,"  §  90. 

Title  insurance  company  doing  trust  business.  See  Title  Insurance 
Companies. 

Trust  business,  private,  not  subject  to  inspection  or  supervision  by 
'  superintendent  of  banks.     Appendix,  tit.  "Banking,"  §  124. 

Trust  departments  of  title  insurance  companies,  inspection  and  ex- 
amination of.     Appendix,  tit.  "Banking,"  §  124. 

Trustees  under  deeds  of  trust  not  subject  to  supervision  of  superin- 
tendent of  banks.     Appendix,  tit.  "Banking,"  §  101. 

"Trust,"  effect  of  use  of  word,  provision  as  to  repealed.  Appendix, 
tit.  "Banking,"  §  104. 

"Trust"  or  "trustee,"  what  corporations  only  can  use  word,  §  290%. 

Trusts  classified  as  private  trusts  and  court  trusts.  Appendix,  tit. 
"Banking,"  §  101. 

Trust  funds  defined.     Appendix,  tit.  "Banking,"  §  98. 

Trust  fund  to  be  deposited  with  state,  mortgage  participation  certi- 
ficates or  securities  guaranteed  by  policies  of  mortgage  insurance 
to  be  accepted,  §  453fl;. 

Trusts,  court,  defined.     Appendix,  tit.  "Banking,"  §  101. 

Trusts,  court,  subject  to  inspection  by  superintendent  of  banks.  Ap- 
pendix, tit.  "Banking,"  §  101. 

Trusts,  private,  defined.     Appendix,  tit.  "Banking,"  §  101. 

Trusts,  private,  not  subject  to  inspection  by  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  101. 

What  corporations  may  act  as.     Appendix,  tit.  "Banking,"  §  90. 

When  only  can  use  name  "trust"  or  "trustee,"  §  29014. 

TRUST  DEEDS. 

Power  to  sell  in,  passes  to  assignee,  §  858. 
Power  to  sell  under,  assignee  may  exercise,  §  858. 
Trustees  under  not  subject  to  supervision  of  superintendent  of  banks. 
Appendix,  tit.  "Banking,"  §  101. 

TRUSTEES.     See  Trusts. 

TRUSTS.     See  Banks  and  Banking,  II;  Trust  Deeds. 
Absolute  grant,  when  deemed  to  be,  §  869. 
Accident,  involuntary  trust  arises  from,  when,  §  2224. 
Accumulations.     See  Accumulations. 

Adverse   interest,   trustee  not   to   have,   except   under  what   circum- 
stances, §  2230. 
Adverse  interest,  trustee  to  disclose,  §  2233. 
Adverse  trust  not  to  be  assumed  by  trustee,  §  2232. 
Agent,  trustee's  powers  as,  §  2267. 
Alienation,  suspension  by  trust,  what  is,  §  771. 
Alienation,  suspension  of.     See  Alienation. 
Annuity,  beneficiary  may  be  restrained  from  disposing  of,  §  867, 


INDEX.  1271 

TRUSTS.     (Continued.) 

Application  of  pavment  or  propertv,  when  one  must  see  to,  and  when 

not,  §  2244. 
Are  voluntary  or  involuntary,  §  2215. 
Assignment,  beneficiary  mav  be  restrained  from  disposing  of  interest, 

§  867. 
Author  of,  may  devise  and  transfer  property,  §  864. 
Beneficiary  defined,  §  2218. 

Beneficiary  may  be  restrained  from  disposing  of  property,  §  867. 
Beneficiary  may  enforce  performance  of  trust,  §  863. 
Beneficiary  mav  take   advantage  of  at  any  time  prior  to  rescission, 

§  2251. 
Beneficiary,  presumption  against  trustee  dealing  with,  §  2235. 
Beneficiary  takes  no  estate  or  interest,  §  863. 
Bona  fide  purchaser  from  trustee,  rights  of,  where  trust  omitted  from 

conveyance,  §  869. 
Bona  fide  purchaser  from  trustee  takes  absolute  title  when,  §  869. 
Bona  fide  purchaser,  grant  when  deemed  absolute  in  favor  of,  §  869. 
Bona  fide  purchaser  not  affected  bv  implied  or  resulting  trust,  §  856. 
Breach  of  trust,  measure  of  liability  for,  §§  2237,  2238. 
Care  and  diligence  required  in  executing  trust,  §  2259. 
Cemetery  may  hold  property  in  trust,  §§  612,  616. 
Charitable,  restrictions  on  power  of  devise,  §  1313. 
Classification  of,  §  2215. 

Code  prescribes  those  only  which  may  exist  in  realty,  §  847. 
Code  provisions,  what  apply  only  to  express  trusts  for  benefit  of  third 

person,  §  2250. 
Compensation  of  trustee,  §  2274. 
Confidential  relations,  trust  from,  §  2219. 
Consent,  mutual,  creates,  §  2251. 
Consent  to  modification  of,  §  2258. 
Convey  realty,  trust  to,  §  857. 

Corporation,  when  only  can  accept  and  '.-xecute  trust,  §  290 V^- 
Corporation,  when  onlv  can  use  "trust"  or  "trustee"  as  part  of  name, 

§  290  i/j. 
Co-trustees,  apportionment  of  compensation  among,  §  2274. 
Co-trustees,  death,  renunciation  or  discharge  of  one,  survival  to  others, 

§  2288. 
Co-trustees,  how  far  liable  for  each  other,  §  2239. 
Co-trustees  must  all  act,  §§  860,  2268. 

Co-trustees,  powers  vested  in  several,  how  exercised,  §  860. 
Co-trustees,  survivorship  between,  §  2288. 

Co-trustees,  survivors  exercise  powers  in  case  of  death,  §  860. 
Court  appointing  trustee  in  trustor,  §  2252. 
Created  only  by  writing  or  operation  of  law,  §  852. 
Creation  by  mutual  consent,  §  2251. 
Creditors,  surplus  liable  to,  when,  §  859. 
Damages  for  breach  of,  §§  2237,  2238. 
Damages  for  willful  holding  over  by  trustee,  §  3335. 
-  Death  of  co-trustee,  survivors  may  execute  powers,  J  860. 
Declaration  of,  expresses  its  nature,  etc.,  §  2253. 
Declaration   of,  in  writing  merges  prior  declarations,  §  2254. 
Declaration   of,  trustee  must  obey,  §  2258. 
Declarations  of  trustor  before  acceptance  as  part  of,  §  2254. 
Deeds  of  trust.     See  Trust  Deeds. 
Dei)0sit  in  trust  for  another,  rights  under.     Appendix,  tit.  "Banking," 

§16. 
Devise  of  property  in  case  of  failure  of,  §  864. 


1272  INDEX. 

TRUSTS,     (Continued.) 

.  Devise  of  property  subject  to,  §  864. 

Devisee  of  trust  property,  title  of,  §  865. 

Directions  of  trustor  except  as  modified  to  be  followed,  §  225S. 

Express,  acts  of  trustees  in  contravention  of,  void,  §  870, 

Express,  beneficiary  may  enforce,  §  863. 

Express,  beneficiary  takes  no  title  or  interest,  §  863. 

Express,  bona    fide   purchaser   from    trustee    takes    free   from   when, 
§  869. 

Express,  for  what  purposes  may  be  created,  §  8.57. 

Express,  interest  remaining  in  grantor  of,  §  866. 

Express,  omission    of,    from    conveyance    to    trustees,    rights    of   pur- 
chasers from  trustees,  §  869. 

Express,  terminated  when,  §  871. 

Express,  title  of  grantor  of,  §  866. 

Express,  to  receive  rents  and  profits,  and  accumulate,  §  857. 

Express,  to  receive  rents  and  profits,  and  apply  proceeds,  §  857. 

Express,  to  sell,  lease,  or  mortgage  realty,  §  857. 

Express,  trustee  to  have  whole  estate,  §  863. 

Express,  when   deemed   absolute  grant  in  favor  of  purchasers   from 
trustees,  §  869. 

Extinguished  how,  §§  871,  2279. 

Failure  of  trust,  devise  or  transfer  of  property  in  ease  of,  §  864. 

Fraud,  involuntary  trust  arises  from,  when,  §  2224. 

Grantee  of  property  subject  to,  title  of,  §  865. 

Grant  of  property  in  case  of  termination   of,  §  864. 

Grant  of  property  subject  to,  by  author  of,  §  864. 

Grantor  of,  interest  remaining  in,  §  866. 

Grantor  of  trust  property,  title  of,  §  865. 

Income  of  trust  property  undisposed  of,  who  entitled  to,  §  733. 

Holding  over  after  termination  of,  damages  for,  §  3335. 

How  only  created,  §  852. 

Implied,  not  to  prejudice  purchaser  of  encumbrancer,  §  856. 

Implied,  resulting  trust   presumed   on   payment    of   consideration   by 
third  person,  §  853. 

Implied,  trusts  may  arise  by  implication  of  law,  §  852. 

Indemnification  of  trustee  for  expenses  incurred,  §  2273. 

Injunction  in  cases  respecting,  §  3422. 

Insanity,  discharge  of  trustee  for,  §  2282. 

Insurance  by  trustee,  form  of  policy,  §  2589.  ^ 

Interest,  trustee's  liability  to  beneficiary  for,  §  2237. 

Invest  funds,  interest,  compound,  on   omission  to,  §  2262. 

Invest  funds,  interest  on  omission  to,  §  2262. 

Investment  of  trust  funds,  duty  as  to,  §  2261. 

Investments,  in    mortgage    participation    certificates    and    securities 
guaranteed  by  policies  of  mortgage  insurance,  §  453flf, 

Investments.     See    Investments. 

Involuntary  and  voluntary,  are,  §  221.5. 

Involuntary  arises  from  negligence,  fraud,  mistake,  etc.,  when,  §  2224. 

Involuntary,. by  wn'ongful  detention,  §  2223. 

Involuntary,  defined,  §  2217. 

Involuntary,  what  creates,  §§  2223,  2224. 

Involuntary  trustee,  compensation  of,  §  2275. 

Involuntary  trustee,  expenses  of,  reimbursement,  §  2275. 

Involuntary  trustee,  juirchaser  with  notice  is,  §  2243. 

Involuntary  trustee,  rights  of,  §  2275. 

Involuntarv  trustee,  when  third  person  is,  §  2243. 

Involuntary  trustee,  who  is,  §§  2223,  2224,  2243. 


INDEX.  -  l2t3 

TRUSTS.     (Continued.) 

Kinds  of,  §  2215. 

Lease,  to,  may  be  created,  §  857. 

Livestock,  combinations  to  obstruct  sale  of,  prevented.  Appendix,  tit. 
"Animals." 

Mingling  trust  property,  liability,  §  2236. 

Modified,  how,  §  2258. 

Mortgage,  to,  may  be  created,  §  857. 

Mortgage  participation  certificates  and  securities  guaranteed  by 
policies  of  mortgage  insurance  as  legal  investments  for  trust 
funds,  §  453ff. 

.Xature,  extent  and  object  expressed  in  declaration  of  trust,  §  2253. 

None  can  be  created  except  those  specified  in  code,  §  847. 

OflBcer  appointing  trustee  is  trustor,  §  2252. 

Omission  of  from  conveyance,  rights  of  bona  fide  purchasers  from 
trustees,  §  869. 

Operation  of  law,  trust  may  be  created  by,  §  852. 

Parties  to,  how  designated,  §  2218. 

Powers  vested  in  several,  execution  of,  §  860. 

Powers  vested  in  several,  survivors  may  exercise  on  death,  §  860. 

Presumption  against  trustee  on  dealing  with  beneficiary,  §  2235. 

Property,  creator  of  trust  may  devise  or  transfer.  §  864. 

Purchase  by  trustee  of  claims  against  trust  fund,  §  2263. 

Purchaser  of  property  with  notice  is  involuntary  trustee.  §  2243. 

Purposes  for  which  may  be  created,  §  2220. 

Realty,  code  prescribes  those  only  which  may  exist  in,  §  847. 

Realty,  express  trusts,  what  may  be  created  in,  §  857. 

Recording  transfer  in  trust,  when  required,  §  1164. 

Rents  and  profits,  to  receive,  and  applv  proceeds,  maA-  be  created, 
§  857. 

Rents  and  profits,  to  receive,  beneficiary  may  be  restrained  from  dis- 
posing of,  §  867. 

Rents  and  profits,  to  receive,  creditors  entitled  to  surplus,  when,  §  859. 

Result  from  negligence,  fraud,  accident,  mistake,  etc..  when,  §  2224. 

Resulting,  not  to  prejudice  purchaser  or  encumbrancer,  §  856. 

Resulting,  presumed  when  consideration  for  realty  paid  by  third  per- 
son, §  853. 

Revocation,  power  of,  to  be  strictly  pursued,  §  2280. 

Revocation,  right  of,  §  2280. 

Sell,  to,  and  apply  proceeds,  may  be  created,  §  857. 

Statute  of  frauds,  transfer  of  interest  in  trust  must  be  in  writing, 
§  1135. 

Stockholder's  liability,  trust  funds  whether  can  be  held  for,  §  322. 

Successor,  duty  of  trustee  as  to  appointment  of,  §  2260. 

Superior  court  as  trustee,  §  2289. 

Superior  court,  discretion  of,  as  to  number  of  trustees  appointed, 
§  22S9. 

Superior  court  to  fill  vacancies.  §§  2287,  2289. 

Surplus  of  rents  and  profits  liable  to  creditors  when,  §  859. 

Survivorship  between  co-trustees,  §§  860,  2288. 

Suspension  of  power  to  alienate  the  subject  of,  what  is,  §  771. 

Termination  by  entire  fulfillment  of  object,  §  2279. 

Termination  of,  devise  or  transfer  of  property  in  case  of,  §  864. 

Termination   of  estate  of  trustee  when  purpose  of  trust  ceases,  §  871. 

Termination  where  object  becomes  impossible  or  unlawful,  §  2279. 

Third  persons,  when  involuntary  trustees,  §  2243. 

Third  jierson,  when  must  see  to  application  of  trust  pi-oi»erty,  and 
when  not,  §  2244. 


1274  INDEX. 

TRUSTS.      (Continued.) 

Title  of  grantee  or  devisee  of  trust  property,  §  S65. 

Title  remaining  in  grantor,  §  866. 

Title  vests  in  trustee  in  case  of  express  trust.  §  863. 

Transactions  forbidden  to"  trustee,  §  2230. 

Transfer  of  interest,  beneficiary  may  be  restrained  from  making, 
§867. 

Transfer  of  interest  in,  how  made,  §  1135. 

Transfer  of  interest  in  to  be  in  writing,  §  1135. 

Trust  companies.     See  Banks  and  Banking,  II;  Trust  Companies. 

Trust  deeds.     See  Trust  Deeds. 

Trustee,  act  authorizing  executor  to  act  as.  Appendix,  tit.  "Corpora- 
tions." 

Trustee,  acts  of,  in  contravention  of  trust,  void,  §  870. 

Trustee,  acts  within  scope  of  authority  bind  property,  §  2267. 

Trustee,  adverse  interest,  duty  to  disclose,  §  2233. 

Trustee,  adverse  interest,  not  to  have  except  under  what  circum- 
stances, §  2230. 

Trustee,  adverse  interest,  removal  because  of,  §  2233. 

Trustee,  adverse  trust,  not  to  be  assumed  by,  §  2232. 

Trustee,  agent,  powers  of,  as,  §  2267. 

Trustee,  all  trustees  must  act,  §  2268. 

Trustee,  appointed  by  court  or  public  officer,  court  or  officer  is  trustor, 
§  2252. 

Trustees,  associations,  trustees  of.     See  Associations. 

Trustee,  authority  of,  §§  867,  2267. 

Trustees,  beneficiary  may  nominate  when,  §  2287. 

Trustee,  breach  of  trust,  measure  of  liability  for,  §§  2237,2238. 

Trustee,  care  required  of,  §  2259. 

Trustee,  compensation,  direction  as  to  in  declaration,  §  2274. 

Trustee,  compensation  where  declaration  silent,  §  2274. 

Trustee,  corporation  authorized  to  act  as,  minimum  capital  required 
and  affidavit  as  to,  §  290a. 

Trustee,  co-trustee.     See  ante,  this  title. 

Trustee,  death  vacates  office,  §  2281. 

Trustee,  defined,  §  2218. 

Trustee,  degree  of  care  and  diligence  required  of,  §  2259. 

Trustee,  deposit  of  money  in  trust  company  and  discharge  of.  Ap- 
pendix, tit.  "Banking,"  §  91. 

Trustee,  deposit  of  assets  in  trust  company  and  reduction  of  bonds. 
Ajjpendix,  tit.  "Banking,"  §  93. 

Trustee,  discharge  before  trust  executed,  duty  as  to  appointment  of 
successor,  §  2260. 

Trustee,  discharge  of,  grounds  of,  §  2282. 

Trustee,  discharge  vacates  office,  §  2281. 

Trustee  discharged  how,  §  2282. 

Trustee,  discretionary  powers,  control  over,  §  2269. 

Trustee,  duty  of  as  to  appointment  of  successor,  §  2260. 

Trustee,  estate  ceases  when,  §  871. 

Trustee,  estate,  termination  of,  §  871. 

Trustee,  expenses,  entitled  to  reimbursement  for,  §  2273.* 

Trustee,  expenses,  reimbursement  for,  where  unlawful,  §  2273. 

Trustee,  fraud,  when  guilty  of,  §  2234. 

Trustee,  highest  good  faith  required  of, §  2228. 

Trustee  holding  over  after  termination  of  trust,  damages  for,  §  3335. 

Trustee,  indemnification  of,  for  expenses  incurred,  §  2273. 

Trustee,  insurance  by,  form  of  policy,  §  2589. 

Trustee,  investments,  duty  to  make,  §  2261. 


INDEX.  1275 

TRUSTS.      (Continued.) 

Trustee,  investments,  failure  to  make,  liability  for  interest,  §  2262. 

Trustee,  involuntary,  rights  of,  §  2275. 

Trustee,  involuntary,  who  is,  §  2223. 

Trustees,  involuntary.     See  also,  ante,  Involuntary,  this  subject. 

Trustee,  liability  for  breach  of  trust,  measure  of,  §§  2237,  2238. 

Trustee  mingling  trust  property,  liability  of,  §  2236. 

Trustee,  must  not  gain  any  advantage  over  beneficiary,  §  2228. 

Trustee  must  obey  directions  except  as  modified,  §  2258. 

Trustee  not  to  assume  trust  adverse  to  beneficiary,  §  2232. 

Trustee  not  to  use  influence  to  his  advantage,  §  2231. 

Trustee,  not  to  use  property  except  for  purpose  connected  with  trust, 
§  2229. 

Trustee  not  to  use  property  for  own  profit,  §  2229. 

Trustee,  number  of  trustees,  discretion  of  superior  court  in  appoint- 
ing, §  2289. 

Trustee,  obligation  to  good  faith,  §  2228. 

Trustee,  office  vacated  by  death  or  discharge,  §  2281. 

Trustee,  powers  as  agent,  §  2267. 

Trustee,  preference  of,  in  awarding  custody  of  child,  §  246. 

Trustee,  presumption  against,  on  dealing  with  beneficiary,  §  2235. 

Trustee's  proxies,  trustee  may  give,  §  321b. 

Trustee's  shares  of  stock  in  name  of  trustee,  how  represented,  §  313. 

Trustee's  purchase  of  claims  against  trust  funds,  effect  of,  §  2263. 

Trustee,  removal  because  of  adverse  interest,  §  2233. 

Trustee,  removal  of  by  court,  power  of,  §  2283. 

Trustee,  resignation  of,  §  2283. 

Trustee,  sale  by,  in  contravention  of  trust  void,  §  870. 

Trustee,  superior  court  as,  §  2289. 

Trustee,  superior  court  when  to  appoint  and  direct  execution  of  trust, 
§  2289. 

Trustee  takes  whole  estate,  §  863. 

Trustee,  title  of,  ceases  when,  §  871. 

Trustee  to  have  no  adverse  interest,  except  in  what  eases,  §  2230. 

Trustee,  to  what  trustees  code  applies,  §  2250. 

Trustee,  transactions  adverse  to  beneficiary,  forbidden,  §  2230. 

Trustee,  transactions  where  beneficiary  interested  forbidden,  §  2230. 

Trustee,  transactions  where  beneficiary  interested,  what  permitted, 
§2230.  . 

Trustees,  vacancy  in  trusteeship,  beneficiary  over  fourteen  may  nomi- 
nate trustee,  §  2287. 

Trustees,  vacancy  in  trusteeship,  beneficiary's  nominee,  court  to  ap- 
point, where,  §  2287. 

Trustees,  vacancy  in  trusteeship,  superior  court  may  appoint  trustee, 
§  2287. 

Trustees,  vacancies,  superior  court  to  fill  when,  §  2287. 

Trustee,  what  constitutes  one  a,  §  2219. 

Trustor,  court  or  officer  is,  when  trustee  appointed  by,  §  2252. 

Trustor  defined,  §  2218. 

Undue  infiuence,  involuntary  trust  arises  from,  when,  §  2224. 

Vacancy  in  trusteeship  may  arise  from  death  or  discharge,  §  2281. 

Vacant  trusteeship  filled  by  court,  when,  §§  2287,  2289. 

Violation  of  trust,  involuntary  trust  arises  from,  when,  §  2224. 

Voluntary  and  involuntary,  are,  §  2215. 

Voluntary,  defined,  §  2216. 

Voluntary,  how  created  as  to  trustee,  §  2222. 

Voluntary,  how  created  as  to  trustor,  §  2221. 

What  only  can  exist,  §  847. 

When  deemed  absolute  grant  in  favor  of  bona  fide  purchasers,  §  869. 


1276  INDEX. 

TRUSTS.      (Continued.) 

Wrongful  act,  trust  arising  from,  §  2224. 

Wrongful  detention,  involuntary  trust  arises  from,  §  2223. 

TUNNEL  CIiAIM.     See  Mines  and  Mining. 

TURNPIKE  CORPORATION.     See  Wagon-road  Corporation. 

TYPEWRITING. 

Writing  includes,  §  1-i. 

u 

UNCLAIMED  DEPOSITS. 

Statement  of  to  be  published  b}'  banks,  §  583b. 

UNDERGROUND  RAILWAY. 

Franchise  for,  majority  of  frontage  to  sign  petition,  §  4-92. 
Franchise  for,  terms  and  conditions,  §  492. 
Franchise  may  be  granted  for  by  supervisors,  §  492. 
Power  to  grant  franchise  for,  §  493. 

UNDERTAKING.     See  Guaranty;  Indemnity;   Suretyship. 
In  legal  proceedings,  sureties  on,  called  bail,  §  27S0. 

UNDERWRITERS.     See  Fire  Patrol. 

UNDUE  INTLUENCE. 

Consent  obtained  by  voidable,  §§  1567,  1568. 

Contract  obtained  through,  voidable,  §§  1567,  1568,  1689. 

Defined,  §  1575. 

Presumption  of,  against  trustee,  §  2235. 

Kescission  for,  §  1689. 

Thing  gained  by,  held  in  trust,  §  2224. 

Trust  arising  from,  §  2225. 

What  constitutes,  §  1575. 

Wills  procured  or  revoked  through.  §  1272. 

UNINCORPORATED  ASSOCIATIONS.     See  Associations;  Benefit  Soci- 
eties; Protective  Associations. 

UNITED  STATES. 

Preference  to,  by  carrier,  §  2171. 

UNITED  STATES  COURTS. 

Proceedings  in,  not  enjoined,  §  3423. 

UNIVERSITY.     See  College. 

UNLAWFUL. 

Alternative  in  contract,  effect  of,  §  1451. 

Condition  in  instrument,  renders  void.  §  709. 

Condition  in  obligation  void,  §  1441. 

Contracts.     See  Contracts. 

Conveyances.     See  Fraudulent  Conveyance. 

Termination  of  trust  where  object  is,  §  2279. 

Transfers,  §§  1227-1231.     See  Fraudulent  Conveyance. 

UNLAWFUL  TRANSFERS.     See  Fraudulent  Conveyance. 

UNRECORDED  INSTRUMENT. 

Valid  between  parties  and  those  with  notice,  §  1217. 


INDEX.  1277 

USAGE. 

Agent  to  conform  to,  §  2349. 

Employee,  duty  of  to  conform  to,  §  1982. 

General,  parties  to  insurance  contract  bound  to  know,  §  2566. 

Meaning  of  words  fixed  by,  §  1644. 

USE  AND  OCCXJPATION. 

Wrongful  occupation  of  realty,  damages  for,  §  3334. 

USES  AND  TRUSTS.     See  Charitable  Uses;  Trusts. 

Uses,  none  exist  except  those  specified  in  code,  §  847. 


V 

VACANCY.     See  Trusts. 

Incumbency    of    corporation    sole,    effect    of,  §  602a.     See    Religious, 
Social,  and  Benevolent  Corporations. 

VALUE.     See  Damages. 

How  estimated,  §§3353-3355. 

VEINS.     See  Mines  and  Mining. 

VENDEE'S  LIEN.     See  Conveyance. 

VENDOR  AND  VENDEE.     See  Conveyance. 

VENDOR'S  LIEN.     See  Conveyance. 
Homestead,  liability  for,  §  1241. 

VERIFICATION. 

Report  of  building  and  loan  association  to  be  verified,  §  645. 
Cross-complaint  in  divorce,  of,  §  128. 

Homestead,  petition  for  appraisement  of  must  be  verified,  §  1246. 
Reports  of  mortgage  insurance  companies  to  insurance  commissi<itier 
to  be  verified,  §  453gg. 

VESSEL.     See  Shipping. 

VESTED. 

Future  interest,  when,  §  694. 
Rights  not  affected  by  code,  §  6. 

VETERINARY  HOSPITAL  PROPRIETORS.     See  Veterinary  Surgeons. 
Lien  for  services,  have,  §  3051. 

Lien  for  services  is  dependent  on  possession,  §  3051. 
Lien  for  services,  sale  for,  manner  of,  and  disposition   of  proceeds, 
§  3052. 

VETERINARY  SURGEON.     See  Veterinary  Hospital  Proprietors. 
Lien  is  dependent  on  possession,  §  3051. 
Lien  for  services,  have,  §  3051. 

Lien  of  for  services,  sale  for,  manner  of,  and  disposition  of  proceeds, 
§  3052. 

VIGILANT. 

Preference  given  to  the, §  3527. 

VITICULTURAL  ASSOCIATIONS.     See    Non-profit   Co-operative,   Agri- 
•cultural,  Vitieultural,  and  Horticultural  Associations. 

VOID  CONTRACTS.     See  Contracts,  VI. 


1278  INDEX. 

VOLUNTARY  CONVEYANCE.     See  Fraudulent  Conveyance. 
Consideratiou  not  necessary, §  1040. 
Defined,  §  1040. 

Subject  to  rules  concerning  contracts,  §  1040. 
Validity  of,  §§  1040,  3442. 

VOLUNTARY  TRANSFER.     See  Fraudulent  Conveyance. 
Consideration  not  necessary  to  validity,  §  1040. 
Defined,  §  1040. 

Subject  to  rules  concerning  contracts,  §  1040. 
Validity  of,  §§  1040,  3442. 

VOYAGE.     See  Insurance,  XV;  Shipping. 

w 

WAGERING. 

Insurance,  void,  §  2558. 

WAGES.     See  Master  and  Servant;  Shipping. 
For  services  without  employment,  §  2078. 
Lien  for.     See  Services. 
Minor,  of,  §  212. 

Personal  representative  of  mate  or  seamen  entitled  to,  §  2062. 
Wife's  earnings,  not  liable  for  debts  of  husband,  §  168. 
Wife's  earnings,  when  separate  property,  §  169. 

WAGON-ROAD  CORPORATION. 

Amounts  to  be  subscribed  and  paid  in,  §§  293,  294. 

Articles  of,  to  set  forth  what,  §  291. 

Bridges  and  ferries  on  streams,  building  of,  §  514. 

Bridges  and  ferries,  repair  of,  §  514. 

Construction  of  road,  manner  of,  §  513. 

Crossings,  how  constructed,  §  513. 

Expense  of  opening  and  changing  highway's,  §  513. 

Franchise,  forfeiture  of,  §§  514,  516. 

Horseless  vehicles,  franchises  for,  consent  of  majoritv  of  frontage, 

§  524. 
Horseless  vehicles,  franchise,  power  to  grant,  §  524. 
Map  and  survey,  approval  of  and  rights  under,  §  513. 
Map,  entry  of,  on  record,  §  513. 
Map  of  route  to  be  filed,  §  513. 
Mortgage,  power  to  execute,  §  522. 

Mortgage,  two-thirds  vote  of  capital  stock  necessary,  §  522. 
Mortgage,  validity  of,  §  522. 
Natural  jaerson  may  own  road,  §  523. 
Natural  person  owning,  rights  and  liabilities,  §  523. 
Oath  as  to  amount  subscribed  and  paid  in,  §  295. 
Opening  highway  taken,  duty  as  to,  §  513. 
Penalty  for  avoiding  tolls,  §  519. 
Penalty  for  charging  unauthorized  tolls,  §  514. 
Penalty  for  trespass  on  property  of,  §  520. 
Posting  date  of  franchise,  rates  of  toll,  etc.,  §  516. 
Public  road  or  highway,  tolls  not  to  be  collected  on,  §  515. 
Revenue,  to  be  how  appropriated,  §  521. 
Road,  how  must  be  laid  out,  §  512. 
Road  not  to  exceed  one  hundred  feet  in  width,  §  513. 
Subscription,  amount  of  as  prerequisite  to  filing  articles,  §  293. 


]  INDEX.  1279 

WAGONiOAD  CORPORATION.     (Coutiiuiea.) 

Sur\T  and  map  to  be  filed  and  approved  by  supervisors,  §  513. 
Tenfr  cent  of  amount  subscribed  to  be  paid,  §  294. 
Tollttes,  manner  of  construction,  §  513. 
.     Tollatherer  may  detain  persons  until  toll  paid,  §  517. 
Tollatherer,  punishment  for  taking  illegal  tolls,  §  518. 
Tollatherer,  punishment  for  unreasonably  delaying  person,  §  518. 
Toll  evading  and  its  effect,  §  519. 
Tol!  illegal,  punishment  for  taking,  §§  514,  518. 
Tolj  limit  upon  amount  of,  §  514. 
Toll  maximum  and  minimum  rate  of,  §  514. 
Tojmay  be  charged,  §  514. 

To]  none  to  be  charged  on  highways  or  public  road,  §  515. 
Toi  punishment  for  avoiding,  §  519. 
Toj  rates  of  to  be  posted,  §  516. 
To[  supervisors  to  fix  rate  of,  §  514. 
To  to  be  reduced,  when,  §  521. 
Tifiass  on  property  of,  penalty  for,  §  520. 
Wh  of  road,  limit  on,  §  513. 

WAI^?l. 

C«  provisions,  right  to  waive,  §  3268. 

Ctnunication  in  insurance,  right  to,  how  waived,  §  2567. 
Cract  waiving  liability  for  negligence  void,  §  1970. 
Dand  by  pledgor  or  debtor,  of,  §  3004. 

Dand  of  performance,  waiver  of  by  refusal  to  perform,  §  3004. 
Er,  waiver  of  right  to  object  to,  by  acquiescence,  §  3516. 
Irest  is  waived  by  acceptance  of  principal,  §  3290. 
I;  may  be  waived,  when  and  when  not,  §  3513. 
I,  right  to  waive,  §  3513. 
Zatic  cannot  lose  rights  by,  §  40. 

iWce  of  election  of  directors  of  corporation,  waiver  of,  §§  302,  303. 
Mce  of  loss,  waiver  of  defects  in,  §  2635. 

Njice  of  loss,  waiver  of  delay  in,  §  2636.  ^ 

/  JNjice  of  sale  of  pledged  property,  of,  §  3003. 
/  Ofections  to  offer  of  performance,  of,  §  1501. 
0|ion  as  to  delivery  of  goods,  of,  §  1756. 
Prliminary  proofs  of  loss,  waiver  of  defects  in,  §  2635. 
PnVininary  proofs  of  loss,  waiver  of  delay  in  presenting,  §  2636. 
Prestntmeut  and  notice,  of,  §§  3159,  3160. 
Protest,  of,  effect  of,  §  3160. 
Prov  sions  of  code,  of,  by  stipulation,  §  3268. 
-Sale  for  delinquent  assessment,  waiver  of,  §  349. 
Vendor's  lien,  transfer  of  contract  as  a  waiver  of,  §  3047. 

/WAR, 

/  Dissolves  partnership,  §  2450. 

WARDS.     See  Guardian  and  Ward. 

WAREHOUSEMEN. 

Act  relating  to  warehouse  and  wharfinger  receipts  and  other  matters 

pertaining  thereto,  §  1858,  note. 
Carrier's  liability  as,  §  2120. 
Carrier's  liability  ceases  on  delivery  to,  §  2121. 
Felony,  violation  of  law  by,  §  1858f. 
Fire,  when  only  liable  for  loss  by,  §  1858e. 
Penalties  and  liabilities  for  violating  statute,  §  1858f. 
Property  not  to  be  delivered  without  indorsement,  on  receipt,  §  1858c. 


1280  INDEX. 

WAREHOUSEMEN.      (Continued.) 

Property  not  to  be  delivered  witliout  order  where  non-ne|tiable  re- 
ceipt issued,  §  1858d. 

Property  not  to  be  removed  without  written  consent  of  pson  hold- 
ing receipt,  §  1858a. 

Receipts  are  negotiable  and  non-negotiable,  §  1858b. 

Eeeeipts,  consent  of  holder  necessary  to  removal  of  proper,  §  1858a. 

Eeceipts,  negotiable  and  non-negotiable,  may  be  issued,  §  58b. 

Eeeeipts,  negotiable,  claim  not  indorsed  on,  not  to  be  allow.  §  1858c. 

Receipts,  negotiable,  indorsement  of  how  made  and  effect  i  §  18o8b. 

Eeeeipts,  negotiable,  property  not  to  be  delivered  withoiindorse- 
ment  on,  §  1858c. 

Receipts,  negotiable,  property  transferable  by  indorsement  o§  1858h. 

Receipts,  non-negotiable,  must  be  so  stamped,  §  1858b. 

Eeceipts,  non-negotiable,  property  not  to  be  delivered  excepn  order, 
§  18o8d. 

Receipts  not  to  be  issued  unless  property  in  warehouse,  §  IJ. 

Receipts,  second  receipt  not  to  be  issued  while  first  ouanding, 
§  1858. 

Receipts,  warehousemen  violating  law  regarding  liability  (^  1858f. 

Receipt*,  what  to  state,  §  1858b.- 

WAREHOUSES. 

Receipts,  negotiable,  amount  and  date  of  delivery  to  be  intsed  on, 

§  1858c. 
Receipts,  "non-negotiable,"'  to  be  so  stamped,  §  1858b. 

WARRANTY. 

Agent's  authority  as  to,  §§  2323,  2324. 

Agent's  authority,  of,  §  2342. 

Agent's  authority,  of,  damages  for  breach  of,  §  3318. 

Auctioneer,  authority  of  as  to,  §  2362. 

Collateral.     See  Collateral  Warranties. 

Collection,  warranty  of,  §  2800. 

Covenants  of,  run  with  land,  §  1463. 

Damages  for  breach  of  covenant  of,  §  3304. 

Damages  for  breach  of  warranty  of  fitness,  §  3314. 

Damages  for  breach  of  warranty  of  quality,  §  3313. 

Damages  for  breach  of  warranty  of  title  to  personalty,  §  332. 

General,  form 'of,  §  1734. 

General,  included  in  agreement  to  give  usual  covenants,  §  7733. 

Good-will,  warranty  on  sale  of,  §1776. 

Indorser,  by,  §  3116. 

In  policies.     See  Insurance,  VII. 

In  policy,  violation  of,  effect  of,  §§  2610,  2611. 

Judicial  sale,  on,  §  1777. 

Lineal  and  collateral  abolished,  §  1115. 

Lineal.     See  Lineal  Warranties. 

Money,  of.  on  exchange,  §  1807. 

Policy  of  insurance,  form  of.  §  2604. 

Sale  of  good-will,  warranty  on,  §  1776. 

Sale  of  written  instrument,  warranty  in,  §  1774. 

Sales,  in.     See  Sales. 

Seaworthiness,  implied,  of,  §  2681. 

That  ship  will  carry  neutral  papers,  §  2688. 

WASTE. 

Grantee's  or  devisee's  right  to  recover  for,  §  821. 
Life-tenant  must  not  injure  inheritance,  §  SIS. 


INDEX.  1281 

WASTE.     (Contimied.) 

Mortgagor  must  not  commit,  §  2929. 

Eemedies  of  remaindermen  or  reversioners  for,  §  826. 

WATER  AND  CANAL  CORPORATIONS.     See  Water. 

Bridges,  duty  to  maintain,  §  551. 

Bridges  over  flumes  or  canals,  failure  to  repair,  remedy,  §  551. 

Canals,  flumes,  etc.,  not  to  obstruct  highways,  §  551. 

City  or  town,  contract  to  supply,  authority  required,  §  548. 

City  or  town,  contract  to  supply,  exclusive  right  not  to  be  granted, 
«  §548. 

City  or  town,  contract  to  supply,  limit  upon  term  of,  §  548. 

City  or  town,  contract  to  supply,  rates  may  still  be  regulated,  §  548. 

City  or  town,  contract  to  supply,  validity,  §  548. 

Distinctions  not  to  be  made  in  supplying  water,  §  549. 

Duties  of,  in  furnishing  cities,  §  549. 

Duty  to  supply  water  on  demand,  §  549. 

Duty  to  supply  water  without  distinction  of  persons,  §  549. 

Fire,  water  to  be  furnished  free  in  case  of,  §  549. 

Fire,  water  to  be  furnished  in  ease  of,  §  549. 

Flumes,  duty  as  to,  §  551. 

Great  necessity,  water  to  be  furnished  free  in  case  of,  §  549. 

Highway,  must  not  obstruct,  §  551. 

Irrigation  corporation,  duties  of,  §  552. 

Irrigation,  right  to  continued  use  of  water  for,  §  552. 

Irrigation,  right  to  flow  and  use  of  water  a  perpetual  easement,  §  552. 

Irrigation,  right  to  water  for,  sold  by  irrigating  company,  §  552. 

Maintenance  of  flow  of  water  to  canal  intakes.     See  Waters. 

May  provide  that  stock  is  appurtenant  to  land,  §  324. 

May  provide  water  will  be  sold  to  stockholders  only,  §  324. 

Pipes,  duties  as  to,  §  551. 

Bates,  city  or  town  may  regulate   though   contract  made,  §  548. 

Rates  to  be  reasonable,  §  549. 

Rules  relating  to  delivery  of  water,  supervisors  may  prescribe,  §  549. 

Stock,  appurtenant  to  land,  how  transferred,  §  324. 

Supervisors  may  prescribe  rules  for,  §  549. 

Transfer  of  stock  of  water  or  irrigation  companies,  right  of  and  how 
made,  §  324. 

Water  in  case  of  fire  free  of  charge,  §  549. 

WATER  COMPANIES.     See  Water  and  Canal  Corporations. 
Transfer  of  stock,  right  of  and  how  made,  §  324. 

WATERS.     See  Water  and  Canal  Corporations;  Water  Companies. 
Alluvion,  defined,  §  1014. 
Alluvion,  ownership  of,  §  1014. 

Appropriation,  abandoned  or  lost  rights  not  revived  by  code,  §  1416. 
Appropriation  and  use  of  waters  flowing  out  of  state,  §  1410a. 
Appropriation  by  cities,  confirmation  of,  §  1416. 
Appropriation  by  city,  work  to  be  done  in  case  of,  §  1416. 
Appropriation,  change   of   place   of   diversion,  right  and  manner   of, 

§  1415. 
Appropriation,  changing  tise,  §  1412. 
Appropriation,  completion  of,  what  meant  by,  §  1417. 
Appropriation,  completion  of  works,  §  1416. 
Appropriation,    condemnation    proceedings    within    what    time    to    be 

commenced,  §  1416. 
Appropriation,  diligence  in  prosecuting  work,  §§  1416,  1420,  1422, 

Civ.  Code — 81 


1282  INDEX. 

WATERS.      (Continued.) 

Appropriation,  failure  to  comply  with  rules,  §  1419. 

Appropriation,  first  in  time,  first  in  right,  §  1414. 

Appropriation,  forfeiture  for  failure  to  comply  with  statute,  §§  1419, 
1420. 
.   Appropriation  for  generation  of  power,  limit  on  time  for  which  may 
be  acquired,  §  1410. 

Appropriation  for  generation  of  power,  time  for  development  of 
works,  §  1416. 

Appropriation  must  be  for  useful  purpose,  §  1411. 

Appropriation,  notice  of,  recording,  §§  1415, 1421. 

Appropriation,  notice  of,  requisites  of,  §  1415. 

Appropriation,  notice  to  be  posted,  §  1415. 

Appropriation,  point  of  diversion  may  be  changed,  §  1412. 

Appropriation,  proceedings  where  point  of  diversion  is  on  public  land, 
§  1422. 

Appropriation,  recording  notices  of,  §  1421. 

Appropriation,  right  ends  where  not  used  for  useful  purpose,  §  1411. 

Appropriation,  right  in  stream  may  be  acquired  by,  §  1410. 

Appropriation,  right  to  acquire  use  of  by,  §  1410. 

Appropriation,  right  under,  relates  to  time  notice  posted,  §  1418. 

Appropriation,  time  to  commence  works,  §§  1416,  1422. 

Appropriation,  time  to  commence  works  when  route  or  point  of  di- 
version on  public  land,  §  1422. 

Appropriation,  time  to  commence  works  where  debris  commissioners 
recommend  dam,  §  1416. 

Appropriation,  time  to  commence  works  where  necessary  to  begin 
condemnation  proceedings  against  adverse  claimants,  §  1416. 

Appropriation,  turning  waters  into  other  natural  channels  and  re- 
claiming, §  1413. 

Appropriation,  work  completion  of,  meaning  of,  §  1417. 

Appropriation,  work  to  be  prosecuted  diligently  to  completion, 
§§  1416,  1420,  1422. 

Avulsion,  right  to  reclaim  land,  §  1015. 

Boundaries,  as,  rights  of  owners,  §  830. 

Canal  intakes,  maintenance  of  flow  of  stream  to,  right  of,  §  1410b. 

Canal  intakes,  maintenance  of  flow  of  water  to,  plans  of  water  com- 
mission or  of  reclamation  board  not  to  be  interfered  with, 
§  1410b. 

Canal  intakes,  maintenance  of  flow  of  water  to,  what  acts  may  be 
done  in  preserving,  §  1410b. 

Canal  intakes,  maintenance  of  flow  of  water  to,  what  uses  not  to  be 
interfered  with  in,  §  1410b. 

Changing  use.  §  1412. 

Completion  of  diversion,  defined,  §  1417. 

Diligence  in  appropriating  required,  §§  1416,  1420. 

Diversion,  change  of  place  of,  manner  of,  §  1415. 

Diversion,  point  of  may  be  changed,  §§  1412,  1415. 

Easement  of  having  flow  without  disturbance,  §  801. 

Easement  to  receive  and  discharge  on  land,  §  801. 

Easement  to  take,  §§  801,  802. 

Enjoining  diversion  or  use  of.     See  Injunctions. 

Hydraulic  mining,  meaning  of  and  right  of,  §§  1424,  1425. 

Islands,  to  whom  belong,  §§  1016-1018. 

Lake,  state  owns  land  laelow  water  of.  §  670. 

Owners  of  ditch,  flume,  etc.,  in  common,  action  for,  form  of,  parties, 
fees  and  costs,  §  843. 


INDEX.  1283 

WATERS.      (Continued.) 

Owners  of  ditch,  tlume,  etc.,  in  common,  liability  for  maintaining  and 

repairing,  §  842. 
Owners  of  ditch,  flume,  etc.,  in  common,  liability  of  co-owners,  how 

enforced, §  843. 
People,  all  water  or  use  of  water  is  property  of,  §  1410. 
Present  claimant,  rights  of,  §  1420. 
Priority  of  right  to,  §  1414. 

Reclaiming,  after  having  turned  into  other  channel,  §  1413. 
Servitudes,  rights  arising  out  of  as,  §§  801,  802. 
State  is  owner  of  land  below  navigable  lake  or  stream,  §  670. 
Tide  lands,  state  is  owner  of,  §  670. 
Title  to  water  is  in  people  of  state,  §  1410. 

Turning  into  another  channel  and  reclaiming,  right  as  to,  §  1413. 
Use  of  water,  right  of  is  in  people  of  state,  §  1410. 

WAY.     See  Eight  of  Way. 
Boundary  by,  §  831. 
Eeasement  of,  §§  801,  802. 

WHARF  CORPORATIONS,     See  Bridge,  Ferry,  Wharf,  Chute,  and  Pier 
Corporations. 

WHARVES. 

Statutes  governing  wharf  corporations  apply  where  owned  by  indi- 
vidual, §  531. 

WIDOW. 

Legacy  to,  chargeable  with  debts  of  testator,  §  1361. 

Inheritance  by.     See  Succession. 

Interest  on  legacy  to,  when  accrues,  §  1369. 

WIFE.     See  Husband  and  Wife;  Married  Women. 

WILL,  ESTATES  AT.     See  Estates  at  Will;  Landlord  and  Tenant. 
Are  chattel  interests,  §  765. 
Not  subject  to  execution,  §  765. 
Tenancy  at  will,  how  terminated,  §  789. 

WILLFUL  ACTS.     See  Deceit;  Fraud;  Torts;  Wrongs. 
WILLFUL  DESERTION.     See  Divorce. 
WILLFUL  NEGLIGENCE.     See  Divorce. 


1284  INDEX. 

WILLS, 

I.  Who  may  make;  execution  of;  witnesses;  effect  of  code;  agreements 

affecting. 
n.  Validity  of;  omissions  or  mistakes;  mutual  wills. 
III.  What  may  pass  by;  who  may  take  under. 
IV.  Conditions  in. 
V.  Foreign;  laws  governing. 
VI.  Interpretation. 
VII.  Devises  and  legacies;  abatement;  ademption;  lapse;  omitted  chil- 
dren; beneficiaries,  questions  relating  to. 
VIII.  Codicils. 

IX.  Advancements;  annuities;  gifts  causa  mortis. 
X.  Nuncupative. 
XI.  Holographic. 
XII.  Revocation. 
XIII.  Alteration. 
Xrv.  Revival  and  republication. 

Estates  of  decedents.     See  Estates  of  Decedents. 
Succession.     See  Succession. 

I.  Who  may  make;  execution  of;  witnesses;  effect  of  code;  agreements 

affecting. 

Acknowledging,  §  1276. 

Agreement  to  bequeath  to  be  written,  §  1624. 

Agreement  to  devise  to  be  written,  §  1624. 

Agreement  to  provide  for  one  in  will  to  be  written,  §  1624. 

Attested,  how,  §  1276. 

Code,  prior  wills  not  affected  by,  §  1375. 

Competency,  who  has,  to  make,  §  1270. 

Executed,  how,  §  1276. 

Fee,  words  of  inheritance  not  necessary  to  pass,  §  1329. 

Heirs,  etc.,  not  necessary  to  pass  fee,  §  1329. 

Married  woman  may  dispose  of  separate  estate  by,  §  1273. 

Married  woman's,  how  executed  and  proved,  §  1273. 

Publication  of,  §  1276. 

Subscribing,  manner  of,  §  1276. 

Subscribing  testator's  name  by  another,  manner  of,  §  1278. 

Technical  words  not  necessary,  §  1328. 

Who  may  make,  §  1270, 

Witnesses  and  their  attestation.  §  1276. 

Witnesses,  competency  of  creditors  as,  §  1282. 

Witnesses,  creditor  as,  effect  of,  §  1282. 

Witnesses,  effect  of  not  adding  residence,  §  1278. 

Witnesses,  effect  of  their  subsequent  incompetency,  §  1280. 

Witnesses,  gift  to,  and  their  rights  thereon,  §  1283. 

Witnesses,  gifts  to,  validity  of.  §§  1282,  1283. 

Witnesses,  manner  of  signing,  §  1276. 

Witnesses,  number  of,  §  1276. 

Witnesses,  to  add  residence,  §  1278. 

Written,  to  be,  §  1276, 

II.  Validity  of;  omissions  or  mistakes;  mutual  wills. 

Charitable  uses,  bequests  to,  restrictions  on,  §  1313, 
Conditional  will,  validity  of,  §  1281, 


INDEX.  1285 

WILLS.  II.  Validity  of;  omissions  or  mistakes;  mutual  wills.  (Con- 
tinued.) 

Conjoint^  validity,  §  1279. 

Failure  to  comply  with  code  does  not  affect  validity,  when,  §  1278. 

Foreign,  validity  of.     ISee  post,  V. 

Fraud,  menace,  duress,  or  undue  influence,  will  procured  by,  validity 
of,  §  1272. 

Mistakes  and  omissions,  declarations  not  admissible  to  correct,  §  1340. 

Mistakes,  correcting,  §  1340. 

Mutual,  validity,  §  1279. 

Omissions,  supplying,  §  1340. 

Technical  words  not  necessary  in,  §  1328. 

Undue  inlluence,  will  procured  by,  §  1272, 

Witnesses,  gifts  to,  validity  of,  §  1383. 

III.  What  may  pass  by;  who  may  take  under. 

After-acquired  property  passes,  §  1312. 

Alien  inheriting  must  claim  within  five  years,  §  672. 

Bequests  may  be  made  to  whom,  §  1275. 

Charitable  uses,  restrictions  on  power  of  bequest  to,  §  1313. 

Corporations  for  scientific,  literary,  or  educational  purposes,  power  to 

take  under,  §  1275. 
Corporations,  power  of  to  take  under,  §  1275. 
Devise  passes  all  estate  of  devisor,  §§  1311,  1312. 
Gifts  causa  mortis,  effect  of  will,     iriee  post,  VIL 
Life  insurance  may  pass  by,  §  27(54. 
Passes  what  property,  §§  1329, 1331. 
Passes  what  realty,  §§  1311,  1312. 
Property  may  be  acquired  by,  §  1000. 
What  may  pass  by,  §  1274. 
Who  may  take  under,  §  1275. 

IV.  Conditions  in. 

Accumulations.     See  Accumulations. 

Conditional  devises  and  bequests,  defined,  §  1345. 

Conditional  disposition  vests  when,  §  1347. 

Conditional  will,  validity  of,  §  1281. 

Precedent,  if  impossible,  bequest  vests,  when  and  when  not,  §  1347. 

Precedent,  nothing  vests  until  fulfilled,  §  1347. 

Precedent,  when  deemed  performed,  §  1348. 

Subsequent,  defined,  §  1349. 

V.  Foreign;  laws  governing. 

Foreign,  validity  of,  §  1285. 
W^hat  law  governs,  §§  1375,  1376. 

VI.  Interpretation. 

After-acquired  property  passes  by,  §  1312. 

Against  intestacy,  preferred,  §  1326. 

Ambiguous  or  doubtful  parts,  how  may  be  explained  by  other  parts 

of  will,  §  1323. 
Bequest  carries  all  property  owned  at  death,  when,  §  1331. 
Class,  devise  or  bequest  to,  includes  whom,  §§  1337,  1339. 
Class,  posthumous  child  included  in  bequest  to,  §  1339. 
Clear  bequest  not  affected  by  other  provisions,  §  1322. 
Clear  bequest   not   affected   by   reasons,   inferences,   arguments,  etc, 

§  1322. 
Construed  according  to  intent  of  testator,  §  1317. 


1286  INDEX, 

WILLS.     VI.  Interpretation.     (Continued.) 

Conversion,  equitable,  from  what  time  takes  effect,  §  1338. 

Conversion,  equitable,  when  arises,  §  1338. 

Co-tenants,  devisees,  or  legatees,  when  take  as,  §  1350. 

Death,  devises  and  legacies  vest  at,  §  1341. 

Death,  words  in  will  relate  to  time  of,  §  1336. 

Declarations  of  testator  as  to  intent,  not  admissible,  §§  1318,1340. 

Descendants,  rights  under  disposition  to,  §  1334. 

Devise  passes  all  estate  testator  entitled  to  at  death,  §  1312. 

Devise  passes  all  estate  testator  had,  §§  1311, 1329. 

Devise  or  bequest  of  aU  property  passes  what,  §  1331. 

Divested,  disposition  cannot  be  except  on  precise  contingency,  §  1342. 

Divested,  vested  disposition,  when  only  can  be,  §  1342. 

Donation,  what  words  are   words  of   and  not  of  limitation,  "§§  1334, 

1335. 
Estate  conveyed  by,  §  1311. 
Family,  devise  to  what  vests,  §  1334. 
Future  interests  pass  by,  §  699. 
General  devise  or  bequest,  what  passes  by,  §.1331. 
Gifts  causa  mortis,  ettect  of  will.     SJee  jjost,  IX. 
Harmonizing  parts,  where  possible,  §  1321. 
"Heirs/'  etc.,  not  necessary  to  pass  fee,  §  1329. 
Heirs,  relations,  descendants,  etc.,  meaning  of,  §  1334. 
Income,  bequest  of,  when  accrues,  §  1366. 
Intention,  ascertained  how,  §  1318. 
Intention,  circumstances  may  be  considered,  §  1318. 
Intention,  oral  declarations  not  admissible,  §§  1318,  1340. 
Intention,  to  be  carried  out  as  far  as  possible,  §  1317. 
Intention  to  be  drawn  from  words  of  will,  §  1318. 
Intention  to  be  given  effect  as  far  as  possible,  §  1317. 
Intention  to  govern,  §  1370. 

Intention,  will  to  be  construed  according  to,  §  1317. 
Interest,  bequest  of,  when  accrues,  §  1366. 
Intestacy,  construction  avoiding  preferred,  §  1326. 
Irreconcilable  parts,  latter  part  controls,  §  1321. 
Issue,  disposition  to,  rights  under,  §  1334. 
Law  governing,  §§  1285,  1376. 

Legacies,  legatees  take  as  tenants  in  common,  when,  §  1350. 
Legal  representatives,  rights  under  disposition  to,  §  1334. 
Limitation,  words  of,  what  are  not,  §§  1334,  1335. 
Mistakes  and  omissions  in,  declarations  of  testator  to  show  intent 

inadmissible,  §  1340.  * 
Mistakes  and  omissions  in,  evidence  to  correct,  §  1340. 
Mistakes  and  omissions,  how  corrected,  §  1340. 
Nearest  relations,  disposition  to,  rights  under,  §  1334. 
Next  of  kin,  disposition  to,  rights  under,  §  1344. 
Omissions  in,  declarations  of  testator  as  to  intentions,  inadmissible, 

§  1340. 
Omissions  in,  evidence  to  correct,  §  1340. 
Omissions  in,  how  corrected,  §  1340. 
Oral  declarations  excluded,  §§  1318,  1340. 
Partial  intestacy  not  favored,  §  1326. 
Passes  after-acquired  estate,  §  1312. 
Passes  what  property,  §§  1329,  1331. 
Passes  what  realty,  §§  1311,  1312. 

Personal  representatives,  rights  under  disposition  to,  §  1334. 
Posthumous  child  included  in  bequest  to  a  class,  §  1339. 


INDEX.  1287 

WILLS.     VI.  Interpretation.     (Contiuued.) 

Power   to    devise,    executed   by   will    devising   all    testator's    estate, 
§  1330. 

Power  to  devise,  how  executed  by  terms  of  will,  §  1330. 

Relations,  disposition  to,  rights  under,  §  1334. 

Relatives,  interpretation  of,  §  1334. 

Representatives,  rights  under  disposition  to,  §  1334. 

Residue,  devise  or  bequest  of,  what  passes,  §§  1332,  1333. 

Resort  to  other  parts  of  will  or  to  references,  where  meaning  doubt- 
ful, §  1323. 

Rule  of  descent,  §  1386. 

Rules  prescribed  by  code  to  be  observed,  §  1319. 

Several  testamentary  instruments  to  be  construed  together,  §  1320. 

Shelley's  Case,  rule  in,  abolished,  §  1335. 

Technical  words,  how  construed,  §  1327. 

Technical  words  not  necessary  in,  §  1328. 

Tenants  in  common,  beneficiaries,  when  take  as,  §  1350. 

Time  of  creation  of  interest  created  by,  §  749. 

Time,  words  in  will  relate  to  what  time,  §  1336. 

Vested,  disposition  is,  when,  §  1341. 

Vesting  of  legacies  and  devises,  time  of,  §  1341, 

Vest,  legacies  and  devises,  when,  §  1341. 

Words  of  donation  and  not  of  limitation,  what  words  are,  §§  1334, 
1335. 

Words  refer  to  what  time,  §  1336. 

Words  taken  in  ordinary  sense,  §  1324. 

Words  to  be  made  operative,  rather  than  inoperative,  §  1325. 

VII.  Devises  and  legacies;   abatement;   ademption;   lapse;   omitted  chil- 
dren;  beneficiaries,  questions  relating  to. 

Abatement,  when  takes  place,  §  1362. 

Ademption,  apportionment  in  case  of  pretermitted  child,  §  1308. 

Ademption,  when  only  advancement  is,  §  1351. 

After-born  child,  share  of,  out  of  what  part  of  estate  to  be  paid, 
§1308. 

Apportionment  of  devises  and  legacies,  in  case  of  pretermitted  child, 
§  1808. 

Bequest  of  testator's  property  passes  all  property  owned  at  death, 
when,  §  1331. 

Charitable  uses,  beqilests  to,  validity  of  and  restrictions  on,  §  1313. 

Child  born  after  will,  rights  of,  §  1306. 

Class,  devise  or  bequest  to,  includes  whom,  §§  1337,  1339. 

Class,  posthumous  child  included  in  bequest  to,  §  1339. 

Clear  bequest  not  affected  by  other  provisions,  §  1322. 

Clear  bequest  not  affected  by  reasons,  inferences,  or  arguments,  etc., 
§  1322. 

Conveyance  by  heir  claiming  by  succession,  good  unless  will  filed  in 
four  years  or  notice  of  devise  filed,  §  1364. 

Co-tenants,  devisees,  or  legatees  take  as,  when,  §  1350. 

Death,  devises  and  legacies  vest  at,  §  1341. 

Death  of  devisee  in  lifetime  of  testator,  rights  of  descendants,  §  1310. 

Death  of  legatee  or  devisee  before  testator,  effect  of,  §§  1343,  1344. 

Debts,  liability  of  beneficiaries  for,  §  1377. 

Devise  carries  all  estate  of  devisor,  §§  1311, 1329. 

Devise,  clear  and  distinct,  not  affected  by  other  provisions,  §  1322. 

Devise,  clear  and  distinct,  not,  affected  by  reasons,  inferences,  argu- 
ments, etc.,  §  1322. 

Devise,  conditional,  defined,  §  1345. 


1288  INDEX, 

WILLS.     VII.  Devises     and     legacies;     abatement;     ademption;     lapse; 
omitted    children;    beneficiaries,    questions    relating    to.     (Con- 
tiuued.) 
Devise,  extent  of  estate  conveyed  by,  §  1311. 
Devise  lapses,  when,  §§  1343, 1344. 
Devise  passes  after-acquired  interest,  §  1312. 
Devise  passes  all  estate  owner  at  death,  §  1312. 
Devise,  residuary,  what  passes,  §  1332. 
Devise,  specific,  ijossession  how  obtained,  §  1363. 
Devise,  specific,  sale  of  property,  §  1363. 
Devise,  specific,  title  passes  by  will,  §  1363. 
Devise,  vests  at  death,  §  1341. 

Devisee,  liability  for  obligation  of  testator,  §  1377. 
Devisee,  remedies  of,  for  rent,  non-performance,  waste,  or  forfeiture, 

§  82 1-. 
Devisee,  warranty  of  devisor,  liability  on,  §  1115. 

Divested,  disposition  cannot  be,  except  on  precise  contingency,  §  1342. 
Fee,  word  heirs  or  words  of  inheritance  not  necessary  to  pass,  §  1329. 
Interest  vests,  when.     See  ante,  VI. 
Inventory  of  property  by  legatee  for  life,  §  1365. 
Legacy,  abatement  of,  §  1362. 

Legacy,  clear  and  distinct,  not  affected  by  other  provisions,  §  1322. 
Legacy,  clear  and  distinct,  not  affected  by  reasons,  inferences,  argu- 
ment, etc.,  §  1322. 
Legacy,  conditional,  defined,  §  1345. 
Legacy,  demonstrative,  defined,  §  1357. 
Legacy,  demonstrative,  failure  of  fund,  effect  of,  §  1357. 
Legacy,  due  when,  §§  1368,  1370. 
Legacy,  general,  is  what,  §  1357. 
Legacy,  interest  on,  §§  1369,  1370. 

Legacy  in  view  of  death,  satisfying  before  death,  §  1367. 
Legacy,  kinds  of  legacies,  §  1357. 
Legacy  lapses,  when,  §§  1343,  1344. 

Legacy,  order  of  resort  to  property  for  payment  of,  §§  1360,  1361, 
Legacy  passes  all  i)ersonalty  of  testator,  when,  §  1331. 
Legacy,  preference  of  to  kindred,  §  1361. 
Legacy,  residuary,  defined,  §  1357. 
Legacy,  residuary,  embraces  what,  §  1357. 
Legacy,  residuary,  what  passes,  §  1333. 
Legacy,  specific,  §  1357. 

Legacy,  specific,  eft'cct  of  failure  of,  §  1357. 
Legacy,  specific,  possession,  how  obtained,  §  1363. 
Legacy,  specific,  sale  of  property,  §  1363. 
Legacy,  specific,  title  passes  by  will,  §  1363. 
Legacy,  to  kindred,  preference  of  in  payment  of  debts,  §  1361. 
Legacy,  vests  at  death,  §  1341. 

Legatee  for  life,  inventory  by  and  what  to  contain,  §  1365. 
Legatees,  liability  for  obligations  of  testator,  §  1377. 
Posthumous  child  included  in  bequest  to  class,  §  1339. 
Pretermitted  child,   effect   of   advancement    to,  §  1309. 
Pretermitted  child,  or  issue  of  child,  rights  of,  §  1307. 
Pretermitted  child,    share   out   of   what   part   of   estate   to   be   paid, 

§  1308. 
Eesiduary  clause,  what  passes,  §§  1322,  1323. 
Sale  under  will  not  affected  by  succession  of  omitted  child,  §§  1306, 

1307. 
Specific  devise  or  legacy,  possession,  how  obtained,  §  1363. 
Specific  devise  or  legacy,  title  passes  by  will,  §  1363. 


INDEX.  1289 

WILLS.     VII.  Devises     aud    legacies;     abatement;     ademption;     lapse; 

omitted    children;    beneficiaries,    questions    relating    to.     (Cou- 

tiuued.) 
Specific  legatee  for  life,  inventory  by  and  wliat  to  contain,  §  1365. 
Succession.     See  Succession. 

Technical  words  not  necessary  to  bequest,  §  1328. 
Tenants  in  common,  devisees  or  legatees  when  take  as,  §  1350. 
Witnesses,  gifts  to  and  riglits  thereon,  §  1283. 
Witness,  gitts  to,   validity  of,  §  1283. 

VIII.  codicils. 
Eepublication   by,  §  1287. 

Eepublieation  of  will,  codicil  has  effect  of,  §  1287. 
Kevocation  of  will  revokes,  §  1305. 
Will  includes,  §  14. 

IX.  Advancements;   annuities;   gifts  causa  mortis. 
Advancement,  death  of  beneficiary  receiving,  effect  on  heirs,  §  1399. 
Advancement,  effect  of,  §  1309.  ^ 

Advancement,  effect   on  distributive  shares,  §§  1395,   1396. 
Advancement,  greater  or  less  than  distributive  share,  effect  of,  §  1396. 
Advancement  to  pretermitted  child,  effect  of,  §  1309. 
Advancement,  value  of,  how  determined,  §  1398. 
Advancement,  when  only  an  ademption,  §  1351. 
Advancement.     See  Advancements. 
After-born  children,  effect  of  advancement  to,  §  1308. 
Annuities  commence  when,  §§  136S,  1370. 
Annuity  defined,  §  1357. 
Annuity,  effect  of  failure  of  fund,  §  1357. 
Annuity,  failure  of  fund,  resort  to  other  property,  §  1357. 
Gift  causa  mortis,  effect  of  will  on,  §  1152. 
Gift  causa  mortis,  how  far  treated  as  legacy,  §  1153. 
Gift  in  view  of  death,  satisfying  before  death,  §  1367. 

X.  Nuncupative. 

How  executed,  §  1288. 

Limited  to  $1,000,  §  1289. 

Need  not  be  written,  §  1276. 

Probate  of,  not  to  be  granted  until  after  fourteen  days,  §  1291. 

Probate  of,  process  to  interested  parties,  §  1291. 

Probate    of,   testamentary    words   to    be   reduced   to   writing   before, 

§  1291. 
Proof  of,  limitation  on  time  for,  §  1290. 
Requisites   of,  §  1289. 
To  be  reduced  to  writing,  §  1291. 
When   may   be   made,  §  1289. 
Who  may  make,  §  1289. 
Witnesses,  §  1289. 
Words  to  be  reduced  to  writing  in  thirty  days,  §  1290. 

XI.  Holographic. 

Defined,  §  1277. 

Manner  of  executing,  §  1277. 

XII.  Revocation. 

Alteration  in  interest  disjiosed  of,  when  is,  §  1304. 

By  duress,  void,  §  1272. 

By  fraud,  void,  §  1272. 

By  subsecjuent  will,  £ff'ect  of  as,  §  1296. 

By  undue  influence,  void,  §  1272. 

Charge  or  encumbrance  upon  land  as,  §  1302. 


1290  INDEX. 

WILLS.     XII.  Revocation.      (Continued.) 
Conjoint,  revocation  of,  §  1279. 
Contract  for  transfer  of  property  not  a,  §  1301. 
Conveyance,  effect  of,  on,  §§  1301,  1303,  1304. 
Conveyance  as  a,  §§1302,  1303. 

Does  not  revive  prior  will,  unless  will  republished,  §  1297. 
Duplicate,  revocation  of  will  executed  in,  §  1295. 
Evidence  of,  when  canceled  by  third  person,  §  1293. 
In  what  way  accomplished,  §  1292. 
Marriage  and  birth  of  issue,  effect  of,  §  1298. 
Marriage  and  birth  of  issue,  evidence  to  rebut  presumption  of,  from, 

§  1298. 
Marriage,  evidence  to  rebut  presumption  of  revocation  by,  §  1299. 
Marriage  of  man,  effect  of,  §  1299. 
Marriage  of  woman,  effect  of,  §  1300. 
Marriage  of  woman  revokes  her  will,  §  1300. 
Married  woman  may  revoke  will,  §  1273. 
Mortgage  not  a,  §  1302.    . 
Mutual,  revocation  of,  §  1279. 
Of  will  in  duplicate,  §  1295. 
Provisions  as  to,  to  what  wills  apply,  §  1374. 
Eevoked,  how,  §  1292. 
Eevokes  codicil,  §  1305. 
Subsequent  will,  effect  of  as  revocation,  §  1296. 

XIII.  Alteration, 

Alteration  in  testator's  interest,  when  a  revocation,  §  1304. 

How  effected,  §  1292. 

Married  woman  may  alter,  §  1273. 

XIV.  Revival  and  republication. 

Codicil  has  effect  of  republication,  §  1278. 

Marriage,  will  revoked  bj',  not  revived  by  death  of  husband,  §  1300. 
Republication  of  codicil,  §  1287. 

Revive,  revocation  of  subsequent  will  does  not,  unless  intention  ap- 
pears by  terms  of  revocation,  §  1297, 

WINE. 

Recording  sale  of,  §  3440. 

Sale  of,  delivery  not  necessary  to  validity  of,  when,  §  3440. 

Sale  of  to  be  in  writing,  §  3440, 

WITNESSES, 

Acknowledgment  by,  requisites  for,  §  1185. 

Depose  defined,  §  14. 

Handwriting  of,  proved  how,  §  1199. 

Handwriting  of,  when  may  be  proved,  §  1198. 

Mark,  signature  by,  two  witnesses  necessary,  ^when,  §  14. 

Nuncupative  will,  to,  §  1289. 

Oath  of,  in  taking  acknowledgment,  §  1185. 

Olographic  will,  not  necessary  to,  §  1277. 

Privileged  testimony,  §  47. 

Subscribing,  manner  of  proving  instrument  by,  §§  1195-1197. 

Subscribing,  to  be  known  to  officer  taking  proof,  §  1196. 

Subscribing,  to  prove  what,  §  1197. 

Subscription  includes  mark,  §  14. 

Testify  includes  what,  §  14. 

Will,  creditor  as  witness  to,  effect  of,  §  1282, 


INDEX.  1291 

WITNESSES.      (Continued.) 
Will,  to,  §§  1276-1279. 
Will,  to,  cannot  take  under,  §  1282. 

When  may  take  as  much  as  amount  of  bequest  under  will  by  suc- 
cession, §  1283. 

WOOD. 

Right  to  take,  §§  801,  802. 

WOODS.     See  Trees. 

WORDS  AND  PHRASES.     See  Definitions. 
Agent  of  the  state,  §  1001. 
Building  and  loan  associations,  §  648. 
Completion,  §  1417. 
Construction  of,  §  13. 

Contracts,  words  in,  construction  of.     See  Contracts,  VII. 
Conveyance,  §  1215. 
Corporation,  person  includes,  §  14. 
County  includes  city  and  county,  §  14. 
Create  any  debts,  §  453cc. 
Create  debts,  §  579. 
Depose,  what  included  in,  §  14. 
Descendants,  §  1334. 
Donation  and  limitation  in  will,  §  1335. 
Encumbrances,  §  1114. 
Entire  mortgage  guaranty,  §  453bb. 
Family,  §  1334. 
Grant,  §  1053. 

"Grant,"  covenants  implied  from,  §  1113. 
Head  of  a  family,  §  1261. 
Heirs,  §§  1071,  1334. 

Inheritance,  words  of,  not  necessary  to  pass  fee,  §  1072. 
Interpretation  of  doubtful,  §§  1068,  1654. 
Issue,  §§  1071,  1334. 

Joint  authority,  giving,  how  construed,  §  12. 
Legal  representatives,  §  1334. 

Mark,  included  in  signature  or  subscription,  §  14. 
Masculine  gender  includes  feminine  and  neuter,  §  14. 
Month,  §  14. 

Mortgage  insurance  company,  §  453bb. 
Mortgage  participation  certificate,  §  453bb. 
Nearest,  §  1334. 
Nearest  relations,  §  1334. 
Next  of  kin,  §  1334. 

Oath  includes  affirmation  or  declaration,  §  14. 
Person  in  charge  of  public  use,  §  1001. 
Person  includes  corporation, §  14. 
Personal  property,  §  14. 
Personal  representatives,  §  1334. 
Plural  includes  singular,  §  14. 
Policy  of  mortgage  insurance,  §  453bb. 
Present  tense  includes  future, §  14. 
Printing,  writing  includes,  §  14. 
Property  includes  realty  and  personalty,  §  14. 
Real  property,  §  14. 
Relations,  §  1334. 
Representatives,  §  1334. 
Section,  §  14. 


1292  INDEX. 

WORDS  AND  PHRASES.      (Coutiiiuod  ) 
Security,  §  453bb. 
Shipping,  §  960. 
Ships,  §  960. 

Signature  includes  mark,  §  14. 
Singular  includes  plural,  §  li. 
Subscription  includes  mark,  §  1-i. 
Taken  in  ordinary  sense,  §§  1324,  1644. 
Technical,  how  construed,  §§  13,  1327,  1645. 
Technical,  not  necessary  in  will,  §  1328. 
Testify,  what  included  in,  §  14. 
To  be  given  some  meaning  if  possible,  §  1326. 
Typewriting,  writing  includes,  §  14. 
Will,  construction  ot  words  in.     See  Wills,  VI. 
Will  includes  codicil,  §  14, 
Will,  in,  to  what  time  refer,  §  1336. 
Will,  to  receive  operative  construction  in,  §  1335. 
Writing,  includes  printing,  §  14. 
W  riting  includes  typewriting,  §  14. 

WORKMANSHIP. 

Ownership  of  property  formed  by  materials  and,  §  1028. 

WRECKS  AND  WRECKED  PROPERTY, 

Involuntary  deposit  in  case  of  shipwreck,  §  1815. 

Duty  of  depositary  in  such  case,  §  1816. 

Wages  of  seamen  not  lost  by  shipwreck,  when,  §  2058. 

WRITING,     See  Statute  of  Frauds, 

Action  to  obtain  judgment  proving  instrument,  §  1203, 

Burnt  records  and  documents.     See  Burnt  Records  and  Documents, 

Certilicate  of  proof  of  instrument,  what  to  state,  §  1200, 

Code  does  not  affect  instruments  made  before,  §§  1205,  1206, 

Contract,  in,  controls  printed  parts,  §  1651. 

Contract  in,  how  altered,  §  1698. 

Contract  prevented  by  traud  from  being  put  in,  enforced  when, 
§  1623. 

Erroneous,  how  far  disregarded,  when,  §  1640, 

Fire,  destruction  by,  re-establisnment  and  re-execution  of,  §  3415, 

Includes  printing,  S  -1-4. 

Instrument,  proved  how,  when  not  acknowledged,  §  1195.  See  Ac- 
knowledgments. 

Intention  of  parties  to  be  ascertained  from,  §  1639. 

Non-negotiable  instrument  in,  transferable  by  indorsement,  §  1459. 

Presumption  as  to  value  of  instrument  in  writing,  §  3356, 

Private,  property  in,  §  985. 

Proof  of.     See  Acknowledgments. 

Property  in.     See  Literary  Property. 

Sale  of  written  instrument,  warranty  on,  §  1774. 

Subscribing  witness,  proof  of  instrument  by,  §§  1195-1197, 

Supersedes  oral  negotiations,  §  1625. 

lype writing,  includes,  §  14. 

\v  arranty  on  sale  of  written  instrument,  §  1774. 

WRONG.     See  Tort. 

Animals,    willful    or    negligent    injuries   to,    exemplary    damages   for, 

§  3340. 
Carrier  cannot  exempt  himself  from  liability  for,  §  2175. 
Damages  for,  measure  of,  §§  3333-3341. 


INDEX.  1293 

WRONG.     (Continued.) 

He  who  consents,  suffers  no,  §  o51~). 

Infringements  upon  rights  of  others,  duty  to  abstain  from  inflicting, 

§  1708. 
Injuries  to  others,  duty  to  abstain  from  inflicting,  §  1708. 
Law  does  not  interpose  between  parties  equally  in,  §  3524. 
Liability  for  willful  acts,  §  1714. 
Minors  and  lunatics  liable  for,  §  41. 

No  one  can  be  permitted  to  take  advantage  of  his  own,  §  3517. 
Eemedy  for  every,  §  3523. 

Eestoration  of  thing  wrongfully  acquired,  §§  1712,  1713. 
Seduction,  damages  for,  §  3339. 


Y 

YEAR. 

Contract  not  be  performed  within,  to  be  written,  §  1624. 
What  deemed  to  be  in  computation  of  interest,  §  1917. 

YEARS,  ESTATES  FOR. 

Are  chattels  real,  §  765. 

Limitation  on  power  of  suspension,  §  770. 


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